Beruflich Dokumente
Kultur Dokumente
I. GENERAL PRINCIPLES
3.
4.
5.
6.
1935 Constitution
Japanese Occupation
1973 Constitution
1987 Constitution
C. Amendment
1. Amendment isolated or piecemeal
change in the Constitution
Revision revamp or rewriting of the
entire instrument
2. Legislative Power merely provides
details for implementation
3. Steps
a. Proposal
- Congress, of ALL its members
understood as of Senate and of HRs
- Constitutional Convention, called into
existence by 2/3 a vote of all the members of
Congress with the question of whether or
not to call a convention to be resolved by the
people in a plebiscite
- People through Power of Initiative,
petition of at least 12% of the total number
of registered voters, of which every
legislative district must be represented by at
least 3% of the registered voters therein
power of the people to propose amendments
to the Constitution or to propose and enact
legislation through an election called for that
purpose
Limitation: No amendment w/in 5 years
following the ratification of this Constitution
nor more than once every five years
thereafter.
3 systems of initiative:
(1) Initiative on the Constitution
(2) Initiative on Statutes
(3) Initiative on Local Legislation
- Choice of method of proposal is within
the full discretion of the legislature
- 3 Theories on the position of a
Constitutional Convention vis--vis the
regular departments of government
(1) Theory of Conventional Sovereignty
(2) Convention is inferior to other
departments
5. Effects
of
Declaration
of
Unconstitutionality
- Orthodox View: unconstitutional act is
not a law, it confers no rights and imposes
no duties; it affords no protection, creates no
office; it is inoperative as if it had not been
passed at all.
- Modern View: certain legal effects of the
statute prior to its declaration of
unconstitutionality may be recognized.
6. Partial Unconstitutionality
Characteristics:
Permanence
Exclusiveness
Comprehensiveness
Absoluteness
Indivisibility
Inalienability
Imprescriptibility
3. Power of Taxation
Similarities
1. inherent in the state, without need of
express constitutional grant
2. necessary and indispensable
3. methods by which the state interferes
with private property
4. presupposes equivalent compensation
5. exercised primarily by legislature
Distinctions
1. Police power regulates liberty and
property
Eminent domain and taxation affects
only property rights
2. Police power and taxation are exercised
only by government
Eminent domain may be exercised by
private entities
3. Property taken in police power is usually
noxious or intended for noxious purposes
and may be destroyed
In eminent domain and taxation, the
property is wholesome and devoted to public
use/purpose.
4. Compensation in police power is the
intangible, altruistic feeling that the
individual has contributed to the public
good;
In eminent domain, it is the full and fair
equivalent of the property taken;
In taxation, it is the protection given
and/or public improvements instituted by
government for taxes paid.
Limitations
1. Bill of Rights
2. Courts may annul improvident exercise
of police power
Police Power
Power of promoting public welfare by
restraining and regulating the use of liberty
and property.
Requisites
(1) Necessity
(2) Private Property, except money and
choses in action
(3) Taking in the constitutional sense
(4) Public use
(5) Just Compensation full and fair
equivalent of the property taken; fair market
value of the property
Judicial Prerogative
Ascertainment of what constitutes just
compensation for property taken in eminent
domain cases is a judicial prerogative.
Form of Compensation
Paid in money and no other form.
In agrarian reform, payment is allowed
to be made partly in bonds because under
the CARP, we do not deal with the
traditional exercise of the power of eminent
domain; we deal with a revolutionary kind
of expropriation.
Jurisdiction
RTC
Power of Taxation
Double taxation
Additional taxes are laid on the same
subject by the same taxing jurisdiction
during the same taxing period and for the
same purpose.
Tax Exemptions
No law granting tax exemption shall be
passed without the concurrence of a majority
of all the Members of Congress.
Charitable institutions, churches and
parsonages or convents appurtenant thereto,
mosques, non-profit cemeteries, and all
lands, buildings and improvements actually,
directly and exclusively used for religious,
charitable or educational purposes
exempt
Revenues and assets of non-stock, nonprofit educational institutions used actually,
directly and exclusively for educational
purposes exempt
Proprietary educational institutions
may be exempt subject to limitations
provided by law
Grants, endowments, donations, or
contributions used actually, directly, and
exclusively for educational purposes
exempt
Republicanism
The Philippines is a democratic and
republican state. Sovereignty resides in the
people and all government authority
emanates from them.
Essential features
(1) Representation
(2) Renovation
Manifestations
(1) Government of law and not of men
(2) Rule of majority
(3) Accountability of public officials
(4) Bill of rights
(5) Legislature cannot pass irrepealable laws
(6) Separation of powers
Purpose
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.
10
Delegation of powers
Potestas delegate non potest delegare
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.
Permissible delegation
(1) Tariff powers to the president
11
Civilian Supremacy
Civilian authority is, at all times
supreme over the military. The AFP is the
protector of the people and the State. Its goal
is to secure the sovereignty pf the State and
integrity of the national territory.
statutory,
not
Exceptions
(1) Section 28(3), Article 6: Exemption from
taxation
12
Land reform
State shall promote comprehensive rural
development and agrarian reform.
Indigenous cultural communities
State recognizes and promotes the rights
of indigenous cultural communities within
the framework of national unity and
development.
restriction
on
governments law- and rule-making powers
Requisites:
1. interest of the public
2. means
employed
are reasonably
necessary for the accomplishment of the
purpose and not unduly oppressive on
individuals
2. Procedural restriction on actions of
judicial and quasi-judicial agencies of
government
Requisites:
1. impartial court or tribunal clothed with
judicial power to hear and determine the
matter before it
2. jurisdiction must be lawfully acquired
over the person of the defendant and over
the property which is the subject matter of
the proceeding
3. the defendant must be given an
opportunity to be heard
4. judgment must be rendered upon lawful
hearing
Civil Rights
Right that belong to every citizen of the
state or country and are not connected with
the organization or administration of
government.
Political Rights
Right to participate, directly
indirectly, in the establishment
administration of government.
or
or
14
Scope of Equality
Economic
(1) Free access to courts
(2) Marine wealth reserved for Filipino
citizens
(3) Reduction of social, economic and
political inequalities
Political
(1) Free access to courts
(2) Bona fide candidates being free from
harassment/discrimination
(3) Reduction of social, economic and
political inequalities
Social
Valid Classification
(1) Substantial distinctions
(2) Germane to the purpose of the law
(3) Not limited to existing conditions only
(4) Must apply equally to all members of the
same class
Searches and Seizures
Scope
Available to all persons, including
aliens, whether accused of a crime or not.
Artificial persons are also entitled to the
guarantee, although they may be required to
open their books of accounts for
examination by the State in the exercise of
police and taxing powers.
Right is personal
15
Principles:
(1) The determination of probable cause is a
function of the judge
(2) The preliminary inquiry made by the
prosecutor does not bind the judge, as it is
the report, affidavits, the transcript of
stenographic notes and all other supporting
documents
behind
the
prosecutors
certification which are material in assisting
the judge in his determination of probable
cause
(3) Judges
and
prosecutors
should
distinguish the preliminary inquiry which
determines probable cause for the issuance
of the warrant of arrest from the preliminary
investigation proper which ascertains
whether the offender should be held for trial
or be released
(4) Only a judge may issue a warrant of
arrest
Particularity of Description:
16
In flagrante arrests:
(1) The person to be arrested must execute
an overt act indicating that he had just
committed, is actually committing, or is
attempting to commit a crime; and
(2) Such overt act is done in the presence or
within the view of the arresting officer.
In (2):
(1) there must be immediacy between the
time the offense is committed and the time
of the arrest. If there was an appreciable
lapse of time between the arrest and the
commission of the crime, a warrant of arrest
must be secured and
(2) the person making the arrest has
personal knowledge of certain facts
indicating that the person to be taken into
custody has committed the crime.
17
Warrantless Searches
(1) When the right is voluntarily waived;
(2) When there is a valid reason to stopand-frisk;
(3) Where the search (and seizure) is an
incident to a lawful arrest;
(4) Search of vessels and aircrafts;
(5) Search of moving vehicles;
(6) Inspection of buildings and other
premises for the enforcement of fire,
sanitary and building regulations;
(7) Where prohibited articles are in plain
view;
(8) Search and seizure under exigent and
emergency circumstances; and
(9) Conduct of areal target zoning or
saturation drive/s as valid exercise of
military powers of the President (Guanzon
vs. de Villa)
Valid Waiver of Constitutional Right
(1) Right exists
(2) That the person involved had
knowledge, either actual or constructive of
the existence of such right; and
(3) That the person had an actual intention
to relinquish the right.
Searches of Passengers at Airports
- When the accused checked in his
luggage as a passenger of a plane, he agreed
to the inspection of his luggage in
accordance with customs laws and
regulations, and thus waived any objection
to a warrantless search.
- Search made pursuant to routine airport
security is allowed under RA 6235, which
provides that every airline ticket shall
contain a condition that hand-carried
luggage, etc., shall be subject to search, and
this condition shall form part of the contract
between the passenger and the air carrier.
18
Checkpoint Search
(1) Mere routine inspection: the search is
normally permissible when it is limited to a
mere visual search, where the occupants are
not subjected to a physical or body search.
(2) Extensive
search:
constitutionally
permissible if the officers conducting the
search had reasonable or probable cause to
believe, before the search, that either the
motorist is a law offender or they will find
the instrumentality or evidence pertaining to
a crime in the vehicle to be searched.
Plain View
- Object is plainly exposed to sight.
- Where the object seized is inside a
closed package, the object is not in plain
19
Privacy
of
Communications
and
Correspondence
- The privacy of communication and
correspondence shall be inviolable EXCEPT
upon lawful order of the court OR when
public safety or order requires otherwise as
prescribed by law.
- Any evidence obtained in violation of
this or the preceding section shall be
inadmissible for any purpose in any
proceeding.
Inviolability
- Exceptions:
(1) Lawful order of the court;
(2) Public safety or order requires otherwise,
as may be provided by law.
- Includes tangible and intangible objects.
- RA 4200: illegal for any person not
authorized by all the parties to any private
communication, to secretly record such
communications by means of a tape
recorder. Telephone extension was not
among the devices covered by this law.
Freedom of Expression
- No law shall be passed abridging the
freedom of speech, of expression nor of the
press, or the right of the people peaceably to
assemble and petition the government for
redress of grievances.
- Scope: Any and all modes of expression.
Aspects:
(1) Freedom from censorship or prior
restraint
- Need not be total suppression, even
restriction
of
circulation
constitutes
censorship.
- Section 11 (b), RA 66461: legitimate
exercise of the police power of the State to
regulate media or communication and
information for the purpose of ensuring
20
21
22
Freedom of Religion
- No law shall be made respecting an
establishment of religion or prohibiting the
free exercise thereof.
- The free exercise and enjoyment of
religious profession and worship, without
discrimination or preference, shall forever
be allowed. No religious test shall be
23
24
25
Non-impairment Clause
26
29
30
31
32
33
Habeas Corpus
- The privilege of the writ of habeas
corpus shall not be suspended except in
cases of invasion or rebellion when public
safety requires it.
- Definition: a writ issued by a court
directed to a person detaining another,
commanding him to produce the body of the
prisoner at a designated time and place, with
the day and cause of his caption/detention,
to do, to submit to and to receive whatever
the court/judge awarding the writ shall
consider in his behalf.
- When available: restores the liberty of an
individual subjected to physical restraint. It
secures to the prisoner the right to have the
cause of his detention examined and
determined by the courts; and to have the
issue ascertained as to whether he is held
under lawful authority.
- May also be availed of where, as a
consequence of a judicial proceeding:
1. there has been deprivation of
constitutional rights
2. the court has no jurisdiction to impose
the sentence
3. excessive penalty has been imposed,
since such sentence is void as to the excess.
- The writ will not issue where the person
alleged to be restrained on liberty is in the
custody of an officer under a process issued
by the court which has jurisdiction to do so.
- Even if the detention is at its inception
illegal, supervening events such as the
issuance of a judicial process, may prevent
the discharge of the detained person.
36
Self-incrimination
- No person shall be compelled to be a
witness against himself.
- Right is available not only in criminal
prosecutions but also in all other
government proceedings, including civil
actions and administrative or legislative
investigations.
- It may be claimed not only by the
accused but also by any witness to whom a
question calling for an incriminating answer
is addressed.
- General Rule: it may be invoked only
when and as the question calling for an
incriminating answer is asked. This applies
only to ordinary witness.
In criminal prosecution accused may not
be compelled to take the witness stand.
Similarly applicable to a respondent in
an administrative proceeding.
- Scope: not against all compulsion, but
testimonial compulsion only. (not the
inclusion of his body in evidence when it
may be material)
Prohibition extends to the compulsion
for the production of documents, papers and
chattels that may be used as evidence
against the witness, except where the State
has a right to inspect the same such as the
books of accounts of corporations, under the
police or taxing power or where a
government official is required to produce
official documents/public records which are
in their possession.
Also protects the accused against any
attempt to compel him to furnish a specimen
37
Prohibited Punishment
- Excessive fines shall not be imposed.
- Nor cruel, degrading or inhuman
punishment inflicted.
- Neither shall death penalty be imposed,
unless for compelling reasons involving
38
39
VII. CITIZENSHIP
- Definition: membership in a political
community which is personal and more or
less permanent in character.
- Nationality is membership in any class
or form of political community. It does not
necessarily include the right/privilege of
exercising civil or political rights.
- Modes of acquiring:
1) Marriage
40
2) Birth
- Jus soli
- Jus sanguinis
3) Naturalization
- Natural-born citizens citizens of the
Philippines from birth without having to
perform any act to acquire or perfect their
Philippine citizenship.
- Marriage by Filipino to an alien
citizens of the Philippines who marry aliens
shall retain their citizenship, unless by their
act or omission they are deemed, under the
law, to have renounced it.
- Dual allegiance of citizens is inimical to
the national interest and shall be dealt with
by law.
- Dual citizenship as a disqualification
under the LGC must refer to dual allegiance.
- For candidates with dual citizenship, it is
sufficient that they elect Philippine
citizenship upon the filing of their certificate
of candidacy to terminate their status as
persons with dual citizenship.
Filing of certificate of candidacy is
sufficient to renounce foreign citizenship.
- Attack on ones citizenship may be made
only through a direct and not collateral
attack.
- Doctrine of res judicata does not
ordinarily apply to questions of citizenship.
Exception:
1) Persons citizenship is resolved by a
court or an administrative body as a material
issue in the controversy, after full-blown
hearing
2) Active participation of the SolGen or his
representative
3) Finding of citizenship is affirmed by the
SC
- Citizens of the Philippines
1) Citizens of the Philippines at the time of
the adoption of the 1987 Constitution
2) Whose fathers or mothers are citizens of
the Philippines
3) Born before January 17, 1973, of
Filipino mothers, who elect Philippines
41
42
- Effects
1) Vests citizenship on wife if she herself
may be naturalized
2) Minor children born in the Philippines
before naturalization shall also be
considered citizens
3) Minor children born outside the
Philippines but residing in the Philippines at
the time of naturalization shall also be
considered citizens
4) Minor children born outside the
Philippines shall be citizens only during
minority, unless he begins to reside
permanently in the Philippines
5) Child born outside the Philippines, after
the naturalization of the parents shall be
considered citizens, Provided he registers as
such before any Philippine consulate within
one year after attaining majority age and
takes his oath of allegiance
- Grounds for Denaturalization
1) Naturalization
certificate
obtained
fraudulently or illegally
2) Invalid declaration of intention
3) Minor children failed to graduate
through the fault of parents
4) Allowed himself to be used as dummy
5) If within 5 years he returns to his native
country or some foreign country and
establishes residence there
- 1-year stay in native country or 2-year
stay in a foreign country is prima facie
evidence of intent to take up residence
43
- Procedure
1) File with Special Committee a petition
2) Publication of pertinent portions of the
petition once a week for 3 consecutive
weeks in newspaper of general circulation
3) Posting of copies in public or
conspicuous areas
4) Furnish copies to following agencies
who shall post copies of the petition in any
public or conspicuous areas in their building
officers and premises and within 30 days
submit to Committee a report stating
whether or not petitioner has any derogatory
record on file
DFA
Bureau of Immigration and Deportation
Civil registrar of petitioners place of
residence
NBI
5) Within 60 days from receipt of agencies
report, Committee shall consider and review
all information.
6) If Committee receives any adverse
information,
Committee shall allow
petitioner to answer, explain or refute the
petition
7) Deny or Approve petition
8) Within 30 days from approval, petitioner
pays P100,000, take oath of allegiance and
certificate of naturalization shall issue.
9) Within 5 days from taking oath, BoI
shall forward copy of oath to the proper
local civil registrar and cancel petitioners
alien certificate of registration.
- Status of Alien Wife and Minor Children
May filed a petition for cancellation of
their alien certificate of registration.
If applicant is a married woman,
husband may not benefit. But minor children
may avail of the right to seek the
cancellation of alien certificate of
registration.
- Cancellation of the Certificate of
Naturalization
1) Naturalized person or representative
made
any
false
statement
or
44
1) Referendum on Statutes
2) Referendum on local legislation
- Prohibited measures
1) Petition embracing more than one
subject
2) Involving emergency measures, the
enactment of which is specifically vested in
Congress by the Constitution, cannot be
subject to referendum, until 90 days after
effectivity
- Local Initiative,
Not less than 2,000 registered voters in
case of autonomous regions
1,000 in provinces
and cities
100 in
municipalities
50 in baranagays
File a petition with Regional Assembly
or local legislative body
- Limitation on Local Initiative
1) Exercised not more than once a year
2) Extend only to subjects or matters which
are within the legal powers of the local
legislative body to enact
3) If at any time before the initiative is
held, the local legislative body shall adopt in
toto the proposition presented, the initiative
shall be cancelled
VIII.
THE
LEGISLATIVE
DEPARTMENT
- Legislative power the power to
propose, enact, amend and repeal laws
- Vested in Congress except to the extent
reserved to the people by the provision in
initiative and referendum
People can directly propose and enact
laws or approve or reject any act or law or
part thereof passed by the Congress or local
legislative body after the registration of a
petition thereof signed by at least 10 per
centum of the total number of registered
voters, of which every legislative district
must be represented by at least 3 per centum
of the registered voters.
Initiative power of the people to
propose amendments to the Constitution or
to propose and enact legislation through an
election called for that purpose.
1) Initiative on the Constitution
2) Initiative on Statutes
3) Initiative on local legislation
Indirect Initiative exercise of initiative
by the people through a proposition sent to
Congress or local legislative body for action
Referendum power of the electorate to
approve or reject legislation through an
election called for that purpose.
45
Principles
1) Minor follows domicile of parents
2) Domicile of origin is lost only when
there is
a. actual removal or change of domicile
b. bona fide intention of abandoning the
former residence and establishing a new one
c. acts which corresponds with the purpose
3) Wife does not automatically gain
husbands domicile
THEORY OF LEGAL IMPOSIBILITY
J. Francisco (Aquino v. Comelec)
Immigration to the US by virtue of a
green card constitutes abandonment of
domicile in the Philippines. (Caasi vs.
COMELEC)
Term: 3 years, commencing at noon on
the 30th day of June next following their
election,
Limitation: shall not serve for more than
3 consecutive terms.
- Party-List System: mechanism for
proportional representation
Party: political party, sectoral party or
coalition of parties
Political Party: 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
candoidates for public office.
National Party: constituency is spread
over the geographical territory of at least a
majority of the regions.
Regional Party: constituency is spread
over the geographical territory of at least a
majority of the cities and provinces
comprising the region.
Sectoral Party: (LUFEP-WHIP-VY)
organized group of citizens belonging to any
of the following: labor, urban poor,
fisherfolk, elderly, peasants, women,
handicapped,
indigenous
cultural
46
47
Officers
Senate elects its President
House elects its Speaker
Each nay choose such other officers as it
may deem necessary
Other Inhibitions
not personally appear as counsel before
any court, ET, quasi-judicial or other
administrative bodies
not be directly or indirectly interested
financially in any contract with, or any
franchise or special privilege granted by the
Government
not intervene in any matter before any
office of the Government for his pecuniary
benefit or where he may be called upon to
act on account of his office.
Quorum
Majority of each House
But a smaller number may adjourn from
day to day and may compel the attendance
of absent Members in such manner and
under such penalties as such House may
determine
Quorum in the Senate shall be the total
number of Senators who are in the country
and within the coercive jurisdiction of the
Senate.
Session
Regular: convene once a year on the 4 th
Monday of July unless a different date is
fixed by law; and shall continue for such
number of days as it may determine until 30
days before the opening of its next regular
session, exclusive of Saturdays, Sundays
and legal holidays.
Special: call by president usually to
consider legislative measure which the
President may designate in his call
Joint
1) Voting Separately
a. Choosing the president
b. Determine disability of the president
c. Confirming nomination of VP
d. Declaration of the existence of a state of
war
e. Proposing constitutional amendments
2) Voting Jointly
a. Revoke/extend proclamation suspending
the privilege of the writ of HC
b. Or placing the Philippines under martial
law
Adjournment neither House during the
sessions of the Congress shall, without the
consent of the other adjourn for more than 3
days nor to any other place than that in
which the 2 Houses shall be sitting.
Rules of Proceedings
Each House determined the rules of its
proceedings.
Discipline of Members
House may punish its members for
disorderly behavior, and with concurrence of
2/3 of all its members, suspend (for not
more than 60 days) or expel a member.
Determination of acts which constitute
disorderly behavior is within the full
discretionary authority of the House
concerned, and the Court will not review
such determination, the same being a
political question.
Records and Books of Accounts
Preserve and open to public
Books shall be audited by COA which
shall publish annually an itemized list of
amounts paid to and expenses incurred by
each member.
Legislative Journal and Congressional
Records
Each House shall keep a Journal of its
proceedings, and from time to time publish
49
Electoral Tribunals
Composition
a. 3 SC Justices designated by CJ, the
senior justice shall be the chairman
b. 6 members of the house, chosen on the
basis of proportional representation from the
political parties registered
Non-partisan court; independent of
Congress
Termination of Membership:
a. Expiration of congressional term
b. Death
c. Resignation from political party
d. Formal affiliation to another political
party
e. Removal for other valid causes
Cannot disqualify senator-member just
because election contest is filed against him.
(Abbas vs. Senate ET)
Doctrine of Primary Administrative
Jurisdiction, prior recourse to the House is
Powers of Congress
1. General (plenary) legislative power
- Limitations:
1. Substantive
- Express
a. Bill of rights
b. Appropriations
c. Taxation
d. Constitutional appellate jurisdiction of
SC
50
i.
Procedure
for
approving
appropriations for Congress shall strictly
follow the procedure for approving
appropriations for other departments and
agencies. (to prevent sub rosa appropriation
by Congress)
ii. Prohibition
against
transfer
of
appropriations
Exception:
1) President
2) Senate President
3) Speaker
4) Chief Justice
5) Heads of Constitutional Commission
By law, be authorized to augment any
item in the general appropriation law for
their respective offices from savings in other
items of their respective appropriations.
iii. Prohibition against appropriation for
sectarian benefit
Exception: priest, preacher, minister or
dignitary is assigned to the armed forces or
to any penal institution or government
orphanage or leposarium.
iv. Automatic reappropriation
If Congress failed to pass the general
appropriations bill for the ensuing year, the
general appropriations bill for the preceding
fiscal year shall be deemed re-enacted until
said bill is passed.
Impoundment the refusal by the
President for whatever reason to spend funds
made available by Congress. It is the failure
to spend or obligate budget authority of any
type.
Appropriation
Reserves
the
Administrative Code authorizes the Budget
Secretary to establish reserves against
appropriations to provide for contingencies
and emergencies which may arise during the
year.
This is expenditure deferral not
suspension, since the agencies concerned
can still draw on the reserves if the fiscal
outlook improves.
3. Power of Taxation
Limitations
1. uniform and equitable evolve a
progressive system of taxation
2. charitable institutions, etc. and all lands,
buildings and improvements actually,
directly and exclusively used for religious,
charitable or educational purposes shall be
exempt from taxation.
3. all revenues and assets of non-stock,
non-profit educational institutions used
directly, actually and exclusively for
educational purposes shall be exempt from
taxation.
4. Law granting tax exemptions shall be
passed only with concurrence of majority of
all members of Congress
4. Power of Legislative Investigation
Conduct inquiries in aid of legislation.
Rights of persons appearing in or
affected by such inquiries shall be respected.
Limitations
1. in aid of legislation
2. in accordance with duly published rules
of procedure
3. Rights of persons appearing in, or
affected by such inquiry shall be respected
Power to punish for contempt: Senate
being a continuing body may order
imprisonment for an indefinite period, but
principles of due process and equal
protection will have to be considered.
5. Question Hour
Heads of the departments may upon their
own initiative with the consent of the
President OR upon the request of wither
House, as the rules of each House shall
provide, appear before and be heard by the
House on any matter pertaining to their
departments.
Written questions submitted to the
Senate P or Speaker, 3 days before the
scheduled appeared.
Interpellations shall not be limited to the
written questions, may cover matters related
thereto.
53
Prohibitions/Inhibitions
1. Not receive any other emoluments from
the government or nay other source
2. Not hold any other office or
employment, unless provided in this
Constitution
- VP may be appointed to the Cabinet
without need of confirmation from
Commission on Appointment
- Secretary of Justice is ex-officio member
of Judicial and Bar Council
- Secretary of Labor ex-officio member
of BOD of PEZA
- Secretary of TC ex-officio Chairman
of PPA and LRTA
- Prohibition must not be construed as
applying to poses occupied by Executive
officials without additional compensation in
an ex-officio capacity, as provided by law
and as required by the primary functions of
the said officials office. These posts do not
comprise any other office but is an
imposition of additional duties and functions
on said official.
3. Not directly or indirectly practice any
other profession, participate in any business
or be financially interested in any contract,
franchise or special privilege
4. Strictly avoid conflict of interest in the
conduct of their office
5. May not appoint Spouse or Relatives by
consanguinity or affinity within the fourth
civil degree as
a. Members of Constitutional Commissions
b. Office of the Ombudsman
c. Secretaries
d. Undersecretaries
e. Chairman/heads
of
bureaus/offices/GOCCs/subsidiaries
Rules on Succession
- Vacancy at the BEGINNING of term
DEATH
PERMANENT
55
or VP-elect
shall
become President
DISABILITY
of
President elect
President-elect fails to VP-elect shall act
qualify
as President until
President-elect
shall have qualified
President shall not VP-elect shall act
have been chosen
as President until
President-elect
shall have been
chosen
and
qualified
No President and VP:
Senate President or
- Chosen
in case of his
- Qualified
disability,
the
- Both died
Speaker of the
- Both
become House shall act as
permanently disabled
President until a
President or VP
shall been chosen
and qualified.
In case of inability
of both, Congress
shall,
by
law
provide for the
manner by which
one who is to act
as President shall
be selected until a
President or VP
shall
have
qualified.
Temporary Disability
President transmits to Senate President
and Speaker
56
Power of Appointment
- Nominate and with consent of the
Commission on Appointments, appoint:
a. Heads of the executive departments
b. Ambassadors
c. Other public ministers and consuls
d. Officers of the armed forces from the
rank of colonel or naval captain
57
impeachment
Judges disciplining authority of SC
Where power of removal is lodged in
President:
a. Cause as may be provided by law
b. Prescribed administrative procedure
Members of career service of the Civil
Service who are appointed by the President
may be directly disciplined by him
Members of Cabinet and Officers whose
continuity in office depends upon pleasure
59
60
Pardoning Power
- Except in cases of IMPEACHMENT or
AS OTHERWISE PROVIDED IN THE
CONSTITUTION
- May grant, after conviction by final
judgment
a. Reprieves
b. Commutations
c. Pardons
d. Remit fines and forfeitures
61
AMNESTY
Addressed
to
political offenses
Classes of persons
No need for distinct
acts of acceptance
Concurrence
by
Congress
Public act which
courts may take
judicial notice
Looks back and puts
into oblivion the
offense itself
Treaties
Formal documents
require ratification
International
agreements which
involve
political
issues or changes of
national policy
PARDON
Infractions of peace
of the state
Individual
Acceptance needed
Involving
arrangements
permanent
character
Nope
Private act which
must be pleaded and
proved
Looks forward and
relieves pardonee of
the consequences of
the offenses
of
International
Agreements
Become
binding
through
executive
action
International
agreements involving
adjustments
of
details carrying out
well
established
national
policies
and traditions
Involving
arrangements of a
more
or
less
temporary nature
Borrowing Power
- Contract or guarantee foreign loans on
behalf of the Republic, with prior
concurrence of Monetary Board and subject
to such limitations as may be provided by
law.
- MB, shall w/in 30 days from end of
every quarter, submit to the Congress a
complete report of its decisions on
applications for loans to be contracted or
guaranteed by the Government/GOCC
which would have the effect of increasing
the foreign debt, and containing other
matters as may be provided by law.
Diplomatic Power
Informing Power
- Address Congress at the opening of its
regular session
- May appear before it at any other time
X. JUDICIAL DEPARTMENT
Judicial Power
62
Where vested
- 1 SC
- Such lower courts as may be established
by law
Jurisdiction
- Power to hear and decide a case
- Congress shall have the power to define,
prescribe and apportion the jurisdiction of
various courts, but may not deprive SC of its
jurisdiction over cases enumerated in
Section 5, Article VIII
- No law shall be passed increasing
appellate jurisdiction of SC without its
advice and concurrence
Constitutional
Safeguards
to
Insure
Independence of SC
1. SC is a constitutional body; it may not
be abolished by legislature
2. members of SC are removable only by
impeachment
3. SC may not be deprived of its original
and appellate jurisdiction; Appellate
jurisdiction may not be increased without its
consent and concurrence
4. SC has administrative supervision over
all inferior courts and personnel
5. SC has exclusive power to discipline
judges and justices of inferior courts
other
other
63
2)
3)
1)
2)
3)
4)
Justice Secretary
Representative of Congress
Regular Members
Representative of IBP
Professor of Law
Retired justice of SC
Representative of private sector
Secretary ex-officio: clerk of SC
Original Jurisdiction
1) Cases affecting ambassadors, public
ministers and consuls
2) Petition for certiorari, prohibition,
mandamus
3) Quo warranto
4) Habeas corpus
Supreme Court
Composition
1 CJ
14 Associate Justices
May sit en banc or in its discretion, in
divisions of 3, 5 or 7 members
Vacancy shall be filled within 90 days
from occurrence
En Banc concurrence of a majority of
the members who took part in the
deliberations and voted
1) Constitutionality
of
a
treaty,
international or executive agreement, or law
2) All others required by ROC
3) Constitutionality,
application
or
operation of PDs, orders, instructions,
ordinances and other regulations
Division - concurrence of a majority of
the members who took part in the
deliberations and voted and in no case
without the concurrence of at least 3 such
members
When required number is not obtained
case shall be decided en banc (case
decided NOT matters - resolved)
64
Power of Appointment
- Appoint all officials and employees of
the Judiciary in accordance with Civil
Service Law
Rule-Making Power
- Promulgate rules:
1) Protection
and
enforcement
of
constitutional rights
2) Pleadings
3) Practices
4) Procedure in all courts
5) Admission to practice of law
6) Admission to TB
7) Legal assistance to underprivileged
- Limitations:
1) Simplified and inexpensive procedure
2) Uniform in all courts of the same grade
3) Not diminish, increase or modify
substantive rights
- Integrated Bar
State-organized bar to which each
lawyer must belong
Official unification of entire lawyer
population, where each lawyer is given the
opportunity to do his share in carrying out
the objectives of the Bar as well as obliged
to bear his portion of its responsibilities
Requires membership and financial
support of every atty as a condition sine qua
non to the practice
65
Salaries
- Fixed by law
- May not be decreased during their
continuance in office
- Imposition of income tax on salaries of
judges does not violate the constitutional
prohibition against decrease in salaries
Tenure of Judges/Justices
- SC: Justices may be removed only by
impeachment
Special Prosecutor has no authority to
conduct an investigation on charges against
a member of the SC, in view of filing a
criminal information. Because if found
guilty, he will be removed from office
violation of his security of tenure.
- LC: Judges shall hold office during
GOOD BEHAVIOR until they reach the age
of 70 or become INCAPACITATED to
discharge the duties of their offices.
SC en banc shall have the power to
discipline judges of LCs, or order their
dismissal by a vote of a majority of the
members who took part in the deliberations
and voted
Periods of Decisions
- All cases filed after the effectivity of the
Constitution must be decided and resolved,
from date of submission
24 months SC
12 months lower collegiate courts
3 months all other lower courts
- Unless in the 2 latter cases, the period is
reduced by the SC
- Certification to be signed by the Chief
Justice/Presiding Justice shall be issued
stating the reason for delay
66
Inhibitions/Disqualifications
1. not hold any other office or employment,
during tenure
2. not engage in the practice of any
profession
3. not engage in the active management or
control of any business which in any way
may be affected by the functions of his
office
4. not be financially interested, directly or
indirectly, in any contract or in any franchise
or privilege granted by the Government
67
Enforcement of Decision
- Final decision of the CSC are
enforceable by writ of execution which CSC
may itself issue.
Decisions
1. Each Commission shall decide by a
majority vote of all its members any case or
matter brought before it w/in 60 days from
the date of its submission for decision or
resolution.
- Majority vote of ALL members and not
only of those who participated in the
deliberations and voted thereon.
- Retired prior to promulgation of decision
votes should be considered withdrawn, as
if they had not signed the resolution; only
the votes of the remaining commissioners
shall be counted.
- Treat the procedural requirements on
deadlines realistically.
2. Aggrieved party may bring the decision
to the SC on certiorari w/in 30 days from
receipt of copy
- When Court reviews a decision of the
COMELEC,
the
Court
exercises
extraordinary
jurisdiction;
thus
the
proceeding is limited to issues involving
grave abuse of discretion resulting in lack or
excess of jurisdiction and does not ordinarily
empower the Court to review factual
findings.
- Certiorari under R65 is the appropriate
remedy.
68
Classes of Service
1. Career Service
a. Description
- Entrance based on merit and fitness, as
far as practicable by competitive
examinations
- Or based on highly and technical
qualifications
- Opportunity for advancement to higher
career positions
- Security of tenure
b. Includes:
1) Open Career Service
- Prior qualification in an appropriate
examination is required
2) Closed Career Service
- Scientific or highly technical
3) Career Executive Service
- Undersecretaries, bureau directors, etc.
4) Positions in the Armed Forces of the
Philippines
- Governed by a different merit system
5) Career Officers
- Other than those belonging to Career
Executive Service, appointed by President,
e.g. foreign service
6) Personnel of GOCC w/ original charters
7) Permanent laborers (skilled, semi-skilled
or unskilled)
c. Incumbents of positions which are
declared to be CES positions for the first
time who hold permanent appointments
Scope of the CS
- Embrace ALL branches, subdivisions,
instrumentalities and agencies of the
Government, including GOCCs with
original charter
69
70
Disqualifications
1) Lost in any election within 1 year
preceding the appointment
2) Elective official during tenure
3) Appointive official, except when
allowed by law or the primary functions of
his position
Ex-officio capacity
Security of Tenure
- Removed and suspended for case
provided by law.
- Ground, procedure for investigation and
the discipline of career service officers and
71
direct
disciplinary authority of the President
- Reassignment does not offend the
constitutional guarantee
- Reinstatement deemed not to have left
his office; entitled to payment of back
salaries, notwithstanding silence.
Payment of back wages during the
period of suspension of a civil servant who
is subsequently reinstated is proper only if
he is found innocent of the charges and the
suspension is unjustified.
BUT where the reinstatement is ordered
not as a result of exoneration but merely as
an act of liberality, the claim for back wages
was not allowed. It follows the general rule
that the public official is not entitled to
compensation if he has not rendered any
service.
- Valid abolition of office does not violate
the constitutional guarantee of security of
tenure.
- ROC, career service officer or employee
who has been unlawfully ousted from his
office has 1 year within which to file an
action in court to recover office.
Exception: Cristobal vs. Melchot
grounds of equity
- Appellate jurisdiction of the CSC only
over Merit System Protection Boards
decisions in administrative disciplinary
cases involving the imposition of the penalty
of suspension, fine, demotion in rank or
salary, transfer, removal, dismissal from
office not over MSPB decision
exonerating the accused. Only by the party
adversely affected (Not ER).
- He who, while occupying one office,
accepts another incompatible with the first,
ipso facto vacates the first office and his title
thereto is thereby terminated without any
other act of proceeding.
Term
- Appointed by the President with the
consent
of
the
Commission
on
Appointments
- Term of 7 years, without reappointment
- In no case shall any member be
appointed or designated in temporary or
acting capacity.
73
75
File
petition
in
court
for
the
inclusion/exclusion of voters, upon verified
complaint or in its own initiative; investigate
and/or prosecute cases for violations of
election laws
Finding of probable cause in the
prosecution of election offenses rests in the
COMELECs sound discretion
Includes the authority to decide whether
or not to appeal the dismissal of a case by
the TC.
Recommend to Congress effective measures
to minimize election spending, limitation of
places where propaganda materials shall be
posted and to prevent and penalize all forms
of election frauds, offenses, malpractice and
nuisance candidates
1. Constitutional
Commissions
and
bodies/offices granted fiscal autonomy
2. autonomous
state
colleges
and
universities
3. GOCCs and subsidiaries with or
without original charter
4. Non-governmental entities receiving
subsidy or equity
Temporary or special pre-audit
Duty to pass in audit a salary voucher is
discretionary
Exception: authority of Auditor General
is limited to auditing (whether 1) there is a
law appropriating funds for a given purpose,
2) goods or services have been delivered, 3)
payment has been authorized) presence
of all, duty to pass a voucher in audit
becomes MINISTERIAL.
COA may validly veto appropriations
which violated rules on unnecessary,
irregular or unconscionable expenses, under
1987 Constitution.
Qualifications
1. Natural-born
2. at least 35 years old
3. CPAs with not less than 10 years of
auditing experience OR members of the
Philippine Bar with at least 10 years practice
of law
4. not have been candidates in the election
immediately preceding the appointment
5. no time shall ALL members belong to
the same profession
Term
- Appointed by the President with the
consent
of
the
Commission
on
Appointments
- Term of 7 years, without reappointment
Powers and Duties
1. Examine, audit and settle all accounts
pertaining to the revenue and receipts of,
and expenditures or uses of funds and
property owned or held in trust or pertaining
to the Government
2. Keep the general accounts of
Government and preserve vouchers and
supporting papers for such period as
provided by law
3. authority to define the scope of its audit
and examination, establish techniques and
methods required therefore
4. Promulgate accounting and auditing
rules and regulations, including those for the
prevention and disallowance of irregular,
unnecessary, expensive, extravagant or
unconscionable expenditures or uses of
government funds or property
78
THE SANDIGANBAYAN
Anti-graft court
Composition
1 Presiding Justice
8 Associate Justices
With the rank of the Justice of the CA
Sits in 3 divisions of 3 members each
Jurisdiction
Following must concur:
1. violation of RA 3019, RA 1379, Chapter
2 Section 2 Title 7 Book II of RPC, Eos 1, 2,
14 and 14-A or other offenses of felonies
whether simple or complexed with other
crimes;
2. offender is public official or employees
holding any of the positions enumerated in
par a Sec 4 RA 8249; and
3. offenses committed in relation to the
office
Decision/Review
Unanimous vote of all 3 members
required for the pronouncement of judgment
by a division.
Decisions of the Sandiganbayan shall be
reviewable by the SC on petition for
certiorari
80
Fiscal Autonomy
Disqualifications/Inhibitions During their
tenure shall:
1) Not hold any other office or employment
2) Not engage in the practice of any
profession or in the active management or
control of any business which may in any
way be affected by the functions of his
office
3) Not be financially interested, directly or
indirectly, in any contract with, or in any
franchise or privilege granted by the
Government
4) Not be qualified to run for any office in
the election immediately succeeding their
cessation from office
THE OMBUDSMAN
Tanodbayan
Composition
One overall Deputy
At least one deputy for Luzon, Visayas
and Mindanao
Separate deputy for the military
establishment may likewise be appointed
Qualifications
1) Natural-born
2) At least 40 years of age
3) Recognized probity and independence
4) Members of the Philippines Bar
5) Must not have been candidates for any
elective office in the immediately preceding
election
6) Ombudsman must have been a judge or
engaged in the practice of law for 10 years
or more
82
Ill-gotten Wealth
Right of the State to recover properties
unlawfully acquired by public officials or
employees, from them or from their
nominees or transferees, shall not be barred
by prescription, laches or estoppel.
Applies only to civil actions for recovery
of ill-gotten wealth and not to criminal
cases.
Restriction on Loans
No loan, guaranty or other form of
financial accommodation for any business
purpose may be granted directly or
indirectly by any government owned or
controlled bank or financial institution to
(during their tenure):
1) President
2) VP
3) Members of the Cabinet
4) Congress
5) SC
6) ConCom
7) Ombudsman
8) Any firm or entity in which they have
controlling interest
ECONOMY
AND
Goals
1. equitable distribution of opportunities,
income and wealth
2. sustained increase in amount of goods
and services, produced by the nation for the
benefit of the people
3. expanding productions as the key to
raising the quality of life
For attainment of these goals, the State shall:
Promote industrialization and full
employment based on sound agricultural
development and agrarian reform, through
industries that make full and efficient use of
human and natural resources and which are
competitive in both domestic and foreign
markets.
State shall protect Filipino enterprises
from unfair competition and trade practices.
83
Natural Resources
All lands of public domain, waters,
mineral, coal, petroleum and other mineral
oils, all forces of potential energy, fisheries,
forests or timber, wildlife, flora and fauna
and other natural resources are owned by the
State.
With the exception of agricultural lands,
all other natural resources shall not be
alienated.
Regalian Doctrine: all agricultural,
timber and mineral lands are subject to the
dominion of the State.
Before any land may be classified from
the forest group and converted into alienable
or disposable land from agricultural or other
purposes, there must be positive act from the
Government.
Absence of proof that property is
privately owned, the presumption is that it
belongs to the State.
Any possession, no matter how lengthy,
cannot ripen into ownership. And all lands
not otherwise appearing to be clearly within
private ownership are presumed to belong to
the State.
Tasks of administering and disposing
lands of public domain belongs to the
Director of Lands and ultimately the
Secretary of DENR.
The classification of public lands is an
exclusive prerogative of the Executive
Department through the Office of the
President. In the absence of classification,
the land remains unclassified public land
until released and rendered open for
disposition.
Forest land is not capable of private
appropriation and occupation in the absence
of a positive act of the Government
declassifying it into alienable and
disposable.
Private Lands
- Private lands shall be transferred or
conveyed to individuals, corporations or
associations qualified to acquire or hold
lands of the public domain.
- Exception: in cases of hereditary
succession
- Any sale or transfer in violation of the
prohibition is null and void.
- Being an alien, disqualified from
acquiring and owning real property.
Neither can petitioner recover the money
he had spent for the purchase.
Equity, as a rule, will follow the law, and
will not permit to be done indirectly that
which, because of public policy, cannot be
done directly.
- Action to recover the property sold filed
by the former owner will lie, the pari delicto
ruling having been abandoned.
- The lease for 99 years with a 50-year
option to purchase the property if and when
Wong Heng would be naturalized is a virtual
surrender of all rights incident to ownership
and therefore invalid. (PNB vs. Lui She)
- Land tenure is not indispensable to the
free exercise of religious profession and
worship.
A religious corporation, controlled by
non-Filipinos, cannot acquire and own lands
even for a religious use or purpose.
87
Monopolies
- Policy: the State shall regulate or
prohibit monopolies when the public interest
so requires. No combinations in restraint of
trade or unfair competition shall be allowed.
88
1. security of tenure
2. humane conditions of work
3. living wage
- They shall also participate in policy and
decision-making processes affecting their
rights and benefits as may be provided by
law.
- The State shall promote the principle of
shared responsibility between the workers
and employers and the preferential use of
voluntary modes in settling disputes,
including conciliation and shall enforce their
mutual compliance to foster industrial peace.
- The State shall regulate the relations
between
workers
and
employers,
recognizing the
1. right of labor to its just share in the fruits
of production and
2. the right of enterprises to reasonable
returns on investments and to expansion and
growth.
Labor
- The State shall afford full protection to
labor, local and overseas, organized and
unorganized, and promote full employment
and equality of employment opportunities
for all.
- It shall guarantee the rights of all
workers to:
1. self-organization
2. collective bargaining and negotiations
3. peaceful concerted activities, including
the right to strike in accordance with law
- They shall be entitled to:
89
Human Rights
The Commission on Human Rights
Composition
1. Chairman
2. 4 Members
Qualifications
1. natural-born
2. majority of whom shall be members of
the Bar
90
91
Two Views:
1. from the standpoint if the educational
institution
determine:
1. who may teach
2. what may be taught
3. how it shall be taught
4. who may be admitted to study
Freedom to determine whom to admit
includes the right to determine whom to
exclude or expel, as well as to impose lesser
sanctions such as suspension.
Right to freely choose their field of
study subject to existing curricula, and to
continue their course therein up to
graduation, such right is subject to
established academic and disciplinary
standards laid down by the academic
institution.
2. from the standpoint of the members of
the academe
freedom of the teacher or research
worker in higher institutions of learning to
investigate and discuss the problems of his
science and to express conclusions, whether
through publication or in the instruction of
students, without interference from political
or ecclesiastical authority, or from the
administrative officials of the institution in
which he is employed, unless the methods
are found to be incompetent or contrary to
professional ethics.
Widest latitude to innovate and
experiment on the method of teaching which
is most fitting to his students, subject only to
the rules and policies of the University.
Limitations
1. dominant police power of the State
2. social interests of the community
Termination of Contract theory in
Alcauz can no longer be used as a valid
ground to deny readmission or re-enrollment
to students who had led or participated in
student mass actions against the school. The
students do not shed their constitutionally-
Language
National language Filipino
Purpose
of
communication
and
instruction Filipino, and until otherwise
provided by law, English
Regional languages auxiliary official
languages in the regions and shall serve as
ancillary media of instruction
Spanish and Arabic promoted on
voluntary and optional basis
Constitution shall be promulgated in
Filipino and English and shall be translated
into major regional languages, Arabic and
Spanish.
XVII. THE FAMILY
XVII. GENERAL PROVISIONS
Flag
Red, white and blue
A sun and 3 stars
As consecrated and honored by the
people and recognized by law.
Name
Congress may, by law, adopt:
a new name for the country
a national anthem or
a national seal
which shall be truly reflective and
symbolic of the ideals, history, and traditions
of the people.
Law shall take effect only upon its
ratification by the people in a national
referendum.
93
Only
FILIPINO
CITIZENS
or
CORPORATIONS or ASSOCIATIONS at
least 70% FILIPINO-OWNED shall be
allowed to engage in the advertising
industry.
ALL EXECUTIVES and MANAGING
OFFICERS of such entities must be
CITIZENS of the Philippines.
Advertising entities affected shall have 5
years from the ratification of the
Constitution to comply on GRADUATED
and PROPORTIONATE basis with the
minimum Filipino ownership.
Sequestration
- Authority to issue sequestration or freeze
order relative to the recovery of ill-gotten
wealth shall remain operative for not more
than 18 months after the ratification of this
Constitution. Congress may extend such
period.
- Sequestration or freeze orders shall be
issued upon showing of a prima facie case.
- The corresponding judicial action shall
be filed within 6 months from ratification of
this Constitution, or, if issued after
ratification within 6 months from such issue.
- The order is deemed automatically lifted
if no judicial action or proceeding is
commenced.
- No particular description or specification
of the kind or character of judicial action or
proceeding much less an explicit
requirement for the impleading of the
94
95
GENERAL PRINCIPLES
Principles of Local Autonomy
Constitutional Provisions
The State shall ensure the local
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
iperio.
Autonomy is either:
1. decentralization of administration
no valid constitutional challenge
Corporation
Artificial being created by operation of
law, having the right of succession and the
powers, attributes and properties expressly
authorized by law or incident to its
existence.
Classification
96
Criterion
to
determine
whether
corporation is public
Relationship of the corporation to the
State; if it is created by the State as its own
agency to help the State in carrying out its
governmental function then it is public.
Otherwise, it is private.
Provinces
Cluster
of
municipalities
or
municipalities and component cities.
Dynamic mechanism for developmental
processes and effective governance of LGUs
within its territorial jurisdiction.
City
More
urbanized
and
developed
barangays
General purpose government for the
coordination and delivery of basic, regular
and direct services.
Effective governance of the inhabitants
within its jurisdiction.
Muncipality
Group of barangays
General purpose government for the
coordination and delivery of basic, regular
and direct services.
Effective governance of the inhabitant
within its jurisdiction.
Barangay
Basic political unit
Municipal Corporation
Elements:
1. Legal creation or incorporation
Law creating or authorizing the creation
or incorporation of a municipal corporation.
2. Corporate name
Sanggunian Panlalawigan may change
the name of component cities or
municipalities:
1. consultation with Philippine Historical
Institute
2. effective upon ratification in a plebiscite
3. Inhabitants
People residing in the territory.
4. Territory
Land mass where the inhabitants reside
Together with external and internal
waters and the airspace above.
Dual Nature and Functions
Exercise powers as a political
subdivision of the National Government and
97
2. ordinance
passed by Sangguniang
Panlalawigan or Sangguniang Panlungsod
barangay
Requisites/Limitation on Creation or
Conversion
No province, city, municipality or
barangay may be created, divided, merged,
abolished or its boundary substantially
altered, EXCEPT
1. in accordance with criteria established in
the LGC
2. subject to approval by a majority of the
votes cast in a plebiscite in the political units
directly affected
Plebiscite Requirement: conducted by
the COMELEC within 120 days from the
date of effectivity of the law or ordinance
effecting such action, unless said law or
ordinance fixes another date.
Plebiscite for creating a new province
should include the participation of the
residents of the mother province in order to
conform to the constitutional requirement.
Where the law authorizing the holding of
a plebiscite is unconstitutional, the Court
cannot authorize the holding of a new one.
The fact that the plebiscite which the
petition sought to stop had already been held
and officials of the new province appointed
does not make the petition moot and
academic, as the petition raises an issue of
constitutional dimensions.
Section 7, RA 7160 verifiable
indicators of viability and projected capacity
to provide services:
1. Income
Sufficient, based on acceptable standards
To provide for all essential government
facilities and services and special functions
Commensurate with the size of its
population
Average annual income for the last 2
consecutive years based on 1991 constant
prices:
98
1. Municipality: 2,500,000
2. City 100,000,000
3. Highly Urbanized City: 50,000,000
4. Province: 20,000,000
Internal Revenue Allotment should be
included in the computation of the average
annual income of the municipality. (for
purposes of determining whether the
municipality may be validly converted into a
city)
For
conversion
to
cities,
the
municipalitys income should not include
the IRA.
2. Population
Total number of inhabitants within the
territorial jurisdiction of the LGU
concerned.
Required minimum population:
1. Barangay: 2,000 inhabitants; except in
Metro Manila and other metropolitan
political subdivisions or in highly urbanized
cities where the requirement is 5,000
inhabitants
2. Municipality: 25,000
3. City: 150,000
4. Highly Urbanized City: 200,000
5. Province: 250,000
3. Land Area
Contiguous, unless it comprises 2 or
more islands or is separated by a LGU
independent of the others
Properly identified by metes and bounds
with technical descriptions
Sufficient to provide for such basic
services and facilities to meet the
requirements of its populace.
Area Requirements:
1. Municipality: 50 sq. kms.
2. City: 100 sq. kms.
3. Province: 2,000 sq. kms.
Compliance
with
the
foregoing
indicators shall be attested to by the
Department of Finance, the National
Statistics Office and the Lands Management
Bureau of the Department of Environment
and Natural Resources.
1.
2.
it
3.
4.
Rules of Interpretation
1. Any provision on a power of a LGU
shall be liberally interpreted in its favor; in
case of doubt, any question shall be resolved
in favor of devolution of power.
2. Any tax ordinance or revenue measure
shall be construed strictly against the LGU
enacting it and liberally in favor if the
taxpayer.
3. Any tax exemption, incentive or relief
granted by any LGU shall be construed
strictly against the person claiming it.
4. The general welfare provision shall be
liberally interpreted to give more powers to
LGUs
in
accelerating
economic
development and upgrading the quality of
life for the people in the community.
5. Rights and obligations existing on the
date of effectivity of this Code and arising
out of contracts or any other source of
prestation involving a LGU shall be
governed by the original terms and
conditions of said contracts or the law force
at the time of such rights were vested.
6. In the resolution of controversies arising
under this Code where no legal provision of
jurisprudence applies, resort may be had to
the customs and traditions in the place
where the controversies take place.
II.
GENERAL
POWERS
AND
ATTRIBUTES
OF
LOCAL
GOVERNMENT UNITS
Powers in General
Sources
1. Philippine Constitution
2. Statutes
3. Charter
4. Doctrine of the right of self-government
Classification
1. express, implied, inherent
100
2. public, governmental,
proprietary
3. intramural, extramural
4. mandatory,
directory,
discretionary
private
or
ministerial,
Execution of powers
1. statute prescribes the manner of exercise
the procedure must be followed
2. statute is silent LGUs have discretion
to select reasonable means and methods of
exercise
Governmental Powers
1. General Welfare
2. Basic Services and Facilities
3. Power to Generate and Apply Resources
4. Eminent Domain
5. Reclassification of Lands
6. Closure and Opening of Roads
7. Local Legislative Power
8. Authority over Police Units
General Welfare
Exercise powers expressly granted,
necessarily implied, and powers necessary,
appropriate or incidental for its efficient and
effective governance and those which are
essential to the promotion of the general
welfare
w/ respective territorial jurisdiction,
1. preservation and enrichment of culture
2. promote health and safety
3. enhance the right of the people to a
balanced ecology
4. encourage and support the development
of appropriate and self-reliant scientific and
technological capabilities
5. improve public morals
6. enhance economic prosperity and social
justice
7. promote full employment among its
residents
8. maintain peace and order
9. preserve the comfort and convenience of
their inhabitants
101
102
103
- Additional Limitations
1. exercised by local chief executive,
pursuant to VALID ordinance
2. public use or purpose or welfare, for the
benefit of the poor and landless
3. after valid and definite offer has been
made to and not accepted by the owner
- Power of eminent domain is expressly
granted to the municipality under the LGC
- What is required by law is an
ORDINANCE, not a resolution.
Ordinance is a law while a resolution is
merely a declaration of sentiment or opinion
of a law-making body on a specific matter
3rd reading is needed for an ordinance,
not for a resolution unless decided otherwise
by a majority of the members of the
Sanggunian
Reclassification of Lands
- City/municipality through ordinance
passed after conducting public hearings
- Authorize reclassification of agricultural
lands
- And provide for the manner of their
utilization/disposition
- Grounds:
1. land ceases to be economically feasible
and sound for agricultural purposes as
determined by Department of Agriculture
2. land shall have substantially greater
economic value for residential, commercial
or industrial purposes, as determined by the
sanggunian
- Reclassification shall be limited to the
following percentage of the total agricultural
land area at the time of the passage of the
ordinance:
1. highly urbanized cities and independent
component cities: 15%
2. component cities and 1st to 3rd class
municipalities: 10%
3. 4th to 6th class of municipalities: 5%
Provided that agricultural land distributed to
land reform beneficiaries shall not be
affected by such reclassification.
104
105
Corporate Powers
- LGUs shall enjoy full autonomy in the
exercise of their proprietary functions and in
the management of their economic
enterprises
107
108
2. Practice of Profession
1. GOVERNORS, CITY and MUNICIPAL
MAYORS are prohibited from practicing
their profession or engaging in any
occupation other than the exercise of their
function.
2. SANGGUNIAN
MEMBERS
may
practice their profession, engage in any
occupation, or teach in schools EXCEPT
during session hours.
Provide that those who are also
MEMBERS of the BAR shall NOT:
1. appear as counsel before any court in
any civil case wherein the LGU is the
adverse party
2. appear as counsel in any criminal case
wherein an officer or EE of the national or
local government is accused of an offense
committed in relation to his office
3. collect any fee for their appearance in
administrative proceedings involving the
LGU
4. use property and personnel of the
government except when the sanggunian
member is defending the interest of the
government.
Date of Election
Every 3 years
2nd Monday of may
Unless otherwise provided by law
Term of Office
3 years starting from noon of June 30,
1992 OR such date as may be provided by
law
Except that of barangay official
No elective local official shall serve for
more than 3 consecutive terms in the same
position
Term of barangay officials and members
of the sangguniang kabataan 5 years
ELECTIVE
LOCAL
OFFICIAL
removed via administrative case before
January 1, 1992 (date of effectivity of the
LGC) is NOT disqualified.
Manner of Election
1. Governor, Vice-Governor, City or
Municipal Mayor, City or Municipal ViceMayor and Punong Barangay elected at
large
2. Sangguniang Kabataan Chairman
elected by registered voters of the katipunan
ng kabataan
3. Regular Members of the Sangguniang
Panlalawigan, Panlungsod and Bayan
elected by district.
4. Presidents of the leagues of Sangguinang
Members of component cities and
Rules on Succession
- Permanent vacancies:
1. fills a higher vacant office
2. refuses to assume office
3. fails to qualify
4. dies
5. removed from office
6. voluntarily resigns
7. permanently incapacitated to discharge
the functions
a. Governor/Mayor
ViceGovernor/Vice-Mayor
b. Vice-Governor/Vice-Mayor highest
ranking sanggunian member OR 2nd highest
ranking, and subsequent vacancies shall be
filled automatically by the other sanggunian
members according to their ranking
Ranking in the sanggunian member shall
be determined on the basis of the proportion
of votes obtained by each winning candidate
to the total number of registered voters in
each district in the immediately preceding
election.
Mode of succession for permanent
vacancies may also be applied in cases of
temporary vacancies.
c. Punong Barangay highest ranking
sanggunian barangay member OR 2nd
highest
Tie between or among the highest
ranking sanggunian members shall be
resolved by drawing lots.
d. Sanggunian member where automatic
succession do not apply:
1. appointment by PRESIDENT, through
Executive Secretary in the case of
Sangguniang Panlalawigan or Panlungsod of
111
6. permanently incapacitated
7. removed from office
8. has been absent without leave for more
than 3 consecutive months
* ineligibility is not one of the causes
enumerated in LGC
Temporary Vacancies
Governor/City
or
Muncipal
Mayor/Punong Barangay is temporarily
incapacitated, due to but not limited to:
1. leave of absence
2. travel abroad
3. suspension from office
Resignation
- deemed effective upon acceptance by the
ff:
1. President
112
Grievance Procedure
- Local chief executive shall establish
procedure
PROVINCIAL/HIGHLY
URBANIZED
CITY OR INDEPENDENT COMPONENT
CITY ELECTIVE OFFICIAL FILED
BEFORE OFFICE OF THE PRESIDENT
Discipline
Grounds
disciplined/suspended/removed
1. Disloyalty to the Philippines
2. Culpable violation of the Constitution
3. Dishonesty, oppression, misconduct in
office, gross negligence, or dereliction of
duty
- Acts of lasciviousness cannot be
considered misconduct; to constitute a
ground for disciplinary action, official
charged with the offense must be convicted
in the criminal action
4. Commission of any offense involving
moral turpitude or an offense punishable by
at least prision mayor
5. abuse of authority
6. unauthorized absence of 15 consecutive
working days except in the case of members
of
the
sangguniang
panlalawigan,
panlungsod, bayan and barangay
7. application for, or acquisition of, foreign
citizenship or residence or the status of an
immigrant of another country
8. other grounds as may be provided in this
code and other laws
113
Effect of Re-election
- Bars continuation of administrative case
against him
- Re-election is tantamount to condonation
by the people
Appointive Local Officials
Responsibility for human resources and
development
- Local chief executive
- May employ emergency or casual
employees or laborers paid on daily wage or
piecework basis and hired through job
orders for local projects authorized by
sanggunian, without need of approval from
CSC
- Said employment shall not exceed 6
months.
Penalty
- Penalty of suspension shall not exceed
his unexpired term or a period of 6 months
for every administrative offense
- Nor shall penalty be a bar to candidacy
as long as he meets requirements
- Penalty of removal from office as a
result of an administrative case shall be a bar
to the candidacy for any elective office.
- Not more than 6 months for each
offense; provide, the total does not exceed
the unexpired portion of his term
Officials
Common
to
Municipalities/Cities/Provinces
1. Secretary to the Sanggunian
114
all
2. Treasurer
3. Assessor
4. Accountant
5. Budget Officer
6. Planning and Development Coordinator
7. Engineer
8. Health Officer
9. Civil Registrar
10. Administrator
11. Legal Officer
12. Agriculturist
13. Social Welfare and Development Officer
14. Environment and Natural Resources
Officer
15. Architect
16. Information Officer
17. Cooperatives Officer
18. Population Officer
19. Veterinarian
20. General Services Officer
1. removal
2. demotion in rank
3. suspension for not more than 1 year
without pay
4. fine in an amount not exceeding 6
months salary
5. reprimand
- If penalty is suspension without pay for
not more than 30 days, decision shall be
final.
- If heavier, appealable to CSC which
shall decide the appeal within 30 days from
receipt.
National Government
Power of General Supervision
- President over LGUs
- Supervisory authority directly over
provinces, highly urbanized cities and
independent component cities.
- Through the Province with respect to
component cities and municipalities
- Through City and Municipality with
respect to barangays
115
Non-Governmental
116
INITIATIVE
AND
Local Initiative
It is the legal process whereby the
registered voters of a local government unit
may directly propose, enact or amend any
ordinance.
It may be exercised by all registered
voters.
Procedure
1. Petition filed with the sanggunian
proposing the adoption, enactment, repeal or
amendment of an ordinance
Not less than 2,000 registered voters in
the region
Not less than 1,000 registered voters in
cases of provinces and cities
Not less than 100 voters in case of
municipalities
117
Limitations
On Local Initiative
1. not be exercised more than once a year
2. extend only to subjects or matters which
are within the legal powers of the
sanggunian to enact
3. at any time before the initiative is held,
the sanggunian adopts in toto the proposition
presented and the local chief executive
approves the same, the initiative shall be
cancelled. However, those against such
action may apply for initiative.
The Barangay
Chief Officials and Offices
There shall be in each barangay:
1. PUNONG BARANGAY
2. 7
SANGGUNIANG
BARANGAY
MEMBERS
3. The SANGGUNIANG KABATAAN
CHAIRMAN
4. BARANGAY SECRETARY
5. BARANGAY TREASURER
6. LUPONG TAGAPAMAYAPA
On the Sanggunian
Any proposition or ordinance approved
through an initiative and referendum shall
not be repealed, modified or amended by the
sanggunian w/in 6 months from date of
approval.
Amended, modified or repealed w/in 3
years by a vote of all its members.
In case of barangays, the period shall be
18 months after the approval.
Local Referendum
Legal process whereby the registered
voters of the LGUs may approve, amend or
reject any ordinance enacted by the
sanggunian.
The local referendum shall be held under
the control and direction of the COMELEC:
1. w/in 60 days in case of provinces
2. w/in 45 days in case of municipalities
3. w/in 30 days in case of barangays
COMELEC shall certify and proclaim
the results of the said referendum.
Authority of Courts
Nothing shall preclude the proper courts
from declaring null and void any proposition
approved pursuant for violation of the
3. arbitration
4. effects of settlement and arbitration
award
Sangguniang Kabataan
- Creation: There shall be in every
barangay a Sangguniang Kabataan
1. a Chairman
2. 7 Members
3. a secretary
4. a treasurer
- An official who, during his term of
office, shall have passed the age of 21 shall
be allowed to serve the remaining portion of
the term for which he was elected.
Katarungang Pambarangay
Lupong Tagapamayapa
Punong barangay as chairman
10 to 20 members
Constituted every 3 years
Katipunan ng Kabataan
Shall be composed of:
1. all citizens of the Philippines actually
residing in the barangay for at least 6
months
2. who are 15 but not more than 21 years of
age
3. duly registered in the list of the
sangguniang kabataan or in the official
barangay list in the custody of the barangay
secretary.
It shall meet once every 3 month, or at
the call of the sangguniang kabataan
chairman, or upon written petition of at least
1/20 of its members.
panlalawigang
pederasyon
4. special
metropolitan
political
subdivision
pangmetropolitang
pederasyon
5. on national level pambansang
pederasyon
Leagues
of
Local
Government
Units/Officials
- Liga ng mga Barangay
Organization of all the barangays for the
primary purpose of determining the
representation of the Liga in the sanggunians
And for ventilating, articulating and
crystallizing issues affecting barangay
government administration and securing,
through proper and legal means, solutions.
Liga is empowered to create such other
positions as may be deemed necessary.
o MR is a prohibited pleading.
o COMELEC cannot deprive RTC of its
competence to order EXECUTION of its
decision PENDING APPEAL, being a
judicial prerogative and there being no law
disauthorizing the same.
o In the exercise of its exclusive appellate
jurisdiction, COMELEC has the power to
issue writs of prohibition, mandamus or
certiorari.
In the absence of any express provision,
RTC, a court of general jurisdiction, has
jurisdiction over controversies involving
election of members of the Sangguniang
Kabataan.
Decision in appealed cases involving
elective municipal and barangay officials
raised to SC via SCA for certiorari on the
ground that COMELECs factual finding is
marred by grave abuse of discretion.
Review of a decision of the Electoral
Tribunal is possible only in the exercise of
supervisory or extraordinary jurisdiction,
and only upon showing that the Tribunals
error results from whimsical, capricious,
unwarranted, arbitrary or despotic exercise
of power.
Purposes of election contests cognizable
by Electoral Tribunal HRET rules of
procedure prevail over provisions of the
Omnibus Election Code
League of Municipalities
Organized for the primary purpose of
ventilating, articulating and crystallizing
issues affecting municipal government
administration, and securing through proper
and legal means, solutions.
XII. ELECTION CONTESTS
Jurisdiction over Election Contests
Original and Exclusive
1. President/VP
SC
2. Senator
Senate ET
3. Representative
HRET
4. Regional/Provincial/City COMELEC
5. Municipal
RTC
6. Barangay
MTC/MeTC
Appellate
Decision
of RTC/MTC/MeTC =
exclusively to COMELEC, whose decision
shall be final, executory and unappealable.
Election Contests for Municipal Offices:
o Filed with RTC shall be decided
expeditiously.
o Decision may be appealed to
COMELEC w/in 5 days from promulgation
or receipt of copy by the aggrieved party.
o COMELEC shall decide appeal within
60 days after it is submitted for decision, but
not later than 6 months after the filing of the
appeal, which decision shall be final,
executory and unappealable.
120
in
1. Elective Office
- Issue is the eligibility of the officer-elect
- Court/tribunal cannot declare protestant
or the candidate who obtained the 2nd highest
number of votes as having been elected.
There must be a final judgment of
disqualification before the election in order
that the votes of the disqualified candidate
can be considered stray.
In voting for a candidate who has not
been disqualified by final judgment during
election day, the people voted for him bona
fide, without any intention to misapply their
franchise and in the honest belief that the
candidate was then qualified to be the
person to whom they would entrust the
exercise of the power s of government.
2. Appointive Office
- Issue is the legality of the appointment
- The court determined who of the parties
has legal title to the office
Contest
Involving title or claim of title to an
elective office, made before or after
proclamation of the winner, whether or not
the contestant is claiming the office in
dispute.
Election, Returns and Qualifications
Collectively, all matters affecting the
validity of the contestees title to the
position
Election
Conduct of the polls
Includes
1. listing of votes
2. holding of election campaign
3. casting of votes
4. counting of votes
Returns
Includes:
1. canvass of returns
122
2. proclamation of winners
3. questions concerning composition of
Board of Canvassers
4. authenticity of elections returns
Qualifications
may be raised in quo-warranto
proceeding against proclaimed winner
XIII. ELECTION OFFENSES
Prohibited Acts
1. Vote-buying and vote-selling
o Distribution of yosi (People vs. Ferrer)
2. Wagering upon the result of the elections
o Bet or wager forfeited to Government
3. Threats, intimidation, terrorism, use of
fraudulent device or other forms of coercion
4. Appointment of new employee
o Exception:
a. In case of urgent need
b. w/ notice given to COMELEC
c. w/in 3 days from appointment
o Includes creation of new positions,
promotion or granting of salary increase.
5. Carrying of deadly weapon within a
radius of 100 meters from precint
o Not necessary that deadly weapon be
seized from the accused.
6. Transfer or detail of government
official/employee
without
COMELEC
approval
o Exception: not penalized, if done to
promote efficiency.
o To prove violation:
a. Fact of transfer or detail within the
election period as fixed by the COMELEC
b. Transfer or detail was made without
prior approval of the COMELEC
Kinds
1. Statutes
123
Administration
1. as a Function the execution, in nonjudicial matters, of the law or will of the
State as expressed by competent authority
2. as an Organization group or aggregate
of persons in whose hand the reins of
government are for the time being.
OF
ADMINSITRATIVE
Kinds
1. Internal legal side of public
administration
2. External deals with problems of
government regulation
Administrative Bodies or Agencies
- Organ of government which affects the
rights of private parties either through
adjudication or rule-making.
- Creation
1. constitutional provision
2. legislative enactment
3. authority of law
- Criterion
primarily regulatory
on its rule-making authority it is
administrative when it does not have
discretion to determine what the law shall be
but merely prescribes details for the
enforcement of the law.
- Types
1. offering some gratuity, grant or special
privilege
2. carry on certain of the actual business of
the government
3. performing some business service for the
public
4. regulate business affected with public
interest
5. regulate
private
business
and
individuals, pursuant to police power
6. adjust individual controversies because
of strong social policy involved
124
administrative
125
Determinative Powers
1. Directing
Power of assessment of BIR and
Customs
2. Enabling
Permit or to allow something which the
law undertakes to regulate
3. Dispensing
To exempt from a general prohibition
OR
Relieve individual or corporation from
an affirmative duty
4. Examining
Investigatory power
1. production of books, papers, etc.
2. attendance of witnesses
3. compelling their testimony
Power to compel attendance of witnesses
not inherent in administrative body
But an administrative officer authorized
to take testimony or evidence is deemed
authorized to administer oath, summon
witnesses, require production of documents,
etc.
Power to punish contempt must be
expressly granted to the administrative
body; when granted, may be exercised only
when administrative body is actually
performing quasi-judicial functions
5. Summary
Power to apply compulsion or force
against persons or property to effectuate a
legal purpose without a judicial warrant to
authorize such action
126
Administrative
Determinations
where
Notice and Hearing are NOT necessary for
due process
1. grant of provisional authority for
increased rates or to engage in a particular
line of business
2. summary proceedings of distraint and
levy upon the property of a delinquent
taxpayer
3. cancellation of passport, no abuse of
discretion
4. summary abatement of a nuisance per se
which affects the immediate safety of
persons/property
5. preventive suspension of a public
officer/employee pending investigation of
administrative charges
127
Corollary Principle
1. Doctrine of Prior Resort/ Doctrine of
Primary Administrative Jurisdiction
No Where there is competence or
jurisdiction vested upon an administrative
body to act upon a matter, no resort to the
courts may be made before such
administrative body shall have acted upon
the matter.
Conversion of subdivision lots
HLURB
Enforcement of forestry laws DENR
Issuing license to radio stations NTC
Disputes arising from construction
contracts Construction Industry Arbitrary
Commission
Agricultural lands under the coverage of
CARP DAR
Effluents of a particular industrial
establishment Pollution Adjudication
Board
OF
Doctrine
- Whenever there is an available
administrative remedy provided by law, no
judicial recourse can be made until all such
remedies have been availed of and
exhausted.
Reasons
1. if relief is first sought from a superior
administrative agency, resort to courts may
be unnecessary
2. administrative agency should be given a
chance to correct its error
3. principles of comity and convenience
4. judicial review of administrative
decisions is usually made through special
civil actins, which will not normally prosper
128
conclusion
before
intervention.
seeking
judicial
Bases for Judicial Review
Unless otherwise provided by this
Constitution or by law
Any decision, order or ruling of each
Commission may be brought to the SC on
certiorari
w/in 30 days from receipt of a copy
General Principles
underlying power in the Courts to
scrutinize the acts of administrative agencies
on questions of law and jurisdiction
although no right of review is given by
statute.
Keep administrative agencies within its
jurisdiction.
Protect substantial rights of parties
affected by the decisions.
Part of system of checks and balances
which restricts the separation of power and
forestalls arbitrary and unjust adjudication.
Exceptions
1. Doctrine of Qualified Political Agency
(alter ego doctrine)
2. Administrative remedy is fruitless
3. Estoppel on the part of the
Administrative Agency
4. Issue involved is purely a legal
question
5. Administrative action is patently illegal
6. Unreasonable delay or official inaction
7. Irreparable injury or threat, unless
judicial recourse is immediately made
8. Land cases, where subject matter is
private land
9. Law does not make exhaustion a
condition precedent to judicial recourse
10. Observance of the doctrine will result in
the nullification of the claim
11. Special reasons or circumstances
demanding immediate court action
12. Due process of law is clearly violated
13. Rules does not provide a plain, speedy
and adequate remedy
IV.
JUDICIAL
REVIEW
ADMINISTRATIVE DECISIONS
OF
Rule
Judicial review may be granted or
withheld as Congress chooses
Except: when Constitution requires or
allows it
Judicial review of administrative
decisions cannot be denied the courts when
there is an allegation of grave abuse of
discretion.
129
I. GENERAL PRINCIPLES
Public Office
- Right, authority, duty, created and
conferred by law, by which for a given
period, either fixed by law or enduring at the
130
AND
Qualifications
2 Different Senses:
1. endowments, qualities, attributes which
make an individual eligible for public office
must possess at the time of the
appointment/election and continuously for
as long as the official relationship exists
2. act of entering into the performance of
the functions of public office
Public Officer
- a person who holds office
- Public Officer, as understood under
criminal law
Article 203. any person who, by direct
provision of law, popular election or
appointment by competent authority shall
take part in the performance of public
functions in the Government; or shall
perform in said Government public duties as
am employee, agent, or subordinate official
of any rank or class, shall be deemed to be a
public officer.
RA 3019. includes elective and
appointive
officials
and
employees,
permanent or temporary whether in the
classified, unclassified or exempt services,
receiving compensation, even nominal from
the government.
PB 807. Career and Non-career services
(formerly, classified, unclassified or exempt)
131
Office of Ombudsman
Secretaries
Undersecretaries
Chairmen/heads
Legal Effect
- Those that affect the public are valid,
binding and with full legal effect.
- For the protection of the public.
Commission
- written evidence of appointment
Elements
1. validly existing public office
2. actual physical possession of said office
3. color of title to the office
a. by reputation/acquiescence
b. known and valid appointment/election
but officer failed to conform to a
requirement imposed by law
c. known appointment or election, void
(though unknown to public) because:
i. ineligibility of officer
ii. want of authority of appointing/electing
authority
iii. irregularity in appointment/election
d. known appointment/election pursuant to
unconstitutional law, before law was
declared unconstitutional.
Designation
- imposition of additional duties
Classification
1) Permanent
- Extended to person possessing the
requisite qualifications
- Security of tenure
2) Temporary
- Acting appointment
- May not possess the requisite
qualifications for eligibility
- Revocable at will, without necessity of
just cause or a valid investigation
- Acquisition of the appropriate civil
service eligibility by a temporary appointee
will not ipso facto convert the temporary
appointment into a permanent one; new
appointment is necessary
- Appointment to a position in the Career
Service of the Civil Service does not
Entitlement of Salaries
- GR: rightful incumbent of a public office
may recover from an officer de facto the
salary received by the latter during the time
of his wrongful tenure, even though he
133
AD-INTERIM Appointment
Nomination by President
Issuance of the Commission
Acceptance by the appointee
Confirmation by COA
4) Ad-interim
- Made while Congress is not in session,
before confirmation by the Commission on
Appointments, is immediately effective
- Ceases to be valid if disapproved or
bypassed by COA upon next adjournment of
Congress
- Permanent appointment
- That it is subject to confirmation, does
not alter its permanent character.
134
Jurisdiction
of
the
Civil
Service
Commission
Disciplinary cases
Cases involving personnel action
Employment status and qualification
standard
Recall an appointment initially approved
when issued with disregard to Civil
Service Laws, rules and regulations
Approving and reviewing appointments
to determine their compliance with the Civil
Service Law
On its own, does not have the authority
to terminate employment or drop members
from the roll
3. Non-Career Service
a. Description
- Entrance on bases other than those of the
usual tests utilized for the career service
- Tenure
5) limited to a period specified by law or
6) which is co-terminous with that of the
appointing authority or
7) subject of his pleasure or
8) which is limited to the duration of a
particular project for which purpose the
employment was made.
b. Includes:
1) Elective
officials,
personal
and
confidential staff
2) Department Heads and officials of
Cabinet rank who holds office at the
pleasure of the President, personal and
confidential staff
3) Chairmen
and
members
of
commissions/boards w/ fixed terms of
office, personal and confidential staff
4) Contractual personnel/ those whose
employment in government is in accordance
with a special contract to undertake a
specific work or job requiring special or
technical skills not available in employing
agency, to be accomplished within a period
not exceeding 1 year, under his own
responsibility, with minimum direction and
supervision
Requisites
1. made according to merit and fitness
2. competitive examination
Exceptions:
1. policy determining
2. primarily confidential or
3. highly technical
- In a department, appointing power is
vested in the DEPARTMENT SECRETARY,
although it may be delegated to the
REGIONAL DIRECTOR, subject to
approval of the Department Secretary.
- Principles
1) Classification of a particular position as
policy-determining, primarily confidential or
highly technical amounts to no more than an
executive or legislative declaration that is
136
1)
2)
3)
4)
5)
6)
7)
Promotion
Appointment through Certification
Transfer
Reinstatement
Detail
Reassignment
Reemployment
Promotion
- Movement from one position to another
with increased duties and responsibilities as
authorized by law
- Usually accompanied by an increase in
pay.
- Next-in-rank Rule
The one who is next in rank is given
preferential consideration
Does not mean that he alone can be
appointed
Appointing authority is required to state
the special reasons for not appointing the
officer next in rank.
- Automatic Reversion Rule
All appointments involved in a chain of
promotions
must
be
submitted
simultaneously for approval by the
Commission. The disapproval of the
appointment of a person proposed to a
higher position invalidates the promotion of
those in the lower positions and
automatically restores them to their former
positions. Affected persons are entitled to
payment of salaries for services rendered at
a rate fixed in their promotional
appointments.
Requisites:
1. series of promotions
2. all promotional appointments are
simultaneously
submitted
to
the
Commission for approval
3. Commission
disapproves
the
appointment of a person to a higher position
Appointment through Certification
- Exception:
1. Sabello vs. DECS considerations of
justice and equity
2. Garcia vs. Chairman, Commission on
Audit person given pardon because he did
not truly commit the offense; the pardon
relives him from all punitive consequences
of his criminal act thereby restoring him to
his clean name, good reputation and
unstained character prior to his finding of
guilt.
Transfer
- Movement from one position to another
which is of equivalent rank, level or salary
without break in service.
- May be imposed as an administrative
penalty.
- Unconsented transfer violates security of
tenure.
- Career Executive Service personnel can
be shifted from one office to another without
violating their right to security of tenure,
because salary and status is based on their
ranks and not on the positions to which they
are assigned.
Detail
- Movement of an employee from one
agency to another without the issuance of an
appointment
- Allowed only for a limited period of
time in the case of employees occupying
professional, technical and scientific
positions
- Temporary in nature
Reinstatement
- Has been permanently appointed in the
career service and who has, through no
delinquency of misconduct, been separated
may be reinstated to a position in the same
level for which he is qualified.
- Acquisition of civil service eligibility is
not the sole factor for the reappointment.
Other factors should be considered:
performance, degree of education, work
experience, training, seniority and enjoys
confidence and trust of the appointing
power.
- Not subject to application for a writ of
mandamus.
- Issuance of new appointment which is
discretionary
- Exercise of discretionary power cannot
be controlled by the courts, as long as
properly exercised
- Forfeited his right to public office
because of conviction of a crime, but was
extended plenary pardon CANNOT by
reason of pardon demand reinstatement as a
matter of right.
Reassignment
- Reassigned from one organizational unit
to another in the same agency
- Not involve reduction in rank, status or
salary
- Management prerogative vested in the
CSC, any department or agency embraced in
Civil Service
- Does not constitute removal without
cause
- Should have definite date and duration.
- Lack of specific duration is tantamount
to floating assignment thus a dimunition in
status or rank.
Reemployment
- Names of persons who have been
appointed permanently to positions in the
career service and who have been
SEPARATED as a result of REDUCTION in
force and/or REORGANIZATION, shall be
entered in a list from which selection for
reemployment shall be made
138
judicial
functions;
determination of a question of law; only one
way to be right
Discretion, may decide the question
either way and still be right; limited to the
evident purpose of the act
Prohibitions
1. Partisan political activity or taking part
in any election except to vote
Except:
1. those holding political offices
2. cabinet members
2. Additional or double compensation
3. Prohibition against loans
4. Limitation on laborers
Not assigned to clerical duties
5. Detail or reassignment
w/in 3 months before any election
without approval of COMELEC
6. Nepotism
Appointments made in favor of a relative
of the appointing or recommending
authority or of the chief of the bureau or
139
Liability on Contracts
personally entered
exceeded his authority
without
or
Statutory Liability
Article 27, CC refuses or neglects
without just cause to perform his official
duty, whereby a person suffers moral or
material loss; without prejudice to
administrative disciplinary sanction
Article 32, CC liability of public
officer for violation of constitutional rights
Article 34, CC liability of peace officer
who fails to respond or give assistance to
persons in danger of injury to life or
property
140
143
Resignation
Act of giving up or the act of a public
officer by which he declines his office and
renounces the further right to use it.
Intention to surrender, renounce, and
relinquish the office and the acceptance by
competent and lawful authority
Voluntariness when procured by fraud,
may be invalidated
Courtesy resignation lacks the element
of voluntariness and therefore is not a valid
resignation.
Need for Acceptance not complete
until accepted by competent authority
Article 238, RPC penalizes any public
officer who, before the acceptance of his
resignation, abandons his office to the
detriment of the public service.
If the public officer is mandated by law
to hold-over, the resignation, even if
accepted, will not be effective until after
appointment/election of his successor.
Accepting Authority RA 7160, officers
authorized to accept resignation:
1. President governor, vice-governor,
mayor and vice-mayor f highly urbanized
cities and independent component cities
2. Governor municipal mayors and vicemayors, city mayors and vice-mayors of
component cities
3. Sanggunian sanggunian members
4. City or municipal mayor barangay
officials
Resignation deemed accepted if not
acted upon w/in 15 days from receipt
Resignation by Sanggunian members
shall be deemed accepted upon:
1. presentation before an open session of
the sanggunian concerned
2. duly entered in its record
3. EXCEPT where sanggunian members
are subject to recall elections or to cases
144
145
municipalities
have
jurisdiction
to
investigate and decide matters involving
disciplinary action against officers and
employees under their jurisdiction.
Decision final in case the penalty
imposed is suspension of not more than 30
days or fine in an amount not exceeding 30
days salary.
Other cases, decision shall be initially
appealed to the department head and finally
to the Civil Service Commission and
pending appeal, shall be executory EXCEPT
when the penalty is removal, in which case
it shall be executory only after confirmation
by the department head.
Committee to hear administrative charge
against
public
school
teacher
and
and
146
Appeal
Made within 15 days from receipt of the
decision
UNLESS a petition for reconsideration
is filed, which shall be decided within 15
days
Petition for Reconsideration 3 grounds
only:
(1) New evidence has been discovered
which materially affects the decision
(2) Decision is not supported by evidence on
record
(3) Error of law or irregularities have been
committed which are prejudicial to the
interest f the respondent
From resolution of the CSC, file a
petition for certiorari R65 w/in 30 days from
receipt of copy of the resolution
Summary Dismissal
RA 6654
Removal of Administrative Penalties or
Disabilities
Meritorious
cases,
upon
recommendation of the CSC
President may commute or remove
administrative penalties or disabilities
imposed upon officers or employees in
disciplinary cases
Subject to terms and conditions he may
impose in the interest of the service
Abandonment
147
no
incompatibility; though accepted latter, he
continued to pursue legal remedies to
recover the first from which he was ousted
by a law later to be declared
unconstitutional.
Exception: when authorized by law to
accept the other office.
Abolition of Office
Power of legislature to abolish an office
Congress; even during the term for which
an existing incumbent may have been
elected
Constitutional
offices
cannot
be
abolished
No law shall be passed reorganizing the
Judiciary, when it undermines security of
tenure
Valid abolition of office does not
constitute removal of incumbent
Legal competence if the city council to
create, consolidate and reorganize city
offices and positions wholly supported by
local funds
Requisite for Abolition of Office
(1) Made in good faith
(2) Clear intent to do away with the office
(3) Cannot be implemented in a manner
contrary to law
Reorganization of Government Offices
Constitutional recognition of authority to
reorganize: promotion of simplicity,
economy and efficiency is the usual
standard.
No violation of due process even if no
hearing was conducted in the matter of
Conviction of a Crime
Penalty imposed upon conviction carries
with it the accessory penalty of
disqualification,
conviction by final
judgment automatically terminates official
relationship.
Plenary pardon extinguished the
accessory penalty of disqualification, it will
not restore the public office to the officer
convicted;
He must be given a new appointment.
Filing of Certificate of Candidacy
Any person holding a public appointive
office or position,
Including active members of the AFP
And officers and employees in GOCCs
Shall be considered ipso facto
RESIGNED upon filing of certificate of
candidacy.
Applies even to employees of GOCCs
without an original charter
GENERAL PRINCIPLES
Nature
Remedies
Parties
Enforcement
149
Public
International
Law
International
International
Modes
International
Entities
International
Sanction
Private
International
Law
Municipal
Local
Tribunals
Private
Persons
Sheriff/Police
International
Morality/Ethics
Incorporation
Doctrine of Incorporation (Section 2,
Article II) - adopts the generally accepted
principles of international law as part of the
law of the land
Although Philippines was not a
signatory to the Hague and Geneva
Conventions, international jurisprudence is
automatically incorporated in Philippine
law, making WAR CRIMES punishable in
the Philippines. (Kuroda vs. Jalandoni)
Prolonged detention of stateless aliens
pending deportation was deemed illegal
incorporating Universal Declaration of
Human Rights (Borovsky vs. Commissioner
of Immigration)
Transformation
Doctrine of Transformation requires the
enactment by the legislative body of such
international law principles as are sought to
be part of municipal law.
protect and advance the right of the
people to a balanced and healthful ecology
in accord with the rhythm and harmony of
nature taken from the Universal
Declaration of Human Rights and the Alma
Conference Declaration of 1978, which
International Law
Not imposed but
adopted by states as a
common
rule
of
action.
150
1.
2.
3.
2. As SECONDARY SOURCES
Judicial Decisions
Generally of international tribunals.
Most authoritative: ICJ
NOT really sources, but subsidiary
means for finding what the law is and
whether a norm has been accepted as a rule
of international law.
Decision of a national court may be used
depending upon the prestige and perceived
impartiality of the domestic court, not being
in conflict with the decisions of international
151
Interpretation of Article 38
although silent, by practice, hierarchy is:
1. treaties
2. customs
3. general principles of law
Exception: Principle of Jus Cogens
Customary international law which has
the status of a peremptory (absolute,
uncompromisisng,
certain)
norm
of
international law.
A peremptory norm is a norm accepted
and recognized by the international
community of states as a rule, from which
no derogation is permitted and which can be
modified only as a subsequent norm having
the same character.
Example: slave trade, piracy and
terrorism
States
group of people living together in a fixed
territory,
organized for political ends
under an independent government
and capable of entering into international
relations with other states.
Elements of a State
1. People
Group of individual, of both sexes,
living together as a community.
Sufficient in number to maintain and
perpetuate themselves.
Casual gathering or a society of pirates
would NOT constitute a state.
2. Territory
Fixed portion on the earths surface
occupied by the inhabitants.
3. Government
Organized, exercising control over and
capable of maintaining law and order within
the territory.
Can be held internationally responsible
for the acts of the inhabitants.
Identity of the state is not affected by
changes in government.
4. Independence or Sovereignty
Freedom from outside control in the
conduct of its foreign and internal affairs.
152
1. Civilization
2. Recognition
Act by which a state acknowledges the
existence of another state, a government,
belligerent community and indicates its
willingness to deal with the entity as such
under international law.
Theories on Recognition
1. Constitutive (Minority View)
Recognition is the act which constitutes
the entity into an international person.
Recognition is compulsory and legal.
It may be compelled once the elements
of the state are established.
2. Declarative (Majority View)
Recognition merely affirms an existing
fact, like possession of the state of the
essential elements.
Discretionary and political.
Kinds of Recognition
1. De Facto
Some of the requirements for
recognition are absent.
Recognition generally provisional
Limited to certain juridical relations and
it does not bring about full diplomatic
intercourse
Does not give titles to assets of the state
held or situated abroad
2. De Jure
Requirements for recognition are
fulfilled
When there is no specific indication,
recognition is generally considered de jure
Relatively permanent
Full diplomatic intercourse
Diplomatic immunities
Confers titles to assets abroad
3. Express
4. Implied
Effects of Recognition
1. Diplomatic relations
153
6. succession
Extinction of States
1. extinction
2. emigration en masse of its population
3. loss of territory
4. overthrow of government resulting in
anarchy
Creation of States
1. accretion of independence
2. agreement
3. attainment of civilization
4. revolution
5. unification
154
Classes of States
1. Independent freedom to direct and
control foreign relations without restraint
from other states
a. Simple single central government with
power over internal and external affairs.
b. Composite 2 or more sovereign states
joined
together
to
constitute
one
international person
i. Real Union
2 or more states are merged under a
unified authority so that they form a single
international person through which they act
as one entity.
State retains their separate identities.
Respective international personalities are
extinguished and blended in the new
international person.
ii. Federal Union
2. Dependent theoretically a state, but
does not have full freedom in the direction
of its external affairs
a. Protectorate established at the request
of a weaker state for the protection by a
strong power
b. Suzerainty result of a concession from
a state to a former colony that is allowed to
be independent subject to the retention by
the former sovereign of certain powers over
external affairs of the latter.
3. Neutralized independence and integrity
are guaranteed by an international treaty on
the condition that such states obligates itself
never to take up arms against any other state
(except in self-defense) or to enter into an
international obligation as would indirectly
involved it in war.
territory
administered by 2 states.
The United Nations
Historical Development
1. League of Nations
155
jointly
2. London Declaration
3. Atlantic Charter
4. Declaration by United Nations
5. Moscow Declaration
6. Dumbarton Oaks Proposal
7. Yulta Conference
8. San Francisco Conference
9. UN General Assembly welcomed
Macedomia
Membership
Classes: based on the manner of
admission, members may be:
1. Original
2. Elective
Qualification
1. State
2. peace-loving
3. accept the obligations under the Charter
4. able and willing to carry out these
obligations
Admission
Decision of 2/3 of those present and
voting in the General Assembly upon
recommendation of at least 9 including
permanent members of the Security Council
Suspension
Decision of 2/3 of those present and
voting in the General Assembly upon
recommendation of at least 9 including
permanent members of the Security Council
Effects:
1. Cannot participate in meetings
2. Cannot be elected to continue or to serve
in the Security Council, Economic and
Social Council and Trusteeship Council
3. Nationals may continue to serve in the
Secretariat and IC,
4. A member is still subject to discharge its
obligations under the Charter
To lift, qualified majority vote of the
Security Council
Expulsion
2/3 vote of those present and voting in
the
General
Assembly
upon
recommendation of at qualified majority of
the Security Council
Ground: persistently violating the
principles contained in Charter
Withdrawal
Intended
that no provision on
withdrawal is included in the charter.
No
compulsion
for
continued
membership.
UN Charter
Constitution, that governs the relations
of international persons
Technically, a treaty a contract which
parties must respect under the doctrine of
pacta sunt servanda, although it also applies
to non-member States at least in so far as
may be necessary for the maintenance of
international peace and security.
111 articles + preamble + concluding
provisions
Annexed is the Statute of the ICJ
Amendment
2/3 of the members of the General
Assembly and ratified in accordance with
their respective constitutional processes by
2/3 of the members of the UN, including
permanent members of the Security Council
A general conference called by a
majority vote of the General Assembly and
any nine members of the Security Council,
may propose amendments by a 2/3 vote of
the conference and shall take effect when
ratified by 2/3 of the members of the UN,
including the permanent member of the
Security Council.
Principal Objectives
1. prevention of war
2. maintenance of international peace and
security
3. development of friendly relations among
members of the international community
4. attainment of international cooperation
5. harmony in the actions of nations
156
1.
2.
3.
4.
5.
6.
Principal Organs
General Assembly
Security Council
Economic and Social Council
Trusteeship Council
Secretariat
International Court of Justice
General Assembly
- Consist of all the members of the
organization
- Each is entitled to not more than 5
representative and 5 alternates
- Each member has only one vote
- Regular session once a year
- May hold special sessions called by
Secretary General at the request of the
Security Council or majority of members
- On important questions, vote of 2/3 of
the members present and voting is required
- On other questions, a simple majority
- To classify the question as important, the
vote required is a simple majority
- Functions
1) Deliberative
2) Supervisory
3) Financial
4) Elective
5) Constituent
Security Council
- Key organ in the maintenance of
international peace and security
- Composition
1) 5 permanent members: China, France,
Russia, UK and US
2) 10 elective members, elected for 2 years
by the General Assembly
5 from African and Asian States
2 from Latin American States
2 from Western European and other
states
1 from Eastern European state
- For elective members, no immediate
reelection is allowed
157
Trusteeship Council
Assisting the Security Council and the
General Assembly in the administration of
the International Trusteeship System
Composition
1) Members of UN administering trust
territories
2) Permanent members of the Security
Council not administering trust territories
3) As many other members elected by the
General Assembly as may be necessary to
ensure that the total number of members of
the UN which administer trust territories and
those which did not
Secretariat
158
Individuals
- Traditionally considered as objects
- Granted a certain degree of international
personality under a number of Agreements:
1. UN Charter
2. Universal Declaration of Human Rights
3. treaties, e.g. Treaty of Versailles
4. The need for States to maintain an
international standard of justice in the
treatment of aliens
5. Genocide Convention
6. 1930 Hague Convention
7. 1950 European Convention on Human
Rights and Fundamental Freedoms
159
Right of Equality
- Article 2 of UN Charter
Organization is based on the principle of
sovereign equality of all its members
Guaranteed is legal or sovereign
equality: equal in law, rights of sovereignty,
personality, territorial integrity and political
independence respected by others.
Not equality in fact
- Act of State Doctrine
A state should not inquire into the legal
validity of the public acts of another state
done within the territory of the latter.
Considerations such as motive are
immaterial.
State doctrine seems to make a
determination on the validity of the
confiscation of property by a foreign state a
violation of the principle of international
law. (Sabbatino Case)
Acts
of torture, execution and
disappearance were clearly acts outside of
160
IV.
RIGHT
TO
TERRITORIAL
INTEGRITY AND JURISDICTION
Territory
- Fixed portion on the surface of the earth
on which the State settles and over which it
has supreme authority.
- Components:
1. Terrestrial
2. Aerial
3. Fluvial
4. Maritime
- National Territory of the Philippines
Section 1, Article I.
- Organic Acts
1. Treaty of Paris cession of the
Philippine Islands by Spain to the US
2. Treaty between Spain and the US
Cagayan, Sulu and Sibuto
3. Treaty between US and Great Britain
Turtle Islands and Mangsee Islands
4. 1935 Constitution Batanes
5. 1973 Constitution by historic or legal
title
6. PD 1596 Kalyaan Islands by virtue of
occupation and exercise of jurisdiction
Land Territory (Terrestrial Domain)
Modes of Acquisition
1. Discovery and Occupation
Territory not belonging to any State or
terra nullius is placed under the sovereignty
of the claiming State.
Discovery alone merely creates an
inchoate right and it must be followed
within a reasonable time by effective
occupation and administration.
Palmas Island Arbitration Case
inchoate right flowing from discovery was
deemed lost because administration was not
undertaken within a reasonable time.
Clipperton Island Case small territory
infrequent administration sufficient
Eastern Greenland Case thinly
populated and uninhabited areas, very little
161
162
163
Outer Space
Rules governing high seas apply;
considered res communes.
Under customary international law,
States have the right to launch satellites in
orbit over the territorial air space of other
States.
Outer Space Treaty of 1967
1. Outer space is free for exploration and
use by all States
2. Cannot be annexed by any State
3. May be used exclusively for peaceful
purposes. (nuclear weapons of mass
destruction may not be placed in orbit
around the earth)
1972 Convention on International
Liability for Damage Caused by Outer
Space Objects
o States which launch objects into space
may be held liable for the harmful
contamination or for damage which may be
caused by falling objects.
Theories on where outer space begins
1. lowest altitude for artificial earth
satellites to orbit without being destroyed by
friction (90 kms above earth)
Air Territory
- Aerial domain
- Air space above the land and water of
the state.
- International Convention on Civil
Aviation (Chicago Convention)
Every State has complete and exclusive
sovereignty over the air space above its
territory; but this shall not include outer
space (re communes).
Other States have no right of innocent
passage over the air territory of another
State.
164
Jurisdiction
- Power or authority exercised by a State
over land, persons, property, transactions
and events.
- Bases of Jurisdiction
1. Territorial Principle
State may exercise jurisdiction only
within its territory.
Exceptionally, it may have jurisdiction
over persons and acts done outside its
territory depending on the kind of
jurisdiction it invokes.
While there is no territorial limit on the
exercise of jurisdiction over civil matters, a
State, as a general rule, has criminal
jurisdiction over offenses committed
committed within its territory, except over:
1. continuing offenses
2. acts prejudicial to the national security
or vital interests of the State
3. universal crimes
4. offenses covered by special agreement
(obsolete)
2. Nationality Principle
State has jurisdiction over its nationals
anywhere in the world, based on the theory
that a national is entitled to the protection of
the State wherever he may be, and thus, is
bound to it by duty of obedience and
allegiance, unless he is prepared to renounce
his nationality.
Applies to civil matters (Article 15 of
CC) and taxation.
NOT applicable to criminal offenses.
3. Protective Principle
State has jurisdiction over acts
committed abroad (by nationals or
foreigners) which are prejudicial to its
national security or vital interests.
165
166
(Principle
of
extra-territoriality:
exemption from jurisdiction is based on
treaty or convention; discredited)
5) Enjoyment of easements and servitudes
Rome Statute of the International Criminal
Court (ICC)
- Adopted in July, 1988 by a Conference
of States in Rome
- Come into existence once 60 States have
ratified
- Philippines signed the ICC Statute on 28
December 2000
- January 2000 124 countries have
signed; only 25 have ratified
- Jurisdiction of the court limited to
serious crimes of concern to international
community as a whole
a. Genocide
b. Crimes against humanity
c. War crimes
d. Crimes of aggression
V. RIGHT OF LEGATION
The Right of Legation
Right of Diplomatic Intercourse
Right of the state to send and receive
diplomatic missions, which enables States to
carry on friendly intercourse.
Not a natural or inherent right, exists by
common consent.
No legal liability is incurred by the State
for refusing to send or receive diplomatic
representatives.
Governed by the Vienna Convention on
Diplomatic Relations.
168
1) Papal Nuncio
2) Oldest ambassador
3) Oldest minister plenipotentiary
Appointment of Envoys
In the Philippines, the President
cannot be questioned
Sending state is not absolutely free in the
choice of its diplomatic representatives,
especially heads of mission BECAUSE the
receiving State has the RIGHT TO REFUSE
to receive as envoy of another State a person
whom it considers unacceptable,
To avoid embarrassment, sending State
may resort to an INFORMAL inquiry
(enquiry) to which the receiving State
responds with an informal conformity
(agreement) AGREATION
After conclusion of the informal process,
the diplomatic mission commences when the
envoy presents himself at the receiving state
generally armed with the following papers:
1) LETTRE DE CREANCE (Letter of
Credence) name/rank/general character of
the mission and a request for favorable
reception and full credence
2) DIPLOMATIC PASSPORT authorizing
his travel
3) INSTRUCTIONS includes document
of full powers (pleins pouvoirs) authorizing
him to negotiate on extraordinary or special
business
4) CIPHER/CODE/SECRET KEY for
communications with his country
Functions
1) Represent sending State
2) Protect in receiving State the interests of
the sending State and its nationals, within
the limits of international law
3) Negotiating with the government of
receiving State
4) Ascertaining by all lawful means the
conditions and development in the receiving
State
5) Promote friendly relations
4. Service Staff
Engaged in domestic service of the
mission
Diplomatic Corps
According to custom, all diplomatic
envoys accredited to the same state form a
body known as the Diplomatic Corps
Doyen/head of the body:
169
170
171
Duration of Immunities/Privileges
From the moment he enters the territory
of the receiving State
Cease only the moment he leaves or on
expiry of a reasonable time in which to do
so
w/ regard to official acts immunity
shall continue indefinitely
privileges are available even in transitu
when traveling through a Third State on
the way to or from the receiving State
Waiver of Immunities
GR: waiver cannot be made by the
individual concerned since such are not
personal to him.
Waiver by the government of the
sending State if it concerns the immunities
of the head of mission
Other cases, by the government or chief
of the mission
Waiver does not include waiver of
immunity with respect to execution of
judgment separate waiver necessary
Termination of Diplomatic Mission
1) Death
2) Resignation
3) Removal
4) Abolition of office
5) Recall by the sending state
6) Dismissal by receiving state
7) War between sending and receiving
8) Extinction of state
Consular Relations
- Consuls: State agents residing abroad for
various purposes, mainly in the interest of
commerce and navigation.
- Kinds
1) Consules missi professional and career
consuls; nationals of appointing state
172
VI. TREATIES
Treaty
- International
agreement
concluded
between States in written form and governed
by international law, whether embodied in a
single instrument of in 2 or more
instruments and whatever its particular
designation.
- Agreement between States including
international organizations of States
intended to create legal rights and
obligations of the parties.
- Executive agreement, under municipal
law, is not a treaty. But from the standpoint
of international law, equally binding as
treaties.
- Qatar vs. Bahrain: Minutes to a Meeting
and exchange of letters constitute an
international agreement creating rights and
obligations for the parties.
Form
- Article 2, 1969 Vienna Convention on
the Law of Treaties, treaties should be in
writing.
- Article 3, fact that treaty is unwritten
shall not affect its legal force.
- But that convention rules on matters
governed by international law independently
of convention shall apply and that
Treaties
Executive
Agreements
Basic political issues Adjustment of detail
Changes in national carrying out wellpolicy
established national
policies
Permanent
Temporary
international
arrangements
arrangements
When there is a dispute as to whether or
not an international agreement is purely an
executive agreement, the matter is referred
to the Secretary of Foreign Affairs who will
then seek the comments of the SENATE
REPRESENTATIVE and the LEGAL
ADVISER of the DFA and after consultation
with the Senate leadership, the Secretary
shall
then
make
the
appropriate
recommendations to the President.
Treaty-making Process
1) Negotiations
Pleine pouvoirs
Even w/o such, it has been the general
practice to consider the following as
representatives of the State for treaty
negotiations:
1) Head of State
2) Head of Government
3) Foreign Minister
4) Head of diplomatic missions
5) Representative accredited by the State to
an international conference or to an
international organization
2) Signing of the Treaty
Principle of alternat order of the
naming of the parties and of the signatures
of the plenitpotentiaries is varied so that
each party is named and its plenipotentiary
signs first in the copy of the instrument to be
kept by it.
3) Ratification
Provisions of a treaty are formally
confirmed and approved by a State and by
174
Fundamental principles
1) Pacta sunt servanda
Treaties must be observed in good faith.
If necessary, State must modify its
national legislation to make them conform to
the
treaty,
to
avoid
international
embarrassment
Philippines treaty may be invalidated
if contrary to Constitution
Tanada vs. Angara: Treaties do not limit
or restrict sovereignty of a State; by their
voluntary act, States may surrender some
aspects of their power in exchange for
greater benefits granted by or derived from a
convention or pact.
2) Rebus sic stantibus
Contracting States obligations under a
treaty terminates when a vital or
fundamental change or circumstances
occurs, thus allowing a State to unilaterally
withdraw from a treaty, because of
disappearance of the foundation upon
which it rests.
Doctrine does not operate automatically,
there must be a FORMAL ACT OF
REJECTION, usually by the HEAD OF
STATE, with a statement of the REASONS
why compliance with the treaty is no longer
required.
Requisites
1) Change must be so substantial that the
foundation of the treaty must have altogether
disappeared
2) Change must have been unforeseen or
unforeseeable at the time of the perfection of
the treaty
Amendment/Modifications
Consent of all the parties is required
If allowed by the treaty itself, 2 States
may modify a provision only insofar as they
are concerned.
Termination of Treaties
1) EXPIRATION of the term or
WITHDRAWAL of a party
2) EXTINCTION of one of the parties
(bipartite treaties)
When the rights and obligations under
the treaty would not devolve upon the State
that may succeed the extinct State
3) MUTUAL AGREEMENT of ALL the
parties
4) DENUNCIATION or DESISTANCE
The right to give notice of termination or
withdrawal right of denunciation
5) SUPERVENING IMPOSSIBILITY of
performance
6) CONCLUSION of SUBSEQUENT
INCONSISTENT TREATY
7) LOSS of the subject matter
8) MATERIAL BREACH or violation
9) REBUS SIC STANTIBUS
10) Outbreak of WAR, unless the treaty
precisely relates to the conduct of war
175
Loss of Nationality
1) Release
2) Deprivation
3) Renunciation
4) Substitution
AND
Multiple Nationality
Possessed of mope than one nationality
because of the concurrent application to him
of the municipal laws of 2 or more states
claiming as their national.
Arise by:
1) Concurrent application to him of the
principles of jus sanguinis and jus soli
2) naturalization w/o renunciation of the
original nationality
3) legitimation
4) legislative action
Policy in the Philippines- dual allegiance
is inimical to national interest and shall be
dealt with by law.
Resolution of conflicts in Multiple
Nationality Cases
1930 Hague Convention on the Conflict
of Nationality Law
1) A person having 2 or more nationalities
regarded as national by each of the States;
AND a state may not give diplomatic
protection to one of its nationals against a
State whose nationality that person
possesses.
2) If a person has more than one
nationality, he shall within a 3rd state, be
treated as if he had only one; the third State
shall recognize exclusively either the
nationality of the State in which he is
habitually and principally resident or the
nationality of the State with which he
appears in fact to be most closely connected
Principle of Effective Nationality
3) If a person, without any voluntary act of
his won, possesses double nationality, he
may renounce one of them with the
permission of the State whose nationality he
wishes to surrender and, subject to the laws
176
aliens
from
its
territory
through
DEPORTATION or RECONDUCTION.
DEPORTATION or EXPULSION
Menace to the security of the State
Entry was illegal
Permission to stay has expired
Violated any limitation or condition
prescribed for his admission and continued
stay.
RECONDUCTION
Forcible conveying of aliens back to
their home States
Destitute aliens
Vagabonds
Aliens without documents
Alien criminals
Home state of such aliens has the
obligation to receive them
Alien must accept the institutions of the
State. He may be deprived of certain rights.
Local laws may grant him certain rights
and privileges based on:
1. reciprocity
2. most-favored-nation treatment
3. national treatment (equality between
nationals and aliens in certain matters)
privileges may be revoked, subject to
treaty stipulations.
Statelessness
- Status of having no nationality, as a
consequence of being BORN WITHOUT A
NATIONALITY or as a result of
DEPRIVATION
or
LOSS
OF
NATIONALITY.
- 1954 Convention Relating to the Status
of Stateless Persons contracting states
agreed to grant to stateless persons within
their territories treatment at least as
favorable as that accorded to their nationals
with respect to:
1. freedom to practice their religion and
freedom as regards the religious education
of their children
2. access to courts
3. rationing of products in short supply
4. elementary education
5. public relief and assistance
6. labor legislation and social security
- Contracting states also agreed to grant to
stateless persons within their territories as
favorable as possible, in any event, not less
favorable than that accorded to aliens:
1. acquisition of movable and immovable
property
2. right of association in non-political and
non-profit-making associations and trade
unions
3. gainful employment and practice of
liberal profession
4. housing and public education other than
elementary
5. freedom of movement
177
Basis
treaty
local state may grant asylum, or
if there is surrender, the same is merely a
gesture of comity
Deportation
expulsion of an alien who is considered
undesirable by local state, usually but
necessarily to his own state
unilateral act of the local state and is
made in its own interests
Extradition
surrender of a fugitive by one state to
another where he is wanted for prosecution
or punishment.
Surrender is made at the request of the
latter state on the basis of a treaty.
Fundamental Principles:
1. Based on CONSENT treaty or
goodwill
2. PRINCIPLE OF SPECIALTY fugitive
who is extradited may be tried only for the
crime specified in the request for extradition
and included in the list of offenses in the
extradition treaty.
State of refuge has the right to object to
a violation
Non-list types of extradition treaties
offenses punishable under the laws of both
states by imprisonment on 1 year or more
are included among extraditable offenses.
3. ANY PERSON may be extradited
4. POLITICAL
AND
RELIGIOUS
OFFENDERS are generally not subject to
extradition
5. Offense must have been COMMITTED
WITHIN the territory or AGAINST THE
INTERESTS of the demanding state
Asylum
- Power of the state to allow an alien who
has sought refuge from prosecution or
persecution to remain within the territory
and under its protection
- Never been recognized as a principle of
international law.
Principles on Asylum
Territorial Asylum
Exists when stipulated in a treaty or
justified by established usage.
May depend on the liberal attitude of the
receiving state, territorial supremacy
Diplomatic Asylum
Exists when stipulated in a treaty or
justified by established usage.
Within narrowest limits or when the
life or liberty of the person is threatened by
imminent violence.
International Disputes
Actual disagreement between States
regarding the conduct to be taken by one of
them for the protection or vindication of the
interests of the other.
Situation initial stage of dispute
Refugees
- Any person who is outside the country
of his nationality, or if he has no nationality,
the country of his former habitual residence,
because he has or had well-founded fear of
prosecution by reason of his race, religion,
180
Hostile Methods
- Pacific methods have failed.
- Includes:
1. Severance of Diplomatic Relations
2. Retorsion unfriendly but lawful,
coercive acts done in retaliation for unfair
treatment and acts of discrimination of
another state. (e.g. levy of high
discriminatory tariffs on goods)
3. Reprisal unfriendly and unlawful acts
in retaliation for reciprocal unlawful acts of
another state:
a. Freezing of the assets of the nationals of
the other state
b. Embargo forcible detention or
sequestration of vessels and other property
of the offending state.
c. Pacific blockade prevention of
entry/exit from the ports of the offending
state of means of communication or
transportation n(could be violative of UN
Charter)
d. Non-intercourse suspension of all
intercourse with the offending state, in
matters of trade and commerce
e. Boycott concerted suspension of
commercial relations with the offending
Judicial Settlement
Arbitration
Judicial body is pre- Arbitrary body is ad
existing
hoc
Jurisdiction is usually
compulsory
Law
applied
is
independent of the
will of the parties
Judicial settlement of
international dispute
is now lodges in the
International Court of
Justice
Optional Jurisdiction Clause
ICJs jurisdiction is based on consent of
the parties.
181
Security Council
- Intervene in all disputes affecting
international peace and security and in all
disputes which although coming under the
domestic jurisdiction clause, have been
submitted to it by the parties for settlement.
a. Security Council will recommend
appropriate measures; consider amicable
measures or refer matter to ICJ;
b. If unsuccessful, Security Council may
recommend such terms of settlement as it
may deem appropriate; and
c. If the terms of settlement are rejected,
Security Council may take:
Preventive Action
Not involving use of armed force
E.g. complete or partial interruption
of economic relations, and of rail, sea, air,
postal, telegraphic, radio or other means of
communications and severance of
diplomatic relations.
Enforcement Action
By air, sea or land forces as may be
necessary
to
maintain
or
restore
international peace and security including
demonstrations, blockades and other
operations by air, sea or land forces of
members of the UN.
Member state is obliged to render
assistance in carrying out the measures
decided upon by the Security Council.
Outlawry of War
Condemnation of war on an international
scale
Covenant of the League of Nations:
conditions for the right to go to war
Kellogg-Briand Pact of 1928 or General
Treaty for Renunciation of War: forbade war
as an instrument of national policy
Charter of the United Nations: prohibits
the threat or use of force against the
territorial integrity or political independence
of a state.
Commencement of War
a. Declaration of war
b. Rejection of an ultimatum
c. Commission of an act of force regarded
by one of the belligerents as an act of war
Effects of Outbreak of War
(1) Laws of peace cease to regulate the
relations between the belligerents and are
superseded by laws of war;
Third states are governed by laws of
neutrality in their relations with the
belligerents;
General Assembly
182
Participants in War
1. Combatants those who engage directly
in the hostilities
2. Non-combatants those who do not
183
Mercenaries
Protocol I to the 1949 Geneva
Convention
Mercenaries shall not have the rights of
combatants or of prisoners of war.
To be considered a mercenary
a. The person must be a specially recruited
to fight for a particular armed conflict
b. Must take direct part in the hostilities
c. Motivated essentially by the desire for
personal gain and is provided material
compensation substantially in excess of that
promised or paid to combatants of similar
ranks and functions in the armed forces of
that party.
Belligerent Occupation
Temporary military occupation of the
enemys territory during the war.
Maintains effective control and military
superiority and being able to send sufficient
forces to assert its authority within a
reasonable time.
Effects
No change in sovereignty, but exercise of
the powers of sovereignty is suspended.
Political laws, except the laws on treason,
are suspended.
Municipal laws remain in force.
Conduct of Hostilities.
Three Basic Principles
Principle of Military Necessity
The belligerent may employ any amount of
force to compel the complete submission of
the enemy with the least possible loss of
lives, time and money.
Principle of Humanity
Prohibits the use of any measure that is not
absolutely necessary for the purposes of the
war.
Humanitarian Convention in Armed Conflict
The right of the parties to adopt means of
injuring the enemy is not unlimited
Parties are prohibited to launch attacks
against the civilian population as such
184
Right of Angary
Right of belligerent state, in cases of
extreme necessity, to destroy or use neutral
property on its own or on enemy territory or
on the high seas
Suspension of Hostilities
Licenses to Trade
Permission given by competent authority
to individuals to carry on trade though there
is state of war.
Suspension of Arms
Temporary cessation of hostilities
By agreement of the local commanders
For the purposes of gathering of the
wounded and burial of the dead
Non-Hostile Intercourse
Flag of Truce
White in color desire to communicate
with the enemy
Agent
(parlementaire)
enjoys
inviolability and is entrusted with the duty
of negotiating with the enemy.
Armistice
Suspension of hostilities within a certain
area or in the entire region of the war
Agreed upon by the belligerents
Usually for the purpose of arranging the
terms of the peace
Cartels
Agreements to regulate intercourse
during the war
Usually on the exchange of prisoners of
war
Cease-Fire
Unconditional stoppage of hostilities
Usually ordered by an international body
Truce
Conditional
purposes
Passport
Written permission given by the
belligerent government
To the subjects of the enemy
To travel generally in the belligerent
state
cease-fire
for
political
Capitulation
Surrender of military forces, places or
districts in accordance with rules of military
honor.
Sage-conduct
Permission given to an enemy subject or
to an enemy vessel
Allowing passage between defined
points
Termination of War
1. Simple Cessation of Hostilities
Principle of uti possidetis with respect to
property and territory possessed by the
belligerents is applied.
2. Conclusion of a negotiated treaty of
peace
Safeguard
185
War Crimes
- Acts for which soldiers or other
individuals may be punished by the enemy
on capture of the offender.
- War Criminal: any person civilian or
member of the armed forces of the State,
who commits an act that violates a rule of
international law governing armed conflicts
Neutrality and Neutralization
Neutrality
Non-participation in a war between
contending belligerents
Exists only during war
Governed by the law of nations
Naturalization
Result of a treaty wherein conditions of the
status are agreed upon by the neutralized
state and other signatories
Exists both in times of war and of peace
Governed by the agreement entered into by
and between the parties
A permanently neutral or neutralized
state is one whose independence or integrity
is guaranteed by other states, under the
condition that such state binds itself never to
participate in an armed conflict or military
operation except for individual self-defense.
Rules of Neutrality
Neutrals have the right and duty:
Abstain from taking part in the hostilities
and from giving assistance to either
belligerents by:
Sending of troops
Official grant of loans
Carriage of contraband
Contraband goods which, although neutral
property, may be seized by a belligerent
because they are useful for war and are
bound for a hostile destination.
i.
Absolute useful for war under all
circumstances (guns/ammunitions)
ii.
Conditional have both civilian and
military utility (food and clothing)
iii.
Free list exempt from the law on
contraband for humanitarian reasons
(Medicines)
Doctrine of Ultimate Consumption
goods intended for civilian use which may
ultimately find their way to and be
consumed by belligerent forces may be
seized on the way.
Doctrine of Infection innocent goods
shipped with contraband may also be seized
Doctrine
of
continuous
voyage/continuous transport goods
reloaded at an intermediate port on the same
vessel or reloaded on another vessel or other
186
187