POLITICAL LAW

Constitution is that written instrument enacted by direct action of the

people by which the fundamental powers of the government are established

limited and defined, and by which these powers are distributed among the

several departments for their safe and useful exercise for the benefit of the

body politic.

Under the doctrine of constitutional supremacy, if a law or contract

violates any norms of the Constitution, that law or contract whether

promulgated by the legislature of the executive or entered into by private

person for private purpose is null and void and without any force and effect.

Thus, since the Constitution is the fundamental, paramount and supreme law, it

is deemed written in every statute and contracts.

The Constitution of Liberty contains the fundamental civil and political

rights of every citizen, as well as the limitations of the powers of the

government to secure the enjoyment of the rights of the citizens.

The Constitution of sovereignty contains the provisions on how changes

in the Constitution may be made.

The Constitution of Government enumerates the powers of government

and outlines its organization.

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 Amendment refers to the change that reduces, adds or deletes without

altering the basic principle involved and generally affects only the specific

provision being amended.

Revision implies change that alters a basic principle in the Constitution.

Test to determine whether the proposal is an amendment or revision:

a. Quantitative test asks whether the proposed change is so extensive in its

provision as to change directly the substantial entirety of the constitution

by the deletion or alteration of numerous existing provisions. The court

examines only the number of provisions affected and does not consider

the degree of change.

b. Qualitative test inquires into the qualitative effects of the proposed change

or changes in the constitution. The main inquiry is whether the change will

accomplish such far reaching changes in the nature of our basic

governmental plan as to amount to a revision. Whether there is an

alteration in the structure of government is the proper subject in the

inquiry.

Any amendments to, or revision of, the Constitution may be proposed by:

a. The Congress, upon a vote of three-fourth of all its members; or

b. A constitutional convention

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 Amendment to the Constitution may likewise be directly proposed by the

people through initiative upon a petition of at least twelve per centum of the

total number of registered voters, of which every legislative district must be

represented by at least three per centum of the registered voters therein. No

amendments under this section shall be authorized within five years following

the ratification of the Constitution nor oftener than once every five years

thereafter.

The Congress may, by a vote of two-thirds of all its members, call a

constitutional convention, or by submitting to the electorate the question of

calling such a convention.

Any amendment to, or revision, under section 1 of the Constitution shall

be valid when ratified by a majority of the votes casts in a plebiscite which shall

be held not earlier than sixty days nor later than ninety days after the approval

of such amendment or revision.

Any amendment to the Constitution under section 3 shall be valid when

ratified by a majority votes cast in a plebiscite which shall be held not earlier

than sixty days nor later than ninety days after the certification of the

Commission on Elections of the sufficiency of the petition.

The doctrine of proper submission provides that in order that a plebiscite

for the ratification of an amendment to the Constitution may be validly held, it

must provide the voter not only sufficient time but ample basis for an intelligent

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appraisal of the nature of the amendment per se as well as its relation to the

other parts of the Constitution with which it has to form a harmonious whole.

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Methods of interpreting the Constitution

Verba legis – the words of used in the constitution must be given their

ordinary meaning except where technical terms are employed.

Ratio legis et anima – where there is ambiguity, the words of the

constitution should be interpreted in accordance with the intent of the framers.

Ut magis valeat qualm pereat – the Constitution is to be interpreted as a

whole. In other words, the court must harmonize them, if practicable, and must

lean in favor of a constitution which will render every word operative, rather

than one which may take the words idle and nugatory.

In the determination whether a constitutional provision is mandatory or

directory, the prime object is to ascertain the legislative intent.

Self-executing provision is one which is complete in itself and becomes

operative without the aid of supplementary or enabling legislation or that which

supplies a sufficient rule by means of which the right it grants may be enjoined

or protected.

The Philippines is a democratic and republican state. Sovereignty resides

in the people and all government authority emanates from them.

The doctrine of incorporation provides that the Philippines adopts the

generally accepted principle of international law as part of the law of the land

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and adheres to the policy of peace, equality, justice, freedom, cooperation and

amity with all nations.

Doctrine of parens patriae

When actions concerning the child have a relation to the public welfare or

the well-being of the child, the State may act to promote these legitimate

interests. As parens patriae, the State has the inherent right and duty to aid the

parents in the moral development of their children, and thus, assumes a

supporting role for parents to fulfill their parental obligations.

Independent national economy means that the constitutional policy of a

self-reliant and independent national economy does not necessarily rule out the

entry of foreign investments, goods and services. It contemplates neither

economic seclusion nor mendicancy in the international community.

The State shall ensure autonomy of local governments. The territorial and

political subdivisions shall enjoy local autonomy. The principle of local

autonomy under the 1987 Constitution simply means “decentralization”. It does

not make the local government sovereign within the state or an imperium in

imperio. This also means that local officials remain accountable to the central

government in the manner the law may provide.

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 Sovereignty is the supreme and uncontrollable power inherent in a State

by which that State is governed. The power of the State to dictate its external

affairs without interference or dictates from other state.

Limitations on sovereignty

The sovereignty of a state cannot in fact and in reality, be considered

absolute. Certain limitations enter into the picture.

a. Limitations imposed by the very nature o \f its membership into the

community of nations; and

b. Limitations imposed by treaty stipulations.

Under the doctrine of auto limitation, any state may, by its consent,

express or implied, submit to a restriction of its sovereign rights.

Effect of change of sovereignty on the laws of the former sovereign.

The political law of the former sovereign, whether compatible or not

compatible with the new sovereign, shall automatically abrogated, unless they

are expressly re-0enacted by the new sovereign. The municipal laws of a

conquered territory, or the laws which regulate the private rights, continue in

force during military occupation, except so far as they are suspended or

changed by the acts of the conqueror.

The principle of jus postliminium provides that at the end of the

occupation, when the occupant is ousted from the territory, the political laws

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which had been suspended during the occupation shall automatically become

effective again.

What is the exception to the rule that suits filed against unincorporated

government agencies are actions against the State?

There is a need to distinguish between the unincorporated government

agency preforming governmental function and one performing proprietary

functions The immunity has been upheld in favor of the former because its

function is governmental or incidental to such function; it has not been upheld in

favor of the latter whose function was not in pursuit of a necessary function but

was essentially a business.

The suit is regarded as one against the state where the satisfaction of the

judgment against the officials will require the state itself to perform a positive

act, such as the appropriation of the amount necessary to pay the damages

awarded against the State.

When may the State give its implied consent to be sued?

a. When the State entered into a private contract, unless the contract is only

incidental to the performance of a government function. This concept of

restrictive theory holds that the immunity of the sovereign is recognized

only with regard to public acts or acts jure imperii, but not with regard to

private acts or acts jure gestionis.

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 b. When the State enters into an operation that is essentially a business

operation, unless the business operation is incidental to the performance

of a government functions.

c. When the state sues a private party, unless the suit is entered into only to

resist a claim.

d. When the application of the doctrine of state immunity would serve as an

instrument for perpetuating an injustice to a citizen, as when the State

enters and takes possession of a private property without just

compensation, and without first initiating regular expropriation

proceedings.

Separation of power is the demarcation of the three fundamental powers

of government. The purpose of which is to prevent concentration of authority in

one person or group of persons that might lead to an irreversible error or abuse

in its exercise to the detriment of republican institutions.

The principle of checks and balance is a mechanism by which one

department is allowed to resist encroachment upon its prerogatives or to rectify

mistakes or excesses committed by the other departments.

Delegated power constitutes not only a right but a duty to be performed

by the delegate through the instrumentality of his own judgment and not

through the intervening mind of another.

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 Completeness test provides that the law must be complete in all its

essential terms and conditions when it leaves the legislature so that there will

nothing left for the delegate to do when it reaches him except to enforce it.

Sufficient standard test is intended to map out the boundaries of the

delegate’s authority by defining the legislative policy and indicating the

circumstances under which it is to be pursued or effected.

Police power pertains to the state’s authority to enact legislation that may

interfere with personal liberty or property in order to promote the general

welfare. It consists of an imposition or restraint upon liberty or property, in order

to foster the common good, it is not capable of an exact definition but has been,

purposely, veiled in general terms to underscore its all-comprehensive

embrace.

Lawful subject – the power will be exercised to promote the interest of the

public as distinguished from those of a particular class.

The interests of the public in general, as distinguished from those of a

particular class require the exercise of the power. This means that the activity

or property sought to be regulated affects the general welfare, if it does, then

the enjoyment of the right flowing therefrom may have yield to the interest of

the general public.

Lawful means – the means employed are reasonably necessary for the

accomplishment of the purpose and not unduly oppressive on individuals.

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Police power versus Eminent domain

As to effects on property rights

P – Impaired by regulation

E – Appropriated and applied for public use

As to payment of just compensation

P – payment is not required

E – Necessary

As to nature of property condemned

P – noxious or intended for noxious means

E – Wholesome

The power of taxation is the power to levy taxes to be used for public

purpose. its main purpose is revenue generation.

The national territory comprises of the Philippine archipelago, with all the

islands and waters embraced therein, and all other territories over which the

Philippines has sovereignty and jurisdiction, consisting of its territorial, fluvial,

and aerial domain, including the territorial sea, the seabed, the subsoil, the

insular shelves, and other submarine areas. The waters around, between, and

connecting the islands of the archipelago, regardless of their breadth and

dimensions, form part of the internal waters of the Philippines.

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 Under the archipelagic doctrine, a straight baseline is drawn by

connecting the outermost points of the archipelago and considering all the

waters enclosed thereby as internal waters.

The right to innocent passage is a customary international law, thus

automatically incorporated in the corpus of Philippine law. No modern state can

validly invoke its sovereignty to absolutely forbid innocent passage that is

exercised in accordance with customary international law without risk of

retaliatory measures from the international community.

Citizenship is a personal and, more or less a permanent membership in a

political community. It denotes possession within the particular political

community of full civil and political rights subject to special disqualification.

Who are natural-born citizens of the Philippines?

1. Those who are citizens of the Philippines from birth without having to

perform any act to acquire or perfect their Philippine citizenship; and

2. Those who are born before January 17, 1973, of Filipino mothers, who

elect Philippine citizenship upon reaching the age of majority.

Modes of acquiring citizenship

a. By birth; and

b. By naturalization

What are the two historical modes of acquiring citizenship by birth?

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The principles that can qualify a person to being natural-born citizen are:

a. Principle of jus sanguinis – acquisition of citizenship on the basis of blood

relationship; and

b. Principle of jus soli – acquisition of citizenship in the basis of place of

birth.

What are the modes of acquiring citizenship by naturalization?

a. Judicial naturalization;

b. Administrative naturalization;

c. Derivative naturalization; and

d. Legislative naturalization

Judicial naturalization covers all aliens regardless of class

Administrative naturalization covers native-born aliens who lived here in the

Philippines all their lives, who never saw any other country and all along

thought that they were Filipinos, and who have demonstrated love and loyalty to

the Philippines and affinity to the customs and traditions.

Derivative naturalization applies to any foreign woman who is married to a

citizen of the Philippines and who might herself lawfully naturalized.

Legislative naturalization is applicable where the Congress enacts a law

bestowing Philippine citizenship to an alien.

How is Philippine citizenship lost?

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 a. Naturalization in foreign country;

b. Express renunciation of citizenship (Expatriation);

c. Oath of allegiance to support constitution or laws of a foreign country;

d. Rendering service to or accepting commission in the armed forces of as

foreign country;

e. Cancellation of certificate of naturalization;

f. Having been declared by competent authority a deserter of the Philippine

army, navy or air corps in time of war.

Naturalization is a mode for both acquisition and reacquisition of

Philippine citizenship.

Repatriation, on the other hand, may be had under various statutes by

those who lost their citizenship due to:

a. Desertion of the armed forces;

b. Service in the armed forces in World War II;

c. Service in the armed forces of the United States at any other time;

d. Marriage of a Filipino woman to an alien;

e. Political and economic necessity.

Dual citizenship arises when, as a result of concurrent application of the

different laws of two or more states, a person simultaneously considered a

national by the said states.

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Dual allegiance refers to the situation in which a person simultaneously owes,

by some positive act, loyalty to two or more states.

DC. as a result of concurrent application of the laws or two or more states, a

person is simultaneously considered a national by the said states.

DA refers to the situation in which a person simultaneously owes, by some

positive act, loyalty to two or more states.

Rules in the apportionment of legislative district.

a. They shall be made in accordance with the numbers of their respective

inhabitants and on the basis of a uniform and progressive ratio;

b. Each city with at least 250,000 inhabitants, is entitled to at least 1

representative;

c. Each province, irrespective of the numbers of inhabitants, is entitled to at

least 1 representative;

d. Each legislative district shall comprise, as far as practicable, a

contiguous, compact and adjacent territory;

e. Within 3 years following the return of every census, the Congress shall

make a reapportionment of legislative districts.

Six-point parameters for screening party-list participant as set by the Supreme

Court are as follows:

a. Three different groups may participate in the party-list system:

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 a. National parties or organizations;

b. Regional parties or organizations;

c. Sectoral parties or organizations;

b. National parties or organizations and regional parties or organizations do

not need to organize along sectoral lines and do not need to represent

any “marginalized and underrepresented” sector;

c. Political parties can participate in party-list elections provided they register

under the party-list system and do not field candidates in legislative

district elections. A political party, whether major or not, that fields

candidates in legislative district elections may still participate in party-list

elections but only through sectoral wing that must separately register

under the party-list system. The sectoral wing is by itself an independent

sectoral party and is linked to the political party only through a coalition;

d. A sectoral party or organization is one whose principal advocacy pertains

to the special interest and concerns of a specific sector of the population.

A sectoral party or organization may either be one who:

a. Represents the marginalized and underrepresented, e. g. laborers,

peasants, fisherfolks, urban poor, indigenous cultural communities,

the handicapped, veterans, overseas Filipinos; or

b. lacks a well-defined political constituency, e. g. women, security

guards, LPG dealers, etc.;

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 e. A majority of the members of the sectoral parties or organizations that

represent the “marginalized and underrepresented’ must belong to the

“marginalized and underrepresented” sector they represent. Similarly, a

majority of the member of sectoral parties or organization that lack “well-

defined political constituency must belong to the sector they represent.

The nominees of sectoral parties or organizations that represents the

marginalized or underrepresented or that represent those who lack well-

defined political constituency either must belong to their respective

sectors, or must have a track record of advocacy for their respective

sectors.

f. National, regional and sectoral parties or organization shall not be

disqualified if some of their nominees are disqualified, provided that they

have at least one nominee who remains qualified.

Parameters in the election of Party-lists.

a. 20% allocation – 20% of the total membership of the house of

representative is the maximum number of seats allocated for party-

list representatives

b. 2% threshold – a guaranteed seat for a party-list organization

garnering at least 2% of the total vote casts. The guaranteed seats

shall be distributed in a first round of seat allocation to parties that

received at least 2% of the total party-list votes;

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 c. Proportional representation – The additional seats, that is, the

remaining seats after allocation of the guaranteed seats, shall be

distributed to the party-list organizations including those that

received less than 2% of the total votes;

d. The three-seat cap – each qualified party, regardless of the number

of votes it actually obtained is entitled only to a maximum three

seats.

Any elected party-list representative who changes his/her political party or

sectoral affiliation during his term of office shall forfeit his seat. Provided, that if

he/she changes his/her political party or sectoral affiliation within 6 months

before the election, he/she shall not be eligible for nomination as party-list

representative under his/her new party or organization.

Legislative privileges granted to members of Congress.

a. Privilege from arrest – In all offenses punishable by not more than 6 years

imprisonment, a Senator or member of the House of Representatives

shall be privileged form arrest while the congress is in session. Session

covers the entire period from its initial convening until its final

adjournment;

b. Parliamentary privilege of speech – They shall not be questioned nor be

held liable in any other place for any speech or debate made in the

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 Congress or in any committee thereof. However, he/she can be subjected

to disciplinary actions by the congress itself.

Requisites to avail of the privilege of speech and debate.

a. The remarks must be made while the congress is in session;

b. The remarks must be in connection with the discharge of official duties.

Disqualifications imposed upon members of Congress as regards holding other

office.

a. Incompatible office – No member of Congress may hold any office or

employment in the government or any subdivision, agency or

instrumentality thereof, including GOCCs or their subsidiaries during

his/her term without forfeiting his/her seat. However, no forfeiture shall

take place if the member of Congress holds the other government office

in an ex officio capacity.

b. Forbidden office – He shall not be appointed to any office which may have

been created or whose emoluments had been increased during the term

for which he/she was elected.

How are laws enacted?

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A bill is signed by its authors and submitted to the secretary of the House. It

may originate in either the lower or the upper house, except appropriation,

private bill, revenue or tariff bill, bill increasing public debt or bill of local

application, which shall exclusively originate from the House of

Representatives.

1. First reading – reading of the title and number of the bill, which is then

referred to the appropriate committee for study and recommendation,

which may include the conduct of public hearings. The committee will

submit its report and recommendation for calendar for second reading;

2. Second reading – reading of the bill in full with the amendments proposed

by the committee, if any, unless copies thereof are distributed and such

reading is dispensed with. The bill will be subject to debates, pertinent

motions and amendments. After the amendments shall have been acted

upon, the bill will be voted on second reading;

3. Third reading – submission of the bill as approved on second reading for

a final yeas and nays;

4. Conference committee reports – transmittal of the bill approved on third

reading by one house to the other house for conference. The other house

shall follow the same procedure. If the other house approves the bill

without amendments, the bill is passed by congress and the same will be

transmitted to the President. If the other house introduces amendments,

with which the originating house does not agree, the differences will be
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 settled by the conference committee of both houses. The conference

committee report will have to be approved by both houses in order that it

will be considered passed by congress and thereafter sent to the

President.

5. Authentication of the bills – signing by the speaker and senate president

of the printed copy of the approved bill followed by the certification by the

respective secretaries of the both Houses, before it is sent to the

president.

6. President’s approval or veto – transmittal of the authenticated bill to the

president. If he approves same, he shall sign it; otherwise, he shall veto it

and return the same with his objections to the house where it originated,

which shall enter the objections at large in its journal and proceed to

consider it.

7. Reversal of veto – if after such reconsideration, two thirds of all the

members of House shall agree to pass the bill, it shall be sent, together

with the objections, to the other house by which it shall likewise be

reconsidered, and if approved by two thirds of all the members of that

house, it shall become a law.

The “no amendment rule” refers only to the procedure to be followed by

each house of Congress with regard to the bills initiated in each of said

respective houses, before said bill is transmitted to the other house for its

concurrence or amendment. Verily, to construe said provision in a way as to

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proscribe any further changes to a bill after one house has voted on it would

lead to absurdity as this would mean that the other house of Congress would be

deprived of its constitutional power to amend or introduce changes to the bill.

Thus, Article VI section 26 of the constitution cannot be taken to mean that the

introduction by the Bicameral Conference Committee of amendments and

modifications to disagreeing provisions in bills that have been acted upon by

both houses of congress is prohibited.

Legislative inquiries may refer to the implementation or re-examination of

any law or appropriation or in connection with any proposed legislation or for

the formulation of, or in connection with future legislation, or will aid in the

review or formulation of a new legislative policy or enactment.

The heads of departments may, upon their own initiative, with the consent

of the President or upon the request of the other House, as the rules of each

house shall provide, appear before and be heard by such house on any matter

pertaining to their departments.

President’s immunity from suit.

President may be liable for any offense when he/she acts in a case so plainly

outside of his authority that he cannot be said to have exercised discretion in

determining whether or not he had the right to act. Also, when the cases filed

against the president are criminal in character.

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Executive privilege is the right of the president and high-level executive branch

officers to withhold information from congress, the courts and ultimately the

public.

Requisites for the proper invocation of executive privilege.

a. The communication must relate to the quintessential and non-delegable

presidential power;

b. The communication must be authored or solicited and received by a close

advisor of the president or the president himself/herself. The judicial test

is that an advisor must be in operational proximity with the president;

c. There is no adequate showing of a compelling need that would justify the

limitation of the privilege and of the unavailability of the information

elsewhere by an appropriate investigating authority.

What is the power of control?

The power of control is defined as the power of an officer to alter or modify or

nullify or set aside what a subordinate has done in the performance of his/her

duties and to substitute the judgment of the former to that of the latter.

What is the power of supervision?

The power of supervision means overseeing, or the power or authority of an

officer to see that subordinate officers perform their duties. If the latter fail or

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neglect to fulfill them, the former may take such action or step as prescribed by

law.

Doctrine of qualified political agency or the alter ego principle.

Under the doctrine of qualified political agency or the alter ego principle, the

acts of the Secretaries of Executive departments when performed and

promulgated in the regular course of business are, unless disapproved or

reprobated by the Chief Executive, presumptively the acts of the Chief

Executive. Thus, the Executive Secretary, when acting by authority of the

President may reverse the decision of another department secretary.

Differentiate the judicial power to review sufficiency of the factual basis of the

proclamation of martial law against the congressional power to revoke it.

The court may strike down the presidential proclamation in an appropriate

proceeding filed by any citizen on the ground of lack of sufficient factual basis.

On the other hand, Congress may revoke the proclamation or suspension,

which revocation shall not be set aside by the president.

Distinguish Amnesty from pardon

As to nature

Amnesty – Addressed to political offenses

Pardon – Infraction of peace of the State

As to whom applied
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Amnesty – classes of persons

Pardon – Individuals

As to effect

Amnesty – Looks backward and puts into oblivion the offense itself

Pardon – Looks forward and relieve the pardonee of the consequences of the

offense.

As to acceptance of the grant

Amnesty – No need for indistinct act of acceptance

Pardon – Acceptance necessary

As to concurrence of Congress

Amnesty – Requires concurrence of Congress

Pardon – Does not require concurrence of Congress

As to type of act

Amnesty – A public act which the courts may take judicial notice of

Pardon – A private act which must be pleaded and proved

Distinguish treaties from executive agreement

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 Treaty is an international agreement which involves political issues or

changes of national policy and those involving international arrangements of a

permanent character. Formal documents require ratification.

International agreements involving adjustment of details carrying out well

established national policies and traditions and involving arrangements of a

more or less temporary nature take the form of executive agreement. And the

same becomes binding through executive action

The Universal Declaration of Human Rights, as well as the International

Covenant on Economic, Social and Cultural Rights and International Covenant

on Civil and Political Rights, suggests that the scope of human rights can be

understood to include those that relate to an individual’s social, economic,

cultural, political and civil relations. It thus seems to closely identify the term to

be universally accepted traits and attributes of an individual, along with what is

generally considered to be his inherent and inalienable rights, encompassing

almost all aspects of life.

Have these broad concepts been equally contemplated by the framers of

our 1987 Constitutional Commission is adopting the specific provisions on

human rights and in creating an independent commission to safeguard these

rights? It may of value to look back at the country’s experience under the

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martial law regime with which may have in fact, impelled the inclusions of these

provisions in our fundamental law.

Cardinal principles of due process in administrative proceedings.

a. Right to a hearing;

b. Tribunal must consider evidence presented;

c. The evidence must be substantial;

d. The decision must be supported by law and fact;

e. Decision must be based on evidence adduced during the hearing or at

least contained in the records or disclosed to parties;

f. The board or judge must act on its or his/her own independent

consideration of facts and law of the case, and not simply accept the view

of the subordinate in arriving at a decision;

g. The decision must be rendered in such a manner that parties may know

various issues involved and the reason for the decision rendered;

h. An impartial tribunal which dictates that the one called upon to resolve a

dispute may not sit as judge or jury simultaneously, neither he/she may

review his/her decision on appeal.

Substantive due process is the intrinsic validity of a statute that interferes with

the life, liberty and property of a person.

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Procedural due process means compliance with the procedure or steps, even

periods; provided by statute, in conformity with the standards of fair play and

without arbitrariness on the part of those who are called to administer it.

Differences between substantive and procedural due process.

As to nature

SDP – Requires that the law itself, not merely the procedure by which the law

would be enforced, is fair, reasonable and just.

PDP – method or manner by which the law is enforced

As to who must comply with the requirement

SDP – Directed to the lawmaker

PDP – addressed to those who adjudicate

As to the requirements to be complied

SDP – implies fundamental notion of fairness and justice

PDP – Right to be notified and heard

Test of judicial scrutiny in relation to substantive due process

a. Rational basis test – Examines laws or ordinances if they rationally further

a legitimate governmental issue;

b. Intermediate review – Governmental interest is extensively examined and

the availability of less restrictive measure is considered;

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 c. Strict Scrutiny test – The focus is on the presence of compelling, rather

than substantial, governmental interest and on the absence of less

restrictive means for achieving that interest.

Equal protection clause requires that all persons shall be treated alike, under

like circumstances and conditions both as to privileged conferred and liabilities

imposed.

Requisites of equal protection

a. There must be substantial distinction;

b. Applies equally to all members of the same class;

c. It is germane to the purpose of the law;

d. It is not limited to existing conditions only.

1. Rational Basis Scrutiny – The traditional test, which requires “only that

government must not impose differences in treatment except upon some

reasonable differences fairly related to the object of regulation. Simply

put, it merely demands that the classification in the statute must

reasonably relates to the legislative purpose;

2. Intermediate Scrutiny – requires that the classification (means) must

serve an important governmental objective (object) and is substantially

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 related to the achievement of such purpose. A classification based on sex

is the best-established example of an intermediate level of review.

3. Strict Scrutiny – Requires that the classification serve a compelling state

interest and is necessary to achieve such interest. This level is used when

suspect classifications or fundamental rights are involved.

Philippine jurisprudence has developed three (3) tests of judicial scrutiny to

determine the reasonableness of classifications. The strict scrutiny test applies

when a classification either (i) interferes with the exercise of fundamental rights,

including the basic liberties guaranteed under the Constitution, or (ii) burdens

suspect classes. The intermediate scrutiny test applies when a classification

does not involve suspect classes or fundamental rights, but requires heightened

scrutiny, such as in classifications based on gender and legitimacy. Lastly,

the rational basis test applies to all other subjects not covered by the first two

tests.

The test of a valid ordinance is well established. A long line of decisions

including City of Manila has held that for an ordinance to be valid, it must not

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only be within the corporate powers of the local government unit to enact and

pass according to the procedure prescribed by law, it must also conform to the

following substantive requirements: (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 be general

and consistent with public policy; and (6) must not be unreasonable.

The right to privacy is the right to be free from an unwarranted exploitation of

one’s person or from intrusion into one’s private activities in such a way as to

cause humiliation to a person’s ordinary sensibilities. It is the right of an

individual to be free from unwarranted publicity, or to live without unwarranted

interference by the public in matters in which the public is not necessarily

concerned. The right to privacy is the “right to be left alone”.

The right to privacy is the right to be free from an unwarranted exploitation of

one’s person or from intrusion into one’s private activities in such a way as to

cause humiliation to a person’s ordinary sensibilities. The same is the right of

one person from unwarranted publicity, or to live without unwarranted

interference by the public in matters in which the public is not necessarily

concerned. The right to privacy is the right to be left alone.

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The right to privacy is the right to be free from an unwarranted exploitation of

one’s person or from intrusion into one’s private activities in such a way as to

cause humiliation to a person’s ordinary sensibilities. The same is the right of

one person from unwarranted publicity, or to live without unwarranted

interference by the public in matters in which public is not necessarily

concerned.

When may a person invoke the right to privacy?

1. A person has exhibited an expectation of privacy; and

2. The expectation is one that society is prepared to recognize as

reasonable.

Requisites for the issuance of a valid search warrant and warrant of arrest.

1. A determination of probable cause;

2. The determination of probable cause was made personally by a judge;

3. The determination by the judge was based on examination under oath or

affirmation of the complainant and the witnesses he/she may produce;

4. The complainant and/or witness testified to facts within their personal

knowledge;

5. The warrant issued must particularly describe the place to be search or

the person or things to be seized.

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When is a warrantless search valid?

a. Consented warrantless search;

b. Incidental to a lawful arrest;

c. Moving vehicles;

d. Customs search;

e. Body checks on airports;

f. Inspection of buildings and other premises for the enforcement of fire,

sanitary and building regulations;

g. Stop and frisk;

h. Visual search at checkpoints;

i. Conduct of aerial target zoning and saturation drive in the exercise of

military power of the president;

j. Plainview;

k. Doctrine of exigent circumstances.

Elements of a valid warrantless search of articles in plain view.

a. The executing law enforcer has a prior justification for an initial intrusion

or otherwise property is in a position which he can view a particular order;

b. The enforcer must discover the incriminating evidence inadvertently

without conducting a search;

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 c. It must be immediately apparent to the police that the item they observe

may be evidence of a crime, contraband, or otherwise subject to seizure.

Doctrine of the fruit of a poisonous tree.

According to this rule, once the primary source (the tree) is shown to have been

obtained unlawfully, any secondary or derivative evidence (the fruit) derived

from it is also inadmissible. Stated otherwise, illegally seized evidence is

obtained at a direct result of the illegal act, whereas the fruit of the poisonous

tree is the indirect result of the same illegal act. The fruit of the poisonous tree

is at least removed from the illegally seized evidence, but it is equally

inadmissible. The rule is based on the principle that the evidence illegally

obtained by the State should not be used to gain other evidence because the

originally illegally obtained evidence taints all evidence subsequently obtained.

What are the general tests employed to determine the validity of regulation of

speech?

a. Dangerous tendency doctrine;

b. Balancing of interests tests; and

c. Clear and present danger rule.

How do we determine the which test to apply to determine the validity of

regulation of speech?

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In order to determine which kind of test apply, the nature of the restraint must

be determined.

Under the Intermediate approach, the regulations of this type are not designed

to suppress any particular message, they are not subject to the strictest form of

judicial scrutiny but an intermediate approach – somewhere between the mere

rationality that is required of any other law and the compelling interest standard

applied to content-based restrictions.

Under the intermediate approach or the O’Brien test, government regulation is

justified if:

a. It is within the Constitutional power of the Government;

b. It furthers an important or substantial governmental interest;

c. If the governmental interest is unrelated to the suppression of free

expression; and

d. If the incident of restriction on alleged freedom of speech and expression

is no greater than is essential to the furtherance of that interest.

Clear and present danger rule. A governmental action that restricts freedom of

expression and of the press based on content is given strictest scrutiny in light

of its inherent and invasive impact. Only when the challenged act has overcome

the clear and present danger rule will it pass constitutional muster, with the

government having the burden of overcoming the presumed unconstitutionality.

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Void for vagueness provides that an act or statute may be said to be vague

when it lacks comprehensive standards that men of common intelligence must

necessarily guess at its meaning and differ in its application. In such instance,

the statute is repugnant to the constitution in two respects:

1. it violates due process for failure to accord person’s fair notice of what to

avoid; and

2. it leaves law enforcers unbridled discretion in carrying out its provisions.

Overbreadth doctrine is generally applied to statute infringing on the freedom of

speech. Overbreadth doctrine applies when a statute needlessly restrains even

constitutionally guaranteed rights.

The requirements of the Constitution regarding equality in opportunity must

provide limits to some expression during electoral campaigns. Thus clearly,

regulation of speech in the context of electoral campaigns made by candidates

or the members of their political parties or their political parties, may be

regulated as to time, place and manner of the speech or expression.

The requirements of the constitution regarding equality of opportunity must

provide limits to some expression during electoral campaign. Thus clearly, the

regulation of speech in the context of electoral campaign made by candidates

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or the members of their political parties or their political parties, may be

regulated as to time, place and manner.

Clear and Present Danger Rule. Whether the words are used in such

circumstances and of such nature as to create a clear and present danger that

they will bring about the substantive evil that the State has the right to prevent.

The substantive evil must be extremely serious and the degree of imminence is

extremely high before utterance can be punished.

Dangerous Tendency Rule. If the words uttered create a dangerous tendency

of an evil which the State has the right to prevent, then such words are

punishable. It is sufficient if the natural tendency and the probable 0 of the

utterance were to bring about the substantive evil that the legislative body

seeks to prevent.

Balancing of Interests Test. When particular conduct is regulated in the interest

of public order, and the regulation results in an indirect, conditional or partial

abridgement of speech, the duty of the courts is to determine which of the two

conflicting interests demands greater protection under the particular

circumstances presented.

Exception to the rule that malice is presumed in libel.

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 1. A private communication made by any person to another in the

performance of any legal, moral or social duty;

2. A true and fair report, made in good faith, without any comments or

remarks, of any judicial, legislative, or other proceedings which are not of

confidential nature, or of any statement, or of any other act performed by

public officers in the exercise of their functions;

3. Doctrine of fair commentaries.

Under the doctrine of fair commentaries, while in general every

discreditable imputation publicly made is deemed false, because every man is

presumed innocent until his guilt is judicially proved, and every false imputation

is deemed malicious, nevertheless, when the discreditable imputation is

directed against public person in his public capacity, it is not necessarily

actionable. Fair commentaries on matter of public interest are privileged and

constitute a valid defense in an action for libel or slander.

Custodial investigation is a questioning initiated by a law enforcement

officer after a person has been taken into custody or otherwise deprived of his

freedom of action in any significant way. It shall include the practice of issuing

an invitation to a person who is investigated 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.

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 Spontaneous statements are those that are not elicited through

questioning by the authorities, but given in an ordinary manner whereby a

person orally admitted having committed a crime. Constitutional procedures on

custodial investigation do not apply to spontaneous statements.

A policy determining position is one where the officer lays down principal

and fundamental guidelines or rules, or formulates a method of action for the

government or any of its subdivisions.

A primarily confidential position denotes not only confidence in the

aptitude of the appointee for the duties of the office but primarily close intimacy

which insures freedom of discussion, delegation, and reporting without

embarrassment or freedom from misgivings of betrayals of personal trust and

confidential matters of state.

A highly technical position is that which requires possession of technical

skill or training in a supreme or superior degree.

Command responsibility refers to the responsibility of commanders for

crimes committed by subordinate members of the armed forces or other

person’s subject to their control in international wars or domestic conflict.

Although originally used for ascertaining criminal complicity, the command

responsibility doctrine has also found application in civil cases for human rights

abuses.
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Functions of the Ombudsman

1. Investigate on its own or upon complaint of any person, of any act or

omission by any public official, employee, office or agency, when such act

or omission appears to be illegal, unjust, improper and inefficient;

2. Request any government agency for assistance and information

necessary in the discharge of its responsibilities, and to examine, if

necessary, pertinent records and documents;

3. Publicize matters which are covered by its investigation when

circumstances so warrant and with due prudence;

4. Determine the causes of inefficiency, red tape, mismanagement, fraud or

corruption in the government and make recommendations for their

elimination and the observance of high standards of ethics and efficiency;

5. Investigate and initiate the proper action for the recovery of all ill-gotten

and/or unexplained wealth amassed, of high standards of ethics and

efficiency.

Powers of the ombudsman

1. Direct upon complaint or at its own instance, any public official or

employee of the Government or any of its subdivision, or any agency or

instrumentality thereof, as well as government-owned or controlled

corporation with original charter, to perform and expedite any act or duty

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 required by law, or to stop, prevent, correct any abuse or impropriety in

the performance of duties;

2. Direct the officer concerned to take appropriate action against a public

official or employee at fault, and recommend his/her removal, suspension,

demotion, fine, censure, or prosecution and ensure compliance therewith;

3. Promulgate its rules of procedure and exercise such other powers or

perform such functions or duties as may be provided by law.

The Sandigabayan as a judicial body, is granted the power to hear and decide

cases. The Sandiganbayan shall exercise original jurisdiction in all cases

involving:

1. Violation of RA 3019, otherwise known as the Anti-Graft and Corrupt

Practices Act, where one or more of the accused are officials occupying

the following positions in the government, whether in a permanent, acting,

interim at the time of the commission of the offense:

a. Officers of the executive branch occupying the positions of Regional

Director and higher, otherwise classified as SG 27 and higher of the

Compensation and Position Qualification Act of 1989, specially

including:

i. Provincial governors, vice governors, members of the

Sanguniang Panlalawigan, and provincial treasurers,

assessors, engineers and other provincial department heads;

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 ii. City mayors, vice mayors, members of the Sangguniang

Panglungsod, city treasurer, assessors, engineers and other

city department heads;

iii. Officials of the diplomatic service occupying the position of

consul and higher;

iv. Philippine army or air force, colonels and naval captains or

higher;

v. PNP provincial director and senior superintendent or higher;

vi. City and provincial prosecutors and their assistants;

Term and tenure

Term – the time during which the officer may claim to hold the office.

Tenure – the term during which the officer actually holds the office.

Voluntary renunciation of the office for any length of time shall not be

considered as an interruption in the continuity of his/her service for the full term

for which he/she was elected.

Administrative law is that branch of public law under which the executive

department of the government, acting in quasi-judicial or quasi-legislative

capacity, interferes with the conduct of the individual for the purpose of

promoting the well-being of the community.

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 Administrative law is that branch of public under which the executive

department of the government, acting in quasi-legislative and quasi-judicial

capacity, interferes with the conduct of individuals for the purpose of promoting

the welfare of the community.

Administrative law is that branch of public law under which the executive

department of the government, acting in quasi-legislative or quasi-judicial

capacity, interferes with the conduct of the individual for the purpose of

promoting the welfare of the community.

Political subdivisions are the Provinces, cities, municipalities and

barangays.

There shall be autonomous region in Muslim Mindanao.

Instrumentalities are national agencies not integrated within the

department framework, vested with special functions or jurisdiction by law,

endowed with some if not all corporate powers, administering special funds,

and enjoying operational autonomy usually through a charter. The term

includes regulatory agencies, chartered institutions, and government-owned or

controlled corporation.

Autonomous region is a corporate entity with jurisdiction over all matters

devolved to it by the Constitution and the Organic Act. From the perspective of

the Constitution, autonomous regions are considered one of the forms of local

governments, as evident by Article X of the Constitution. The framers of the

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Constitution never equated autonomy with independence. The autonomous

region, as a regional entity, continuous to operate within the larger framework of

the State and is still subject to the national policies set by the national

government.

Legislative powers granted to the Autonomous Region, which it will exercise

within its territorial jurisdiction, subject to the provisions of the Constitution and

national laws.

a. Administrative organization;

b. Creation of sources of revenue;

c. Ancestral domain and natural resources;

d. Personal, family, and property relations;

e. Regional urban and rural planning development;

f. Economic, social, and tourism development;

g. Educational policies;

h. Preservation and development of cultural heritage; and

i. Such other matters as may be authorized by law for the promotion of the

general welfare of the people of the region.

Criterion in determining whether a corporation is public.

The true criterion to determine whether a corporation is public or private is

found in the totality of the relation of the corporation to the State. If the

corporation is created by the State as the latter’s own agency or instrumentality

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to help in carrying out governmental functions, then that corporation is

considered public, otherwise, it is private.

Instrumentalities are national agencies not integrated with the department

framework, vested with special functions or jurisdiction by law, endowed with

some if not all corporate powers, administering special funds, and enjoying

operational autonomy usually through a charter. The term includes regulatory

agencies, chartered institutions, and government-owned or controlled

corporations.

Administration as a function – it is the execution, in non-judicial matters,

of the law or will of the State as expressed by competent authorities.

Administration as an institution – it refers to the aggregate of those

persons whose hands the reins of government are for the time being.

Administrative power is concerned with the work of applying policies and

enforcing orders as determined by proper governmental organs. It enables the

President to fix a uniform standard of administrative efficiency and check the

official conduct of his/her agents.

An administrative order is an ordinance issued by the President which

relates to specific aspects in the administrative operation of government. It must

be in harmony with the law and should be for the sole purpose of implementing

the law and carrying out legislative policy.

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 Res judicata refers to the rule that a final judgment or decree on the

merits by a court of competent jurisdiction is conclusive of the rights of the

parties or their privies in all later suits on all points and matters determined in

the former suit.

The elements of res judicata are as follows:

1. the former judgment or order must be final;

2. the judgment or order must be on the merits;

3. it must have been rendered by a court having jurisdiction over the subject

matter and the parties;

4. there must be, between the first and the second action, identity of parties,

of subject matter and cause of action.

An administrative agency may be authorized to make investigations, not

only in proceedings of a legislative or judicial nature, but also in proceedings

whose sole purpose is to obtain information upon which future action of a

legislative or judicial nature may be taken and may require the attendance of

witnesses in proceedings of a purely investigatory nature. It may conduct

general inquiries into evils calling for correction, to report findings to appropriate

bodies, and make recommendations for actions.

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Right to counsel in administrative proceedings

In an administrative proceeding a respondent has the option of engaging

the service of counsel. As such, the right to a counsel is not imperative because

administrative investigations are themselves inquiries conducted only to

determine whether there are facts that merit disciplinary measures against

erring public officers and employees, with the purpose of maintaining the dignity

of government service.

Test to determine whether an administrative body is exercising judicial functions

or merely investigatory functions.

Adjudication signifies the power and authority to adjudicate upon the

rights and obligations of the parties before it. Hence, if the only purpose for

investigation is to evaluate evidence submitted before it based on the facts and

circumstances presented to it, and if the agency is not authorized to make final

pronouncement affecting the parties, then there is an absence of judicial

discretion and judgment.

Requisites of judicial review in administrative decisions

1. Prior resort to administrative bodies;

2. Exhaustion of administrative remedies.

Doctrine of primary administrative jurisdiction.

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 The doctrine of primary administrative jurisdiction refers to the

competence of the court to take cognizance of a case at first instance. Under

this doctrine, if an administrative tribunal has jurisdiction over the controversy,

courts should not resolve the issue even if it may be within its proper

jurisdiction. This is especially true when the question involves its sound

discretion requiring special knowledge, experience, and services to determine

technical and intricate matters of fact.

Doctrine of exhaustion of administrative remedies

Under the doctrine of exhaustion of administrative remedies, recourse

through court action cannot prosper until after all such administrative remedies

have first been exhausted. If remedy is available with the administrative

machinery, this should be resorted to before resort can be made to courts.

Under the doctrine of exhaustion of administrative remedies, recourse

through court action cannot prosper until after all such administrative remedies

have first been exhausted. If remedy is available with the administrative

machinery, this should be resorted to before resort can be made to courts.

Exceptions to the doctrine of primary jurisdiction and exhaustion of

administrative remedies.

a. When the issue of non-exhaustion of admin remedies has been rendered

moot;

b. When there is estoppel on the or the party invoking the doctrine;

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 c. Where the amount involved is relatively so small as to make the rule

impractical and oppressive;

d. When there is no plain, speedy and adequate remedy;

e. When the question involved is purely legal and will ultimately have to be

decided by the courts;

f. When the challenged administrative act is patently illegal, amounting to

lack of jurisdiction;

g. In quo warranto proceedings;

h. Where there is unreasonable delay or official inaction that will prejudice

the complainant;

i. When the application of the doctrine would cause great and irreparable

damage;

j. Where the controverted acts violates due process;

k. Where strong public interest involved;

When is the doctrine of administrative remedies applicable?

The doctrine applies only to those decisions of administrative agencies in

the exercise of their quasi-judicial powers. If in the exercise of its quasi-

legislative function, the regular court has jurisdiction.

Failure to observe the doctrine of exhaustion of administrative remedies

does not affect the jurisdiction of the court. The only effect of non-compliance

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with the rule is that it will deprive the complainant of a cause of action, which is

a ground for motion to dismiss.

Doctrine of finality of administrative action.

The doctrine provides that when an administrative action has become

final and executory, it is removed from the power and jurisdiction of the court to

further alter or amend it, much less revoke it. The doctrine of finality of

judgment is grounded on fundamental considerations of public policy and sound

practice that at the risk of occasional error, the judgments of the courts must

become final at some definite date fixed by law. To allow courts to amend final

judgment will result in endless litigation.

The doctrine of finality of judgment is grounded on fundamental

consideration of public policy and sound practice that at the risk of occasional

error, the judgment of the courts must become final at some definite date fixed

by law. To allow courts to amend final judgment will result in endless litigation.

What is a political party?

It refers to organized group of citizens advocating an ideology or platform,

principles and policies, for the general conduct of government and which, as the

most immediate means of securing their adoption, regularly nominates and

supports certain of its leaders and members as candidates for public office.

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 Party list is a mechanism of proportional representation in the election of

representatives to the House of Representatives from regional and sectoral

parties or organizations or coalition thereof registered with the COMELEC.

The law does not say that a candidate who commits premature

campaigning can be disqualified or prosecuted only after the start of the

campaign period. What the law says is “any unlawful act or omission applicable

to a candidate shall take effect only upon the start of the campaign period.” The

plain meaning of the provision is that the effective date when partisan political

acts become unlawful as to a candidate is when the campaign period starts.

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,

or by any accredited and participating party list group, before the board or

directly with the COMELEC.

When does the jurisdiction of Electoral tribunals begin?

Once a winning candidate has been proclaimed, taken his oath, and assumed

office as a member of the House of Representatives, the COMELEC’s

jurisdiction over election contests relating to his/her election, returns, and

qualifications ends, and the HRET’s own jurisdiction begins. Stated in another

manner, where the candidates have already been proclaimed winner in the
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congressional elections, the remedy of the petitioner is to file and electoral

protest with HRET.

Requisites of a valid ordinance

a. It must not contravene the constitution or any statute;

b. It must not be unfair or oppressive;

c. It must not be partial or discriminatory;

d. It must not prohibit, but may regulate, trade;

e. It must be consistent with public policy;

f. It must not be unreasonable;

g. It must be general in application;

Ultra vires act is one committed outside the object for which a corporation is

created as defined by the law of its organization and therefore beyond the

power conferred upon it by law.

Corporate powers of LGU

1. To have continuous succession of its corporate name;

2. To sue and be sued;

3. To acquire and convey real and personal property;

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 4. To have and use its own seal;

5. To enter into contracts;

6. To exercise other powers granted to a corporation, subject to such

limitations as provided by the LGC and other laws.

Requisites for the contract entered into by the LGU to be valid.

a. The LGU has express, implied, or inherent power to enter into a particular

contract;

b. It was entered into by the proper department, board, committee, or agent.

In case it was entered into by the local chief executive, prior authorization

by the Sanggunian concerned is needed;

c. It must comply with the substantive requirements of the law;

d. It must comply with formal requirements of written contracts.

When may an LGU be held liable under a contract?

Upon an authorized contract – that is upon a contract within the scope of the

charters and legislative powers of the corporation and duly made by the proper

officers or agents – they are liable to the same manner and to the same extent

as private corporations or natural persons.

Doctrine of Implied Municipal Liability.

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 A municipality becomes obligated upon an implied contract to pay at a

reasonable value for the benefits received and appropriated by it as to which it

has a general power to contract. The doctrine applies in all cases where money

or other property received by it in such circumstances that the general law,

independent of express contract, implies an obligation to do justice with respect

to the same.

Public utility is a business or service engaged in regularly supplying the

public with some commodity of service of public convenience. To constitute

public utility, the facility must be necessary for the maintenance of life and

occupation of the residence.

Public international law is a body of rules and principles of action which

are binding upon civilized states in their relation to one another.

The consent of international law may be expressed, as in the form of

treaty or conventions, implied, as in the case of international customs; and

presumed in the case of general principles of law.

International comity refers to politeness, convenience and goodwill

observed by states in their mutual intercourse without being legally bound by

them. Neighborliness, mutual respect and friendly waiver of technicalities are

involved, and the practice is exemplified by the exception of diplomatic envoys

from customs duties.

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 The doctrine of transformation requires that an international law be

transformed into a domestic law through a constitutional mechanism such as

local legislation before it shall be binding upon the State

Under the doctrine of incorporation, the generally accepted principles of

international law are automatically incorporated in the municipal law of each

state upon its admission to the family of nations.

The general principles of law recognized by or common to the world’s

major legal systems. This has reference not to principles of international law but

to principles of municipal law common to no particular systems of the world.

The general principles of law are rules which, because of their intrinsic

merit, have been accepted and are being observed by the majority of civilized

states.

What are sources of international law

a. Primary source of international law.

a. International treaties and conventions;

b. International customs;

c. General principles of law.

b. Secondary source of international law

a. Judicial decisions; and

b. Teachings of publicists.

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General principles of law are rules which, because of their intrinsic merit, have

been accepted and observed by majority of nations.

Customary international law consists of rules derived from the general and

consistent practice of states followed by them from a sense of legal obligation.

Highly qualified publicists are writers whose main value depends on the extent

to which their books and articles are cited as works of scholarship, that is to

say, based on thorough research into what the law is said to be, rather than

comparing the views of other writers as to what they think the law ought to be.

What are the effects of actions of organs of international organizations created

as treaty?

Administrative rules which guide the practice of states in relation to

international organizations may form part of soft law. Soft law plays an

important role in international relations because often states prefer non treaty

obligations as simple and more flexible foundation to the future relations.

Administrative rules which guide the practice of states in relation to

international organizations may form part of soft law. Soft law plays an

important role in international relations because often states prefer non treaty

obligations as simple and more flexible foundation to the future relations.

Soft law is an expression of non-binding norms, principles, and practices that

influence state behavior.

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Hard law involves binding rules of international law.

Subject of international law is an entity that has rights and responsibilities under

that law. It has an international personality in that it can directly assert rights

and be held directly responsible under the law of nations. In other words, it has

a faculty of motivation. By this is meant that it can be a proper party in

transactions involving the application of the law of nations among members of

the international community.

Object of international law is the person or thing in respect of which rights are

held and obligations assumed by the subject. It is, therefore, not directly

governed by the rules of international law. Its rights are asserted and its

responsibilities imposed indirectly, through the instrumentality of an

intermediate agency, which is the subject.

Subjects of international law are entities endowed with rights and obligations in

the international order and possessing the capacity to take certain kinds of

action on the international plane.

Object of international law are those who indirectly have rights under or are

beneficiaries of international law through subjects of international law.

A state is a community of persons, more or less numerous, permanently

occupying a permanent territory, independent of outside control, and

possessing a government to which a great body of inhabitants render habitual

obedience.
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Elements of statehood

a. Permanent population;

b. Defined territory;

c. Government; and

d. Capacity to enter into relations with other States.

Jus cogens is a peremptory norm of general international law is a norm

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.

Ergo omnes obligation is an obligation of every State towards the international

community as a whole. All states have a legal interest in its compliance, and

thus all States are entitled to invoke responsibility for breach of such an

obligation.

When does a new state become subject to international law?

A new state becomes subject to international law from the moment of its

establishment with respect to peremptory norm (jus cogens) and erga omnes

obligation under customary international law. Neither the express consent of the

new state nor the recognition by other state is necessary for the new state to be

bound by the norms and obligations.

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Recognition is the act of acknowledging the capacity of an entity to exercise the

rights belonging to statehood.

The declaratory theory provides that recognition is merely declaratory of the

existence of the state and that its being a state depends upon the possession of

the required elements and not upon the recognition.

The constitutive theory is that recognition constitutes a state, that is, it is what

makes a state and confers legal personality of the entity.

International organizations are entities created by group of states and

functioning under international law to achieve purposes defined in their

constitutions. The same is as well an organization that is set up by treaty

among two or more states.

International administrative bodies are certain administrative bodies created by

agreement among states which may be vested with international personality

when two conditions concur:

a. Their purposes are merely non-political; and

b. Thy are autonomous and not subject to control of any state.

Who to appoint is "a political question involving considerations of wisdom which

only the appointing authority can decide." 84 For the betterment of government

service, the appointing authority may consider other "abstract criteria[,]" 85 aside

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from the minimum qualifications set by law in making appointments. As this

court explained in Cortez v. Civil Service Commission: 86

[M]any factors are taken into account in evaluating the qualifications of

prospective appointees and that formal examinations, work experience and

educational attainment are only some of them. Such abstract criteria as loyalty,

cordiality, initiative, resourcefulness, discipline, and other personality traits are

also properly considered. When making this evaluation, the appointing authority

should be given the widest possible leeway and cannot be controlled by the

Commission. . . .

....

As long as the appointee possesses the minimum qualifications prescribed by

law or regulations, there is no question that his appointment must be respected

by the Civil Service Commission even if it be proved that there are others with

superior credentials.87

Individuals

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Traditional doctrine – only states, not individuals, are subject of international

law. The norms of international law impose obligations and responsibilities

exclusively upon states and international organization.

Opposing view – the true subjects of international law are individual persons

who constitutes states. Individuals are subject of international law indirectly and

collectively through the juridical personality of the state.

Jurisdiction is the authority by the state over persons and things within or

outside its territory, subject to certain exceptions.

Territoriality principle, a state has absolute, but not necessarily exclusive,

power to prescribe, adjudicate and enforce rules for conduct that occurs within

its territory. It postulates that a state exercises exclusive jurisdiction with

respect to all persons, things, transactions or happening within its territorial

limits.

The effect doctrine provides that a state has jurisdiction over acts occurring

outside its territory but having effects within it.

Subjective territoriality postulates that if an activity takes place within the

territory of the forum state, then the Forum state has the jurisdiction to prescribe

the rule for that activity.

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Objective territoriality – this jurisdiction is invoked where the action takes

place outside the territory of the Forum, but the primary effect of that activity is

within the Forum state.

Under the nationality principle, every state has a jurisdiction over its

nationals, even when those national are outside the state.

Under the doctrine of effective nationality, a person having more than one

nationality shall be treated as if he had only one – either the nationality of the

state in which he is habitually or principally a resident, or the nationality of the

state with which he appears in fact to be the most closely connected.

Under the protective principle, a state may exercise its jurisdiction over

conduct outside its territory that threatens its security, as long as the conduct is

generally recognized as criminal by states in the international community.

Limitations of protective principle, since the principle gives states a wide

latitude of defining the parameters of their jurisdiction, the international strictly

construed that the reach of this doctrine to those offenses posing a direct and

specific threat to national security.

Universality principle recognizes that certain activities, universally dangerous

to states and their subjects, require authority in all community members to

punish such acts wherever they may occur, even absent a link between the

state and the parties or the acts in question.

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Passive personality principle authorizes states to assert jurisdiction over

offenses committed against their citizens abroad. It recognizes that each state

has legitimate interest in protecting the safety of its citizens when they journey

outside national boundaries.

Act of state doctrine provides that every sovereign state is bound to respect

the independence of every other sovereign state, and the courts of one country

will not sit in judgment on the acts of the government of another, done within its

own territory. Redress of grievances by reason of such acts must be obtained

through the means open to be availed of by the sovereign powers as between

themselves.

Doctrine of State immunity. As a consequence of independence, territorial

supremacy and equality, a state enjoys immunity from the exercise of

jurisdiction by another state, unless it has given consent, waived its immunity,

or voluntary submitted to the jurisdiction of the court concerned.

Diplomatic immunity is part of customary international law which grants

immunity to diplomatic representatives, in order to uphold their dignity as

representative of their respective States and to allow them free and

unhampered exercise of their functions.

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Foreign merchant vessel exercising the right to innocent passage or

arrival under stress – Innocent passage is navigation through the territorial

seas of a state for the purpose of traversing the sea without entering national

waters, or of proceeding to internal waters, or making for the high seas from

internal waters, as long as it is not prejudicial to the peace, good order or

security of coastal state.

Modes of resolving conflict of jurisdiction

a. Balancing test – the state shall assume jurisdiction when the act’s

intended effect is sufficiently large and strong;

b. International comity – even when a state has basis for exercising

jurisdiction, it will refrain from doing so if its exercise will be unreasonable;

and

c. Forum non convenience – Its application is discretionary, the court

weighing private interest factors and public interest factors.

The exercise of the right of legation is one of the most effective ways of

facilitating and promoting intercourse among states. Through the active right of

sending diplomatic representatives and the passive right of receiving them,

states are able to deal more directly and closely with each other in the

improvement of their mutual interests.

Diplomatic immunity is a part of customary international law which grants

immunity to diplomatic representatives, in order to uphold their dignity as

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representatives of their respective states and to allow them free and

unhampered exercise of their duties.

Diplomatic agents are persons empowered to represent a state in a

foreign state or in an international organization. Every sovereign state has a

right to send and receive diplomats. In the case of a federal state that right is

reserved for the central government.

Exequatur is an authorization given by the receiving state admitting the

head of a consular post to the exercise of his functions. There is no prescribed

form of an exequatur.

NATIONALITY AND STATELESSNESS

Nationality is the bond which unite a person to a given state, which

constitutes his membership in a particular state, which gives him claim to the

protection of that state, and which subjects him to the obligations created by the

laws of that state.

De jure stateless persons are those who have lost their nationality, if they

had one, and have not acquired a new one

De facto are those who have a nationality but to whom protection is

denied by their state when out of the state. This is the situation of many

refugees.

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 A stateless person shall be accorded the same treatment granted to a

national of the country of his habitual residence with respect to the artistic rights

and industrial property, free access to courts, rationing, elementary education

and public relief assistance. He shall also be accorded the same treatment

which shall be as favorable as possible and, in any event, not less favorable

than that accorded to aliens.

Treaty is an international agreement concluded between states in written

form and governed by international law, whether embodied in a single

instrument or in two or more related instruments and whatever its particular

designation.

An executive agreement is similar to a treaty, except that the former does

not require legislative concurrence, is usually less formal, and deals with a

narrower range of subject matters.

Distinguish from executive agreement

From the perspective of international law, there is no distinction in their binding

effect upon states as long as the negotiating functionaries have remained within

their powers. The Vienna Convention of the Law of Treaties does not make a

distinction. An international agreement that meets the requirement of the

definition of a treaty is recognized as a treaty whatever its particular form.

From the perspective of Philippine Law, a treaty is concluded by the President

with the advice and consent of the Senate. No treaty or international agreement
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shall be valid and effective unless concurred in by at least 2/3 of all members of

the Senate. On the other hand, and executive agreement is conducted by the

President based on authority granted by Congress or based on the inherent

authority granted by the Constitution.

International agreements involving political issues or changes of national

policy and those involving international agreements of a permanent character

usually take the form of treaty, while those embodying adjustments of detail

carrying out well- established national policies and traditions and those

involving arrangement of a more or less temporary nature take the form of

executive agreements.

Steps in the treaty making power.

a. Negotiation – Discussion of the provisions of the proposed treaty,

undertaken by the representative of the contracting parties who are

provided with credentials known as full powers;

b. Signature – means of authenticating the instrument and symbolizing the

good faith of the contracting parties;

c. Ratification – act by which the state formally accepts the provision of a

treaty concluded by its representative;

d. Exchange of instruments of ratification;

e. Registration with the UN.

What is the effect if the treaty is signed but not yet ratified?

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It creates an obligation upon the state to refrain from acts which would defeat

the purpose and object of a treaty prior to its entry into force.

It creates an obligation upon the state to refrain from acts which would defeat

the purpose and object of a treaty prior to its entry into force.

When does a treaty enter into force?

A treaty enters into force in such manner and upon such date as it may provide

or as the negotiating states may agree. Failing any such provision or

agreement, a treaty enters into force as soon as consent to be bound by the

treaty has been established for all the negotiating states.

Pacta sunt servanda provides that every state has the duty to carry out in good

faith its obligations arising out of treaties and other sources of international law.

It may not invoke provisions of its Constitution or its laws as an excuse for

failure to perform this duty.

A reservation is a unilateral statement, however phrased or named by the state

when signing, ratifying, accepting, or acceding to a treaty, whereby it purports

to exclude or to modify the legal effect of certain provisions of the treaty in their

application to that state.

A reservation is a unilateral statement, however phased or named by the state

when signing, ratifying, accepting or acceding to a treaty, whereby it purports to

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exclude or to modify the legal effect of certain provisions of the treaty in their

application to that state.

Grounds for the invalidation of a state’s consent to be bound by a treaty

a. Error;

b. Fraud;

c. Corruption by a representative of a state;

d. Coercion by a representative of a state;

e. Coercion of a state by a threat of force;

f. Conflict of peremptory norms; and

g. Conflicts with the provisions of international law, when allowed

When may a treaty be suspended or terminated?

a. Agreement by the parties;

b. Goal of the treaty is already realized;

c. Rebus sic stantibus;

d. Supervening impossibility of performance;

e. Material breach;

f. Later inconsistent treaties between parties;

g. War between parties;

h. Expiration of terms;

i. Extinction of one of the parties to the treaty in a bipartite treaty, when the

rights and obligations would not devolve upon succeeding state;

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 j. Denunciation or desistance by one of the parties;

k. Loss of the subject matter;

l. Severance of diplomatic relations, when indispensable in the treaty;

m. Emergence of jus cogens which renders void any existing conflicting

treaty

Rebus sic stantibus. The doctrine constitutes an attempt to formulate a legal

principle which would justify non-performance of a treaty obligation if the

conditions with relation to which the parties contracted have changed so

materially and so unexpectedly as to create a situation in which the exaction of

performance would be unreasonable.

Rebus sic stantibus constitutes an attempt to formulate a legal principle which

would justify non-performance of a treaty obligation if the condition with relation

to which the parties contracted have changed so materially and so

unexpectedly as to create a situation in which the exaction of the performance

would be unreasonable.

Rebus sic stantibus constitutes an attempt to formulate a legal principle which

would justify non-performance of a treaty obligation if the condition with relation

to which the parties contracted have changed so materially and so

unexpectedly as to create a situation in which the exaction of the obligation

would be unreasonable.

Requisites for valid invocation of doctrine of rebus sic stantibus.

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 a. There must be fundamental change in the circumstances;

b. Such change must have occurred with regard to circumstances existing at

the time of the conclusion of a treaty;

c. Such change must not have foreseen by the parties;

d. The existence of those circumstances constituted the essential basis of

the consent of the parties;

e. The effect of the change is radically to transform the extent of obligations

still to be performed;

Doctrine of state responsibility

There is an international wrongful act of a State when conduct consisting of an

act of omission is;

a. Attributable to the state under international law; and

b. Constitutes a breach of an international obligation of the state.

Attribution or imputability is a legal construct whereby an internationally

unlawful conduct of a state organ acting in that capacity is regarded as a

conduct of the state itself, making that state responsible for it as an

internationally wrongful act.

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Calvo doctrine provides that a state is not responsible for losses suffered by

aliens in time of civil war.

Calvo clause is used chiefly in contracts between a government and aliens. It

prevents appeals by aliens to their home governments for diplomatic

intervention in behalf of their contract rights. The general tenor of the Calvo

Clause is that the alien agrees that any dispute that might arise out of the

contract is to be decided by the national court in accordance with national law

and is not to give rise to any international reclamation.

Principle of non-refoulement.

It is principle which prohibits contracting states to expel or return a refugee in

any manner whatsoever to the frontier of territories where his life or freedom

would be threatened on account of his race, religion, nationality, membership to

a particular social group or political opinion.

Exception to non-refoulement.

When there are reasonable grounds for regarding as danger to the security of

the country in which he is, or who, having been convicted by a final judgment of

a particular serious crime, constitutes a danger to the community of that state.

Extradition is the removal of an accused from the Philippines with the object of

placing him at the disposal of the foreign authorities to enable the requesting

state or government to hold him in connection with any criminal investigation

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directed against him or the execution of a penalty imposed on him under the

penal or criminal law of the requesting state or government.

Extradition is the surrender of a person by one state to another state where

he/she is wanted for prosecution or, if already convicted, for punishment.

Elements of extradition.

a. Act of sovereignty on the part of two states;

b. A request by one state to another state for the delivery to it of an alleged

criminal; and

c. Delivery of the person requested for the purpose of trial or sentence in the

territory of the requesting state.

Fundamental principle of extradition

a. Based on the consent of the State expressed in a bilateral treaty;

b. Principle of specialty – a fugitive who is extradited must be tried only for

the crime specified in the request for extradition and included in the list of

offenses in the extradition treaty;

c. Double criminality – the act for which the extradition is sought must be

punishable in both state;

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 d. Any person may be extradited. He/she need not be a citizen of the

requesting state;

e. The offense must have been committed in the territory of the requesting

state or against its interest;

f. Political and religious offenders are generally not subject to extradition, as

well as military offenses;

g. Prohibition on discrimination – extradition may not be granted if it would

subject the fugitive to prosecution based on race, religion, nationality or

membership in a particular social group or political opinion;

h. Lack of probable cause – the request for extradition must include

sufficient prima facie evidence of guilt attributable to the person requested

to be extradited.

Attentat clause. A provision in an extradition treaty which states that the

murder or assassination of the head of a state or any member of his/her family

will not be considered as a political offense and therefore extraditable.

Procedure of extradition

a. Request through diplomatic representative with:

a. Decision of conviction;

b. Criminal charge and warrant of arrest;

c. Recital of facts;

d. Text of applicable law designating the offense;

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 e. Pertinent documents

b. Department of Foreign Affairs forward the request to the Department of

Justice;

c. Department of Justice files petition for extradition with Regional Trial

Court;

d. Upon receipt of a petition for extradition and its supporting documents, the

Judge must study them and make, as soon as possible, a prima facie

finding whether;

a. They are sufficient in form and substance;

b. They show compliance with the extradition treaty and law; and

c. The person sought is extraditable.

e. Hearing;

f. Appeal to Court of Appeals within 10 days whose decision shall be final

and executory;

g. Decision forwarded to the Department of Foreign Affairs through the

Department of Justice;

h. Individual placed at the disposal of the authorities or requesting state

costs and expenses to be shouldered by the requesting state.

Distinguish extradition with deportation

As to nature

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E – surrender by force of a wanted person by the requested state to the

requesting state.

D – expulsion of unwanted or undesirable alien.

As to its exercise

E – May only be made pursuant to a treaty between the requested and

requesting state

D – a unilateral act and an exercise of sovereignty

As to its basis

E – based on offenses generally committed in the territory of the requesting

state.

D – based on causes arising in the local state.

As to place of transfer

E – it calls to the return of the fugitive to the state of origin

D – An undesirable alien may be deported to a state other than his/her own or

the state of origin

As to which benefited

E – For the benefit of the requesting state

D – takes place in the interest of the country or residence

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International human rights law is a law that transcends state boundaries by

seeking to define and uphold those rights held universally by every person

regardless of nationality. It deals with the way a state acts towards individuals

and group, and in particular, its own citizens.

Universal Declaration of Human Rights was adopted by the United Nations

General Assembly and promoted as a common standard of achievement for all

peoples and all nations, to the end that every individual and every organ of

society, keeping this declaration constantly in mind, shall strive by teaching and

education to promote respect for these rights and freedom and by progressive

measures, national and international, to secure their universal and effective

recognition and observance both among, the peoples of members state

themselves and among the peoples of territories under their jurisdiction.

A common standard of achievement for all people and all nations, to the end

that every individual and every organ of society, keeping this declaration in

mind, shall strive by teaching and education to promote respect for these rights

and freedoms and progressive measures, national and international, to secure

their universal and effective recognition and observance both among, the

peoples of the member state themselves and among the peoples of territories

under their jurisdiction.

Concept of self-determination of people.

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The concept postulate that all peoples have the right to self-determination. By

virtue of that right they freely determine their political status and freely pursue

their economic, social and cultural development.

When may the rights under the ICCPR be derogated from?

In times of public emergency which threatens the life of the nation and the

existence of which is officially proclaimed, the States Parties to the present

ICCPR may take measures derogating from their obligations under the present

ICCPR to the extent strictly required by the exigencies of the situation, provided

that such measures are not inconsistent with their other obligations under

international law and do not involve discrimination solely on the ground of race,

color, sex, language, religion, or social origin.

International Covenant on Economic, Social and Cultural Rights

Limitations in the exercise of the rights under international covenant on

economic, social and cultural rights.

The state may subject such rights only to such limitations as are determined by

law only in so far as this may be compatible with the nature of these rights and

solely for the purpose of promoting the general welfare in a democratic society.

International humanitarian law pertains to the laws of armed conflict. It seeks to

protect victims of armed conflicts (such as wounded and the sick, prisoners of

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war, and civilians) and tries to constrain the conduct of military operations in a

humanitarian passion.

International humanitarian law pertains to the laws of armed conflict. It seeks to

protect victims of armed conflicts, such as wounded and the sick, prisoners of

war, and civilians, and tries to constrain the conduct of military operations in a

humanitarian passion.

International humanitarian law pertains to the laws of armed conflict. It seeks to

protect victims of armed conflict, such as the wounded and sick, prisoners of

war, and civilians, and tries to constrain the conduct of military operations in a

humanitarian passion.

International humanitarian law pertains to the law of armed conflict. It seeks to

protect victims of armed conflict, such as the wounded and sick, prisoners of

war, and civilians, and tries to constrain the conduct of military operation in a

humanitarian passion.

Divisions of the laws of war

Jus ad bellum refers to the conditions under which one may resort to war or to

force in general; with a subdivision unknown as jus contra bellum or the law of

the prevention of war

Jus in bello governs the conduct of belligerent during a war, and in a broader

sense comprises the rights and obligation of neutral parties as well.

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Armed conflict means any use of force or armed violence between states or a

protracted armed violence between governmental authorities and organized

armed groups or between groups within a State. It does not cover internal

disturbance or tensions such as riots, isolated and sporadic acts of violence or

other acts of a similar nature.

International armed conflicts are those which at least two states are involved. It

includes all cases of declared war or of any other armed conflict which may

arise between two or more States which are parties to the Convention, even if

the state of war is not recognized by one of them and all cases of partial or total

occupation of the territory of a State Party, even if said occupation meets with

no armed resistance.

A war of national liberation is a conflict in which peoples are fighting against a

colonial domination and alien occupation and against racist regimes in the

exercise of their right to self-determination.

International law of the sea is the body of international rules that bind states

and other subjects of international law in their marine affairs.

International law of the sea is the body of international rules that bind states

and other subject of international law in their marine affairs.

The functions of the law of the sea are:

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 a. Spatial distribution of national jurisdiction – the law of the sea divides the

ocean into multiple jurisdictional zones and provides the rights and

obligations of the coastal states and third states according to these zones;

b. Ensuring international cooperation between states – the law of the sea

provides a legal framework for ensuring international cooperation in

marine affairs, thereby safeguarding the common interest of the

international community as a whole.

A baseline is a low-water line along the coast as marked on large scale charts

officially recognized by a coastal state. It is the line from which the territorial

seas and other coastal zones are measured.

Different types of baselines.

a. Normal baseline – the low-water line drawn along the coast;

b. Straight baselines – A system of straight lines joining a specified or

discrete points on a low-water line which may be used only by localities

where the coastline is deeply indented or cut into, or if there is a fringe of

islands along the coast in its immediate vicinity.

c. A system of straight line joining specified and discreet points of a low-

water line which may be used only by localities where the coastline is

deeply indented or cut into, or

d. Closing lines across river mouths and bays;

e. Archipelagic baselines.

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Archipelago is a group of islands, including parts of islands, interconnecting

waters and other natural features which are closely interrelated that such

islands, waters and other natural features form an intrinsic geographic,

economic and political entity or which historically have been regarded as such.

Limitations on the use of straight baseline method:

a. The baseline must not depart to any appreciable extent from the general

direction of the coast;

b. The areas lying within the baseline must be particularly closely linked to

the island formations which divide or surround them;

c. Account should be taken of certain economic interest peculiar to a region

when their reality and importance are clearly evidenced by a long usage.

Archipelagic waters are waters enclosed by the archipelagic baselines drawn in

accordance with UNCLOS regardless of their depth or distance from the coast.

Archipelagic sea lanes passage means the exercise in accordance with the law

of the Sea Convention of the rights of navigation and over flight in the normal

mode solely for the purpose of continuous, expeditious and unobstructed transit

between one part of the high seas or an exclusive economic zone and another

part of the high seas or economic exclusive zone

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Internal waters are those waters which lie landward of the baseline from which

the territorial sea is measured. They include the waters of lakes, rivers, and

bays as well as the internal waters within archipelagic waters

The territorial sea of every state shall not exceed 12 nautical miles , measured

from the baselines, and in case of archipelagic state, the breath of its territorial

sea shall be measured from its archipelagic baseline.

Methods of determining the territorial sea.

a. Normal baseline method – the territorial sea is simply drawn from the low-

water mark of the coast, to the breadth claimed, following its sinuosities

and curvatures but excluding the internal waters in bays and gulfs;

b. Straight baseline method – a system of straight line joining specified or

discrete points of the low-water marked which may used only by localities

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 contiguous zone is the territorial sea of a coastal State which extends up to

24 nautical miles from the baseline that is used in measuring the breadth of the

territorial sea. In this zone, the coastal State may exercise the control

necessary to:

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 a. Prevent infringement of its customs, fiscal, immigration, or sanitary laws

and regulations within its territory or territorial sea;

b. Punish infringement of the above laws and regulations committed within

its territory or territorial sea.

Exclusive economic zone

It is an area adjacent to the territorial sea, over which a State has special

rights over the exploration and utilization of the marine resources. It shall not

extend beyond 200 nautical miles from the baselines from which the breadth of

the territorial sea is measured, in case of archipelagic states, its breadth shall

be measured from its archipelagic baseline.

Rights enjoyed by the Philippines in its exclusive economic zone.

a. Sovereignty rights for the purpose of exploration and exploitation,

conservation and management, of the natural resources, whether living or

non-living, both renewable and non-renewable, of the seabed, including

the subsoil and the subjacent waters, and with regard to the other

activities for the economic exploitation and exploration of the resources of

the zone, such as the production of energy from the waters, currents and

winds;

b. Exclusive rights and jurisdiction with respect to the establishment and use

of artificial islands, off-shore terminal, installations and structures the

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 preservation of the marine environment, including the preservation and

control of pollution control and scientific research;

c. Such other rights as are recognized by international law or state practice.

Continental shelf. It comprises the seabed and subsoil of the submarine areas

that extend beyond its territorial sea throughout the natural prolongation of its

land territory to the outer edge of the continental margin, or to a distance of 200

miles from the baseline from which the breadth of the territorial sea is measured

where the outer edge of the continental margin does not extend up to that

distance.

Continental margin. It comprises the submerged prolongation of the land mass

of the coastal State and consists of the seabed and subsoil of the shelf, slope

and the rise. It does not include the deep ocean floor with its oceanic ridges or

the subsoil thereof.

Double jeopardy

When an accused is acquitted or convicted or the case against him is

dismissed or otherwise terminated without his express consent, by a court of

competent jurisdiction, upon a valid complaint or information, or when a formal

charge sufficient in form or substance to sustain a conviction and after the

accused had pleaded to the charge, the conviction or acquittal of the accused

or the dismissal of the case shall be a bar to another prosecution for the same

offense.

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Public office is a right, authority or duty, created and conferred by law, by which

for a given period either fixed by law or enduring at the pleasure of the creating

power, an individual is invested with some portion of the sovereign functions of

the state to be exercised by him for the benefit of the body politic.

De jure officer is one who is deemed, in all respects, legally appointed and

qualified and whose term of office has not expired.

De facto officer is one who has the reputation or appearance of being the officer

he assumed to be but who, in fact, under the law, has no right or title to the

office he assumes to hold.

Abandonment of an office has been defined as a voluntary relinquishment of

office by the holder with the intention of terminating his possession and control

thereof. Abandonment of office is a specie of resignation.

Resignation on the other hand, is a formal relinquishment, abandonment is

voluntary relinquishment through nonuser. Nonuser refers to a neglect to use a

privilege or a right or to exercise an assignment or an office.

Test of incompatibility of multiple office.

Whether one office is subordinate to the other, in the sense that one office has

the right to interfere with the other.

Primarily confidential position denotes not only confidence on the aptitude of

the appointee in the performance of the duty but primarily close intimacy in

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which freedom of delegation, discussion or reporting without embarrassment or

freedom from misgivings of betrayal of personal trust or confidential matters of

the state.

Highly technical position is that which requires possession of technical skill or

training in a supreme or superior degree.

Automatic reversion rule occurs when there is a chain of promotion

simultaneously submitted to the CSC for approval and the CSC disapproves the

appointment of person to a higher position. The effect is to invalidate the

promotion of those in the lower position and automatically revert them back to

their former position. Before a public officer or employee can be automatically

restored of his/her position, there must be:

a. a series of promotion;

b. all appointments are simultaneously submitted to the CSC for approval;

and

c. the CSC disapproves the appointment of the person proposed to a higher

position.

Three-fold liability rule provides that a public officer may be subject to civil,

criminal or administrative actions. The dismissal of an administrative case does

not necessarily bar the filing of a criminal prosecution from the same acts.

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It is a hornbook in administrative law that administrative cases are independent

from criminal actions from the same acts or omissions. Thus, an absolution

from a criminal charge is not a bar to an administrative prosecution, or vice

versa. Given the differences in the quantum of evidence required, the

procedures actually observed, the sanction imposed, as well as the objective of

the two proceedings, the findings and conclusion in one should not necessarily

binding on the other.

Doctrine of condonation provides that a public officer cannot be removed for

administrative misconduct committed during a prior term, since his/her re-

election to office operates as a condonation of the officer’s previous misconduct

to the extent of cutting off the right to remove him/her therefor.

Why did the Supreme Court abandon this doctrine?

Election is not a mode of condoning an administrative offense, and there is

simply no constitutional or statutory basis in our jurisdiction to support the

notion that an official elected for a different term is fully absolved of any

administrative liability arising from an offense done during a prior term.

How are administrative cases initiated before the Ombudsman?

a. On the basis of a complaint filed as a criminal or a grievance complaint or

request for assistance;

b. An administrative proceeding may also be ordered by the Ombudsman or

the respective Deputy Ombudsman on his initiative;

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 c. By a written complaint under oath accompanied by affidavits of witnesses

and other evidence in support of the charge. Such complaint shall be

accompanied by a certificate of non-forum shopping duly subscribed and

sworn to by the complainant of his counsel.

Instrumentalities are national agencies not integrated with the department

framework, vested with special functions or jurisdiction by law, endowed with

some if not all corporate powers, administering funds, and enjoying operational

autonomy usually through a charter.

Quasi-judicial, or administrative adjudicatory power, is the power to hear and

determine question of fact to which the legislative policy is to apply and decide

in accordance with the standards laid down by the law itself in enforcing and

administering the same law.

Administrative due process – Administrative due process requires that:

a. Right to a hearing;

b. Tribunal must consider evidence;

c. Evidence must be substantial;

d. Decision must be supported by facts and law;

e. Decision must be based on evidence adduced in the hearing or at least

contained in the records and disclosed to the parties;

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f. The board or judge must act on its or his/her own independent

consideration of facts and law of the case, and not simply accept the view

of the subordinate in arriving to a decision;

g. The decision must be rendered in such a manner that parties to

controversy can know various issues involved and the reason for the

decision rendered;

h. An impartial tribunal which dictates the one called upon to resolve a

dispute may not sit as judge and jury simultaneously, neither may he

review his decision on appeal.

General welfare clause.

General legislative power. Authorizes the municipal council to enact

ordinances and make regulations not repugnant to law, as may be

necessary to carry into effect and discharge powers and duties conferred

upon the municipal council by law.

Police power. Authorizes the municipality to enact ordinances as may be

necessary and proper for the health and safety, prosperity, moral, peace,

good order, comfort, and convenience of the municipality and its inhabitants,

and for the protection of their property.

The precautionary principle provides that where there are threats of

serious and irreparable damage, lack of full scientific certainty shall not be

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used as a reason for postponing cost-effective measures to prevent

environmental degradation.

Principle 21 of the Stockholm Declaration provides that States have

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 or other

States or of areas beyond the limits.

Amendments or revision

a. Any amendment to, or revision of, the Constitution may be proposed by:

a. The Congress, upon a vote of three-fourths of all its members; or

b. A constitutional convention

b. Amendments to the Constitution may likewise be directly proposed by the

people through initiative upon a petition of at least twelve per centum of

the total number of registered voters, of which every legislative district

must be represented by at least three per centum of the registered voters

therein. No amendment under this section shall be authorized within five

years following the ratification of this Constitution not oftener than once

every five years thereafter.

c. The Congress may, by a vote of at least 2/3 of all its members, call a

constitutional convention, or by a majority vote of all its members, submit

to the electorate the question of calling such a convention.

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