Beruflich Dokumente
Kultur Dokumente
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Nachura Notes Constitutional Law
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Nachura Notes Constitutional Law
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Nachura Notes Constitutional Law
The established rule is that a party can - Legislature must be willing to retain the
question the validity of a statute only if, as valid portions separability clause
applied to him, it is unconstitutional. - Valid portion can stand independently as
Exception: Facial Challenge, when it law
operates in the area of freedom of
expression. III. THE PHILIPPINES AS A STATE
Overbreadth Doctrine: permits a party to State: a community of persons, more or less
challenge the validity of a statute even numerous, permanently occupying a definite
though, as applied to him, it is not portion of territory, independent of external
unconstitutional, but it might be if applied to control and possessing a government to
other not before the Court whose activities which a great body of inhabitants render
are constitutionally protected. habitual obedience.
Invalidation of the statute on its face,
rather than as applied is permitted in the State is a legal or juristic concept; nation is
interest of preventing a chilling effect on an ethnic or racial concept.
freedom of expression. Government is an instrumentality of the
Facial challenge is the most difficult State through which the will of the State is
challenge because the challenge must implemented and realized.
establish that no set of circumstances exists
under which the act would be valid. Elements:
- The constitutional question must be (1) People
raised at the earliest possible opportunity (2) Territory
- The decision on the constitutional Components:
question must be determinative of the case 1) Terrestrial
itself. 2) Fluvial
- Bars judicial inquiry into a constitutional 3) Maritime
question unless the resolution is 4) Aerial
indispensable to the determination of the (3) Government
case. (4) Sovereignty
- Every law has in its favor the
presumption of constitutionality, and to Archipelago Doctrine: the waters around,
justify its nullification, there must be a clear between and connecting the islands of the
and unequivocal breach of the Constitution. archipelago, regardless of their breadth and
dimensions, form part of the internal waters
5. Effects of Declaration of of the Philippines.
Unconstitutionality
- Orthodox View: unconstitutional act is Straight Baseline Method: Imaginary
not a law, it confers no rights and imposes straight lines are drawn joining the
no duties; it affords no protection, creates no outermost points of outermost islands of the
office; it is inoperative as if it had not been archipelago, enclosing an area the ratio of
passed at all. which should not be more than 9:1; provided
- Modern View: certain legal effects of the that the drawing of the baselines shall not
statute prior to its declaration of depart, to any appreciable extent, from the
unconstitutionality may be recognized. general configuration of the archipelago.
6. Partial Unconstitutionality
Functions of the Government:
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(4) Foreign merchant vessels exercising the Royal Prerogative of Dishonesty: There
rights of innocent passage or involuntary can be no legal right against the authority
entry such as arrival under stress which makes the law on which the right
(5) Foreign armies passing through or depends. It may be sued if its gives consent.
stationed in its territory with its permission; Par in parem non habet imperium:
and Immunity is enjoyed by other States. The
(6) Other persons or property, including Head of the State, who is deemed the
organizations like the UN, over which it personification of the State, is inviolable and
may, by agreement, waive jurisdiction. enjoys immunity.
Personal: power of the State over its Test to Determine if Suit is Against the State
nationals, which may be exercised by the Whether it requires an affirmative act
State even of the individual is outside the from the state.
territory of the State.
Suit against Government Agencies
Extraterritorial: power exercised by 1. Incorporated if the charter provides
the State beyond its territory, that the agency can sue and be sued, then
example: suit will lie, including one for tort. The
(1) Assertion of its personal jurisdiction provision in the charter constitutes express
over its nationals abroad or the exercise of consent on the part of the State to be sued.
its right to punish offenses committed Municipal corporations, agencies of the
outside its territory against its national state when they are engaged in
interests even if the offenders are non- governmental functions and should enjoy
resident aliens; sovereign immunity from suit. They are
(2) By virtue of its relations with other subject to suit even in the performance of
states/territories (as when it establishes a such functions because their respective
colonial protectorate or a condominium or charters provide that they can sue and be
administers a trust territory or occupies sued. (Section 22 LGC)
enemy territory in the course of war); 2. Unincorporated inquire into the
(3) Local state waives jurisdiction over principal functions
persons and things within its territory; If governmental: no suit without consent
(4) Principle of extraterritoriality If proprietary: suit will lie, because when
(5) Enjoyment of easements or servitudes the State engages in principally proprietary
(easement of innocent passage or arrival functions, then it descends to the level of a
under stress) private individual, and may therefore be
(6) Exercise of jurisdiction by the state in vulnerable to suit.
the high seas over its vessels, over pirates, in
the exercise of the right to visit and search, Suit Against Public Officers: The doctrine of
and under doctrine or hot pursuit; state immunity also applies to complaints
(7) Exercise of limited jurisdiction over the filed against officials of the State for acts
contiguous zone and the patrimonial sea, to performed by them in the discharge of their
prevent infringement of its customs, fiscal, duties within the scope of their authority.
immigration or sanitary regulations. Exceptions: (may be sued without prior
consent from State)
State Immunity from Suit: The State cannot 1. to compel him to do an act required by
be sued without its consent. law;
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Most pervasive, least limitable and most Who may exercise the power
demanding of the three powers. Congress
Justification: salus populi est suprema By delegation, the President,
lex and sic utere tuo ut alienum non laedas administrative bodies, LGUs and even
private enterprises performing public
Who may exercise? services
Inherently vested in Legislature
Congress may validly delegate this Requisites
power to the President, administrative (1) Necessity
bodies and to lawmaking bodies of LGUs. (2) Private Property, except money and
LGUs exercise this power under the choses in action
general welfare clause (3) Taking in the constitutional sense
(4) Public use
Limitations (test for valid exercise) (5) Just Compensation full and fair
Lawful subject: interest of the public; equivalent of the property taken; fair market
activity or property sought to be regulated value of the property
affects the general welfare; if it does then
the enjoyment of the rights flowing Judicial Prerogative
therefrom may have to yield to the interest Ascertainment of what constitutes just
of the greater number. compensation for property taken in eminent
Lawful means: means employed are domain cases is a judicial prerogative.
reasonably necessary for the
accomplishment of the purpose and not Form of Compensation
unduly oppressive on individuals. Paid in money and no other form.
Express grant by law In agrarian reform, payment is allowed
Within territorial limits (for LGUs to be made partly in bonds because under
except when exercised to protect water the CARP, we do not deal with the
supply) traditional exercise of the power of eminent
Must not be contrary to law domain; we deal with a revolutionary kind
of expropriation.
For Municipal Ordinances to be Valid:
(1) Must not contravene the Constitution or Reckoning point of market value of the
the statute property
(2) Must not be unfair or oppressive Date of the taking or the filing of the
(3) Must not be partial or discriminatory complaint, whichever comes first.
(4) Must not prohibit but may regulate trade
(5) Must not be unreasonable Principal criterion in determining just
(6) Must be general in application and compensation
consistent with public policy Character of the land at the time of the
taking
Power of Eminent Domain (Power of
Expropriation) Entitlement of owner to interest
When there is delay in the payment of
Jurisdiction just compensation, the owner is entitled to
RTC payment of interest if claimed; otherwise,
interest is deemed waived;
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To a limited extent, the President, when amount of tax may be unlimited provided it
granted delegated tariff powers is not confiscatory
License fee is paid for the privilege of
Limitations on the exercise doing something and may be revoked when
Due process of law, must not be public interest so requires; tax is imposed on
confiscatory persons or property for revenue
Equal protection clause, must be uniform
and equitable Kinds of license fee
Public purpose (1) For useful occupation/enterprises
(2) Non-useful occupation/enterprises (when
Double taxation used to discourage, it may be a bit
Additional taxes are laid on the same exorbitant)
subject by the same taxing jurisdiction
during the same taxing period and for the V. PRINCIPLES AND STATE POLICES
same purpose.
Preamble
Tax Exemptions Does not confer rights nor impose duties
No law granting tax exemption shall be Indicates authorship of the Constitution
passed without the concurrence of a majority Enumerates the primary aims and
of all the Members of Congress. aspirations of the framers
Charitable institutions, churches and Serves as an aid in the construction of
parsonages or convents appurtenant thereto, the Constitution
mosques, non-profit cemeteries, and all
lands, buildings and improvements actually, Republicanism
directly and exclusively used for religious, The Philippines is a democratic and
charitable or educational purposes republican state. Sovereignty resides in the
exempt people and all government authority
Revenues and assets of non-stock, non- emanates from them.
profit educational institutions used actually, Essential features
directly and exclusively for educational (1) Representation
purposes exempt (2) Renovation
Proprietary educational institutions Manifestations
may be exempt subject to limitations (1) Government of law and not of men
provided by law (2) Rule of majority
Grants, endowments, donations, or (3) Accountability of public officials
contributions used actually, directly, and (4) Bill of rights
exclusively for educational purposes (5) Legislature cannot pass irrepealable laws
exempt (6) Separation of powers
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the mother and the life of the unborn from The State recognizes the indispensable
conception. The natural and primary right role of the private sector, encourages private
and duty of parents in the rearing of the enterprise, and provide incentives to needed
youth for civic efficiency and the investments.
development of moral character shall
receive support of the Government. Land reform
The State recognizes the vital role of the State shall promote comprehensive rural
youth in nation-building and shall promote development and agrarian reform.
and protect their physical, moral, spiritual,
intellectual and social well-being. It shall Indigenous cultural communities
inculcate in the youth patriotism and State recognizes and promotes the rights
nationalism, and encourage their of indigenous cultural communities within
involvement in public and civic affairs. the framework of national unity and
development.
Fundamental equality of men and women
State recognizes the role of women in Independent peoples organizations
nation-building and shall ensure the State shall encourage non-governmental,
fundamental equality before the law of men community-based, or sectoral organizations
and women. that promote the welfare of the nation.
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Nachura Notes Constitutional Law
Honest public service and full public Guarantee extends to aliens and includes
disclosure the means of livelihood
State shall maintain honesty and
integrity in the public service and take Meaning of life, liberty and property
positive and effective measures against graft Life: right of an individual to his body in
and corruption. its completeness, free from dismemberment
State adopts and implements a policy of and extends to the use of God-given
full public disclosure of all its transactions faculties which makes life enjoyable
involving public interest. Liberty: the right to exist and the right to
be free from arbitrary personal restraint or
VI. BILL OF RIGHTS servitude; includes the right to be free to use
his faculties in all lawful ways
Definition Property: anything that can come under
Set of prescriptions setting forth the the right of ownership and can be subject of
fundamental civil and political rights of the contract; the right to secure, use and dispose
individual, and imposing limitations on the them.
powers of government.
Generally, any government action in Aspects of due process
violation of the Bill of Rights is void. 1. Substantive restriction on
Generally self-executing. governments law- and rule-making powers
Requisites:
Civil Rights 1. interest of the public
Right that belong to every citizen of the 2. means employed are reasonably
state or country and are not connected with necessary for the accomplishment of the
the organization or administration of purpose and not unduly oppressive on
government. individuals
2. Procedural restriction on actions of
Political Rights judicial and quasi-judicial agencies of
Right to participate, directly or government
indirectly, in the establishment or Requisites:
administration of government. 1. impartial court or tribunal clothed with
judicial power to hear and determine the
Due Process of Law: No person shall be matter before it
deprived of life, liberty or property without 2. jurisdiction must be lawfully acquired
due process of law over the person of the defendant and over
Definition the property which is the subject matter of
A law which hears before it condemns, the proceeding
which proceeds upon inquiry and renders 3. the defendant must be given an
judgment only after trial. opportunity to be heard
4. judgment must be rendered upon lawful
Who are protected hearing
Universal in application to all persons
Artificial persons are covered by the Publication as part of due process
protection only insofar as their property is Publication is imperative to the validity
concerned of laws, PDs and Eos, administrative rules
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(2) Leave peace officers with no discretion establishment or place where he is serving
regarding the articles to be seized and thus final judgment or temporarily confined
prevent unreasonable searches and seizures. while his case is pending, or has escaped
while being transferred from one
Warrant of Arrest particularly describe confinement to another; and
the person to be seized if it contains the (4) When the right is voluntarily waived.
name/s of the person/s to be seized.
John Doe warrant descriptio persona Buy-bust operation is a valid in flagrante
arrest.
Search Warrant description is as specific
as the circumstances will ordinarily allow In flagrante arrests:
or when description expresses a conclusion (1) The person to be arrested must execute
of fact (not of law) by which the warrant an overt act indicating that he had just
officer may be guided in making the search; committed, is actually committing, or is
or when the things described are limited to attempting to commit a crime; and
those which bear direct relation to the (2) Such overt act is done in the presence or
offense for which the warrant is being within the view of the arresting officer.
issued.
In (2):
Properties Subject of Seizure: (1) there must be immediacy between the
(1) Subject of the offense time the offense is committed and the time
(2) Stolen or embezzled property and other of the arrest. If there was an appreciable
proceeds or fruits of the offense; and lapse of time between the arrest and the
(3) Property used or intended to be used as commission of the crime, a warrant of arrest
means for the commission of an offense must be secured and
(2) the person making the arrest has
Conduct of the Search personal knowledge of certain facts
(1) Lawful occupant indicating that the person to be taken into
(2) Any member of his family custody has committed the crime.
(3) 2 witnesses, of sufficient age and
discretion, residing in the same locality Question the validity of the arrest before
entering plea; failure to do so would
Warrantless arrests by a peace officer or a constitute a waiver of his right against
private person: unlawful restraint of his liberty. However,
(1) When the person to be arrested has waiver is limited to the illegal arrest. It does
committed, is actually committing or is not extend to the search made as an incident
attempting to commit an offense in his thereto, or to the subsequent seizure if
presence; evidence allegedly found during the search.
(2) When the offense had just been
committed and there is probable cause to
believe, based on his personal knowledge of
facts and of other circumstances, that the
person to be arrested has committed the
offense;
(3) When the person to be arrested is a
prisoner who has escaped from a penal
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Fishing vessel found to be violating fishery Prohibited articles are in plain view
laws may be seized without a warrant: - Objects in plain view of the officer who
(1) usually equipped with powerful motors has the right to be in the position to have
that enable them to elude pursuit and that view.
(2) seizure would be incident to a lawful - Police officer is not searching but
arrest inadvertently comes upon an incriminating
object.
Search of moving vehicles - Requisites:
- justified on the ground that it is not (1) Prior valid intrusion based on a valid
practicable to secure a warrant because the warrantless arrest in which the police are
vehicle can be moved quickly out of the legally present in the pursuit of their official
locality or jurisdiction in which the warrant duties;
may be sought. (2) Evidence was inadvertently discovered
- Prevent violations of smuggling or by the police who have the right to be where
immigration laws, provided that such they are;
searches are made at borders or constructive (3) Evidence must be immediately
borders (e.g. checkpoints near the boundary apparent; and
lines of the state). (4) Plain view justified the seizure of the
evidence without any further search.
Stop and search without a warrant at a
military or police checkpoints Plain View
- Not illegal per se so long as it is required - Object is plainly exposed to sight.
by the exigencies of public order and - Where the object seized is inside a
conducted in a way least intrusive to closed package, the object is not in plain
motorists. (Valmonte vs. de Villa)
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equal opportunity, time and space for - Without this assurance, the individual
political campaigns. Unrelated to would hesitate to speak for fear that he
suppression of speech as it is only incidental might be held accountable for his speech, or
and no more than is necessary to achieve the that he might be provoking the vengeance of
purpose of achieving the purpose of the officials he may have criticized.
promoting equality. - Not absolute and may be properly
- Movie censorship: movie, compared to regulated in the interest of the public.
other media of expression, have a greater - State may validly impose penal and/or
capacity for evil and must, therefore, be administrative sanctions, such as:
subjected to a greater degree of regulation. 1. Libel
- Power of MTRCB can be exercised only - Public and malicious imputation of a
for purposes of classification not crime, or of a vice or defect, real or
censorship. imaginary, or any act, omission, condition,
- Primacy of freedom of expression over status or circumstance tending to cause the
Enriles right to privacy because Enrile dishonor, discredit or contempt of a natural
was a public figure and a public figures or juridical person, or to blacken the
right to privacy is narrower than that of an memory of one who is dead.
ordinary citizen. (Ayer Productions vs. - Oral defamation is called slander.
Judge Capulong) - Every defamatory imputation is
- Board of Review for Motion Pictures presumed to be malicious.
and Television (BRMPT) X-rating Exceptions:
when the program would create a clear and 1. a private communication made by any
present danger of an evil which the State has person to another in the performance of any
the right to prevent. (Inglesi ni Cristo vs. legal, moral or social duty; and
CA) 2. fair and true report, made in good faith,
- No law prohibiting the holding and without any comments or remarks, of any
reporting of exit poll. (ABS-CBN judicial, legislative or other official
Broadcasting Corporation vs. COMELEC) proceedings which are not of a confidential
- Test for the validity of government nature, or of any statement, report or speech
regulation, valid if (OBrien Test): delivered in said proceedings, or of any act
1. within the constitutional power of performed by public officers in the exercise
government; if their functions.
2. furthers an important or substantial - Public has the right to be informed on
government interest; the mental, moral and physical fitness of
3. government interest is unrelated to the candidates for public officer. The rule
suppression of free expression; and applies only to fair comments on matters of
4. incidental restriction on the freedom is public interest, fair comment being that
no greater than is essential to the furtherance which is true, or if false, expresses the real
of that interest. opinion of the author based upon reasonable
- Overbreadth Doctrine: prohibits degree of care and on reasonable grounds.
government from achieving its purpose by 2. Obscenity
means that sweep unnecessarily broadly, - Determination of what is obscene is a
reaching constitutionally protected as well judicial function.
as unprotected activity. 3. Criticism of official conduct
(2) Freedom from subsequent punishment
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- US vs. Bustos: individual is given the substantive evil arising from the utterance
widest latitude in criticism of official questioned
conduct. - present refers to the time element,
- Publication that tends to impede, identified with imminent and immediate
embarrass or obstruct the court and danger
constitutes a clear and present danger to the - The danger must not only be probable,
administration of justice is not protected by but very likely inevitable.
the guarantee of press freedom and (2) Dangerous Tendency Rule
punishable by contempt. It is not necessary - Words uttered create a dangerous
to show that the publication actually tendency of an evil which the State has the
obstructs the administration of justice; it is right to prevent, then such words are
enough that it tends to do so. punishable.
- Freedom of press is subordinate to the - Sufficient if the natural tendency and the
decision, authority, integrity and probable effect of the utterance were to
independence of the judiciary and the proper bring about the substantive evil that the
administration of justice. legislative body seeks to prevent.
4. Right of students to free speech in (3) Balancing of Interests Test
school premises not absolute - When particular conduct is regulated in
- Campus Journalism Act provides that a the interest of public order, and the
student shall not be expelled or suspended regulation results in an indirect, conditional
solely on the basis of articles he or she has or partial abridgment of speech, the duty of
written, the same should not infringe on the the courts is to determine which of the two
schools right to discipline its students. conflicting interests demands the greater
- The school cannot suspend or expel a protection under the particular
student solely on the basis of the articles he circumstances presented.
or she has written, except when such article - Requires a court to take conscious and
materially disrupts class work or involves detailed consideration of the interplay of
substantial disorder or invasion of rights of interests observable in a given situation.
others.
Assembly and Petition
Test of valid government interference - Right to assemble is not subject to prior
(1) Clear and Present Danger Rule restraint.
- Whether the words are used in such - It may not be conditioned upon prior
circumstances and of such nature as to issuance of a permit or authorization from
create a clear and present danger that they government authorities.
will bring about the substantive evils that the - It must be exercised in such a way as
State has the right to prevent. will not prejudice the public welfare.
- The substantive evil must be extremely - PUBLIC PLACE: permit for the use of
serious and the degree of imminence such place, and not for the assembly itself,
extremely high before utterances can be may be validly required. The power of local
punished. officials is merely one of regulation.
- Rule: the danger created must not only - Permit to hold public assembly shall not
be clear and present but also traceable to the be necessary where the meeting is to be held
ideas expressed. in a PRIVATE PLACE.
- clear: seems to point to a causal Public Assembly Act: a permit shall not
connection with the danger of the be necessary where the meeting is to be held
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in a private place, in the campus of the required for the exercise of civil or political
government-owned or operated educational rights.
institution, or in a freedom park. - 2 guarantees:
Where permit is required, written 1. non-establishment clause
application shall be filed with the mayors 2. freedom of religious profession and
office at least 5 days before the scheduled worship
meeting and shall be acted upon within 2 - Non-establishment clause: separation of
days. Otherwise, permit shall be deemed Church and State
granted. 1. cannot be registered as a political party;
Denial shall be justified only upon clear 2. no sectoral representative from the
and convincing evidence that the public religious sector; and
assembly will create a cleat and present 3. prohibition against the use of public
danger to public order, safety, convenience, money or property for the benefit of any
morals and health. religion, or of any priest, minister or
Action shall be communicated within 24 ecclesiastic.
hours to the applicant may appeal to - Exceptions:
appropriate courts. 1. exception from taxation of properties
Decision must be reached within 24 actually, directly and exclusively used for
hours. religious purposes;
The law permits law enforcement 2. citizenship requirement of ownership of
agencies to detail a contingent under a educational institutions, except those
responsible officer at least 100 meters away established by religious groups and mission
from the assembly in case it becomes boards;
necessary to maintain order. 3. optional religious instruction in public
- Academic freedom of institutions of elementary and high schools expressed in
higher learning cannot be utilized to writing by the parents/guardians, taught
discriminate against those who exercise their within regular class hours; and without
constitutional rights. additional costs on the Government; and
- Right to free assembly and petition 4. appropriation allowed where the minister
prevails over economic rights. or ecclesiastic is employed in the armed
- Education of the youth occupies a forces, penal institution or in the
preferred position over the freedom of government-owned orphanage or
assembly and petition. leprosarium.
- Tests priorly applied by the court: - Scope:
1. purpose test 1. State cannot set up a Church
2. auspice test 2. nor pass laws which aid one religion, aid
all religion or prefer one over another;
Freedom of Religion 3. nor force nor influence a person to go to
- No law shall be made respecting an or remain away from church against his will;
establishment of religion or prohibiting the 4. or force him to profess a belief or
free exercise thereof. disbelief in any religion.
- The free exercise and enjoyment of - The term Non-Christian tribes does
religious profession and worship, without not refer to religious belief but to degree of
discrimination or preference, shall forever civilization. (People vs. Cayat)
be allowed. No religious test shall be - Laws, e.g. Article 133 of the RPC, do
not violate freedom of religion.
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part of said agencies. Its performance may - No law impairing the obligation of
be compelled by mandamus. contracts shall be passed.
- In Re: Request for Live Radio-TV - To fall within the prohibition, the change
Coverage of the Trial in the SB of the must not only impair the obligation of the
Plunder Case against Former Pres. Joseph existing contract, but the impairment must
Ejercito Estrada, Secretary of Justice be substantial.
Hernando Perez vs. Joseph Ejercito Estrada: - Change in the rights of the parties with
when the constitutional guarantees of reference to each other and not with respect
freedom of the press and the right to to non-parties.
public information, on the one hand, and - Impairment: anything that diminishes the
the fundamental rights of the accused, on efficacy of the contract
the other hand, along with the - Substantial impairment when the law
constitutional power of a court to control changes either
its proceedings in ensuring a fair and 1) Time of performance
impartial trial race against another, 2) Mode of performance
jurisprudence tells us that the right of the 3) Imposes new conditions
accused must be preferred (losing not only 4) Dispenses with those expressed
his liberty but also the very life of an 5) Authorizes for its satisfaction something
accused). different from that provided in its terms
- Limitations:
Right to Form Associations 1) Police power public welfare is superior
- The right of the people, including those to private rights
employed in the public and private sectors, 2) Eminent domain
to form unions, associations or societies for 3) Taxation
purposes not contrary to law shall not be - Franchises, privileges, licenses, etc do
abridged. not come within the context of the provision
- Scope: includes the right not to join or to Subject to amendment alteration, or
disaffiliate from one. repeal by the Congress when common good
- Right to Strike: members of the civil so requires.
service may not declare a strike to enforce
economic demands. Free Access to Courts
- The ability to strike is not essential to the - Free access to the courts and quasi-
right of association. judicial bodies and adequate legal assistance
- The right of the sovereign to prohibit shall not be denied to any person by reason
strikes or work stoppages by public of poverty.
employees is clearly recognized at common - Social justice provision providing for
law. Modern rule merely incorporate or pauper suits.
reasserts said common law.
- Right is not absolute. Miranda Doctrine
Anti-Subversion Act - Any person under investigation for the
Managerial employees: receive commission of an offense shall have
information that is not only confidential but The right to be informed of his right to
also generally not available to the public. remain silent and
To have competent and independent
Non-impairment Clause counsel preferably of his own choice.
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- If the person cannot afford the services committed, without prejudice to the liability
of counsel, he must be provided with one. of the inviting officer for any violation.
- These rights cannot be waived, except - Police Line-up
In writing and Not considered part of custodial
In the presence of the counsel. investigation because it is conducted before
- No torture, force, violence, threat, that stage of investigation is reached.
intimidation or any other means which Process has not yet shifted from the
vitiate the free will shall be used against investigatory to the accusatory stage.
him. - People vs. Escordial
- Secret detention places, solitary, Out-of-court identification may be made
incommunicado, or other similar forms of in a show-up (where the accused is
detention are prohibited. brought face to face with the witness for
- Any confession or admission obtained in identification) or in a police line-up (where
violation of this or Section 17 shall be the suspect is identified by a witness from a
inadmissible in evidence against him. group of persons gathered for that purpose).
- The law shall provide for penal and civil During custodial investigation, these
sanctions for violations of this section, as have been described as critical
well as compensation to and rehabilitation of confrontations of the accused by the
victims of torture or similar practices, and prosecution necessitating the presence of
their families. counsel. This is because the result of these
- Rights are available only during pre-trial proceedings might well settle the
custodial investigation. fate of the accused and reduce the trial to a
Custodial investigation or in-custody mere formality.
interrogation of accused person: any Merely photographed or paraffin test,
questioning initiated by law enforcement not yet under custodial investigation.
officers after a person has been taken into - Investigations not considered as
custody or otherwise deprived of his custodial interrogations.
freedom of action in any significant way. - Arrested person signs a booking sheer
Investigation ceases to be a general and an arrest report at the police station, he
inquiry into an unsolved crime and direction does not admit the commission of an offense
is aimed upon a particular suspect who has nor confess to any incriminating
been taken into custody and to whom the circumstance. Said booking sheet is merely
police would then direct interrogatory a statement of how the arrest was made and
questions which tend to elicit incriminating has no probative value as an EJ statement of
statements. the person detained.
- Does not apply to spontaneous - Rights guaranteed by this provision
statement5s. refers only to testimonial compulsion.
- Does not apply to - What rights are available
admissions/confessions made by a suspect 1) To remain silent;
before he was placed under custodial No adverse inference from his refusal to
investigation. answer.
- Custodial investigation includes the 2) To competent and independent counsel
practice of issuing an invitation to a (preferably of his own choice; at all stages
person who is investigated in connection of the proceeding);
with an offense he is suspected to have Attaches upon the start of the
investigation;
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Nachura Notes Constitutional Law
28
Nachura Notes Constitutional Law
investigation, but after having been taken (2) He must be warned that he has the right
into custody or otherwise deprived of his to remain silent and that any statement he
liberty and on being interrogated by the makes may be used as evidence against him.
police (3) He must be informed that he has the
To remain silent right to be assisted at all times and have the
Right to counsel presence of an independent and competent
To be informed of such right lawyer, preferably of his own choice.
Not to be subjected to torture, violence, (4) He must be informed that if he has no
threat, intimidation or any other means lawyer or cannot afford one, a lawyer will
which vitiates free will and be provided for him; and that a lawyer may
To have evidence obtained in violation also be engaged by any person in his behalf
of these rights rejected and inadmissible. or may be appointed by the Court upon
2) After the case is filed in court petition of the person or one acting in his
behalf.
To refuse to be a witness
(5) That whether or not the person arrested
Not to have nay prejudice by such has a lawyer, he must be informed that no
refusal custodial investigation in any form shall be
To testify in his own behalf, subject to conducted except in the presence of his
cross-examination counsel or after a valid waiver.
While testifying, refuse to answer an (6) The person arrested must be informed
incriminating question that, at any time, he has the right to
- Waiver communicate or confer by the most
(1) Must be in writing and made in the expedient means with his lawyer, any
presence of the counsel member of his immediate family, or any
(2) No retroactive effect no application to medical doctor, priest or minister chose by
waivers made prior to APRIL 26, 1983, the him or anyone of his immediate family or by
promulgation of Morales. his counsel, or be visited by/confer with
(3) Burden of proof burden of proving duly accredited national or international
valid waiver is with the prosecution. non-governmental organization. It shall be
Presumption that official duty has been the responsibility of the officer to ensure
regularly performed cannot prevail over the that this is accomplished.
presumption of innocence. (7) He must be informed that he has the
(4) What may be waived right to waive any said rights provided it is
Right to remain silent made voluntarily, knowingly and
Right to counsel intelligently, and ensure that he understood
NOT the right to be informed of these the same.
rights. (8) If the person arrested waives his right to
- Guidelines for Arresting/Investigating a lawyer, he must be informed that this must
Officers (People vs. Mahinay) be done in writing and in the presence of the
(1) Person arrested, detained, invited or counsel, otherwise he must be warned that
under custodial investigation must be the waiver is void even if he insists in his
informed in a language known to and waiver and chooses to speak.
understood by him of the reason for his (9) The person arrested must be informed
arrest and must be shown the warrant of that he may indicate in any manner at any
arrest, if any. time or stage of the process that he does not
wish to be questioned with a warning that
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Nachura Notes Constitutional Law
once he makes such indication the police and not having been informed of his
may not interrogate him if the same had not constitutional rights is inadmissible.
yet commenced or the interrogation must People vs. Linsangan: initialed the P10
cease if it had already begun. bill that the police found tucked in his waist.
(10) The person arrested must be Valid. Because possession of marked bills
informed that the initial waiver of his right did not constitute a crime, the subject if the
to remain silent, the right to counsel or to prosecution being his act of selling
any other rights does not bar him from marijuana cigs.
invoking it at any time during the process, - Re-enactment of the Crime before,
regardless of whether he may have answered must be appraised of his constitutional
some questions or volunteered some rights.
statements. - Res Gestae admissible.
(11) He must be informed that any - Waiver of Exclusionary Rule: failure to
statement or evidence, as the case may be, object to offer in evidence.
obtained in violation of any of the foregoing,
inculpatory or exculpatory, in whole or in Right to Bail
part, shall be inadmissible. - All persons except those charged with an
- Exclusionary Rule: offense punishable by RP, when evidence of
Confession/Admission obtained in violation guilt is strong, shall before conviction be
of Section 12 and 17, Article III of the bailable by sufficient sureties or be released
Constitution shall be inadmissible in on recognizance as may be provided by law.
evidence. - The right to bail shall not be impaired
- Confession: declaration made even when the privilege of the writ of
voluntarily and without compulsion or habeas corpus is suspended.
inducement by a person acknowledging that - Excessive bail shall not be required.
he has committed or participated in the - Bail: is the security given for the release
commission of a crime. of a person in custody of the law, furnished
- Any allegation of force, duress, undue by him or a bondsman, conditioned upon his
influence or other forms of involuntariness appearance before any court as may be
in exacting such confession must be proved required.
y clear, convincing and competent evidence - Any person under detention, even if no
by the defense. Otherwise, the confessions formal charge have yet been field, can
full probative value may be used to invoke the right to bail.
demonstrate the guilt of the accused. - When bail is authorized, it should be
- Fruit of the Poisonous Tree: (Justice granted before arraignment, otherwise, the
Frankfurter Nardone vs. US) accused may be precluded from filing a
Once the primary source is shown to motion to quash.
have been unlawfully obtained, any - Exceptions:
secondary or derivative evidence derived 1. when charged with an offense
from it is also inadmissible. punishable by RP (or higher) and evidence
Basis: evidence illegally obtained by the of guilt is strong
State should not be used to gain other 2. traditionally, not available to military
evidence. - Duty of the Court when accused is
- Receipt of Seized Property if signed by charged with an offense punishable by RP or
the accused without assistance of counsel higher.
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Nachura Notes Constitutional Law
Hearing on the motion for bail must be period to appeal, subject to consent of
conducted by the judge. bondsman.
Prosecution must be given an If court imposes penalty of
opportunity to present all the evidences. imprisonment of 6-20 years, accused shall
Applicant having right of cross- be denied bail or bail previously granted
examination and to introduce evidence in cancelled, upon showing by prosecution
rebuttal. that:
If prosecution refuses to adduce 1) The accused is a recidivist, quasi-
evidence or fails to interpose an objection to recidivist, habitual delinquent, or has
the motion for bail, it is still mandatory for committed the crime aggravated by the
the court to conduct a hearing or ask circumstance of reiteration;
searching and clarificatory questions from 2) The accused is found to have previously
which it may infer the strength of the escaped from legal confinement, evaded
evidence of guilt or lack of it. sentence or has violated the conditions of his
- The hearing on the petition for bail need bail without valid justification;
not at all times precede arraignment, 3) The accused committed the offense
because the rule is that a person deprived of while on probation, parole or under
his liberty by virtue of his arrest or voluntary conditional pardon;
surrender may apply for bail as soon as he is 4) Circumstances of the accused or his case
deprived of his liberty, even before a indicate the probability of flight if released
complaint or information is filed against on bail; and
him. 5) Undue risk that during pendency of the
- Courts order granting or refusing bail appeal, the accused may commit another
must contain summary of evidence for the crime.
prosecution. 3) Denied
- The assessment of the evidence Accused is charged with a capital
presented during bail hearing is only for the offense or an offense punishable by RP or
purpose of granting or denying an higher and evidence of guilt is strong.
application for the provisional release of the Principle denying bail to an accused
accused liberal in their approach, not charged with a capital offense where
being a final assessment. evidence of guilt is strong, applies with
- Bail is either: equal force to the appellant who, though
1) A matter of right convicted of an offense not punishable by
Before or after conviction by MeTC, death, RP, or life imprisonment was
MTC MTC in Cities, MCTC nevertheless originally charged with a
Before conviction by RTC of an offense capital offense.
not punishable by death, RP or life - Standards for fixing bail
imprisonment. 1) Financial ability of the accused
2) Judges discretion 2) Nature and circumstances of the offense
Upon conviction by RTC of an offense 3) Penalty for the offense charged
not punishable by death, RP or life 4) Character and reputation of the accused
imprisonment. 5) Penalty for the offense charged
6) Weight of the evidence against him
The court, in its discretion, may allow
7) Age and health
the accused to continue on provisional
8) Probability of appearing at the trial
liberty under the same bail bond during the
9) Forfeiture of other bonds by him
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Nachura Notes Constitutional Law
10) Fact that he was a fugitive from justice - No person shall be held to answer for a
when arrested criminal offense without due process of law.
11) Pendency of other cases in which he is - In all criminal prosecutions,
under bond the accused shall be presumed innocent
- Right to Bail and Extradition until the contrary is proved,
(Government of the U.S. vs. Judge Purungan and shall enjoy the right to be heard by
and Mark Jimenez) himself and counsel,
The constitutional provision on bail to be informed of the nature and cause of
applies only when a person is arrested and accusation against him,
detained for violation of Philippine criminal to have a speedy, impartial and public
laws. It does not apply to extradition trial,
proceedings, because extradition courts do to meet the witnesses face to face, and
not render judgments of acquittal or to have compulsory process to secure the
conviction. attendance of the witnesses and the
It flows from the presumption of production of evidence in his behalf.
innocence in favor of every accused who - After arraignment, trial may proceed
should not be subjected to the loss of notwithstanding the absence of the accused,
freedom unless his guilt is proved beyond provided that he has been duly notified and
reasonable doubt. The constitutional the failure to appear is unjustifiable.
provision on bail will not apply to a case of - Criminal due process:
extradition where the presumption of 1) accused has been heard in a court of
innocence is not an issue. competent jurisdiction
Extradition proceedings are separate and 2) accused is proceeded against under the
distinct from the trial of the offenses for orderly processes of law
which he is charged. 3) accused has been given notice and the
He should apply for bail before the opportunity to be heard
courts trying the criminal cases against him, 4) judgment rendered was within the
not before the extradition court. authority of a constitutional law
After a potential extradite has been - Unreasonable delay in resolving
arrested and placed under custody of the complaint is violation of the right to due
law, bail may be applied for and granted as process and to speedy trial dismissal of
an exception, only after clear and complaint.
convincing showing that Exception: petitioners own acts or
a. Once granted bail, the applicant will not complexity of the issues involved.
be a flight risk or a danger to the - Hearing before an impartial and
community, and disinterested tribunal. Bias must be shown
b. There exists special, humanitarian and by clear and convincing evidence.
compelling circumstances. - Right to a hearing
- Waiver of the Right to Bail personal to - Plea of guilt to a capital offense.
the accused. Mandatory that:
- The right to bail is not impaired by the 1) TC must conduct a searching inquiry
suspension if the privilege of the writ of into the voluntariness of the plea and the full
habeas corpus. comprehension of the consequences;
2) Prosecution should present evidence to
Constitutional Rights of the Accused prove the guilt of the accused and the
precise degree of his culpability; and
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Nachura Notes Constitutional Law
3) Accused must be asked if he desires to Right to counsel during the trial is not
present evidence in his behalf and should be subject to waiver because even the most
allowed to do so if he desires. intelligent or educated man may have no
- The State and the offended party are skill in the science of law, particularly in the
entitled to due process rules of procedure, and without counsel. He
- Presumption of Innocence: every may be convicted not because he is guilty
circumstance favoring the innocence of the but because he does not know how to
accused must be taken into account. establish his innocence.
Will NOT apply if there is some logical Failure of the record to disclose
connection between the fact proved and the affirmatively that the TC advised the
ultimate fact presumed, and the inference of accused of his right to counsel is not
one fact from proof of another shall not be sufficient ground to reverse conviction. The
so unreasonable as to be purely arbitrarily TC must be presumed to have complied with
mandate. the procedure prescribed by law for the
Can be invoked only by an individual hearing and trial of the cases, and such
accused of a criminal offense. presumption can be overcome only by an
Corporate entity has no personality to affirmative showing to the contrary.
invoke the same. - Right to counsel is not indispensable to
- Presumption that official duty was due process of law.
regularly performed cannot, by itself, prevail Exceptions: cannot be waived during
over the constitutional presumption of trial.
innocence. But this is not absolute. Option cannot
Exception: when it is not the sole basis be used to sanction reprehensible dilatory
for conviction. tactics, to trifle with ROC, or prejudice the
- Constitutional presumption may be equally important rights of the State and the
overcome by contrary presumptions based offended party to speedy and adequate
on experience of human conduct. (e.g. justice.
unexplained wealth) - Preference in the choice of counsel
- Circumstantial evidence in order to pertains more aptly and specifically to a
warrant conviction: person under custodial investigation rather
1) More than one circumstance than one who is accused in a criminal
2) Facts from which the inference are prosecution. Such preferential discretion
derived are proven cannot partake of discretion so absolute and
3) Combination of all the circumstances is arbitrary as would make the choice of
such as to produce a conviction beyond counsel refer exclusively to the prediction of
reasonable doubt. the accused.
- Equipose Rule: applicable only when the - General Rule: a client is bound by the
evidence adduced by the parties are evenly mistakes of his lawyer
balanced, in which case the constitutional Exceptions: when the negligence or
presumption of innocence should tilt the incompetence of counsel is deemed gross as
scales in favor of the accused. to have prejudiced the constitutional right of
- Right to be heard by himself and the accused to be heard.
counsel: efficient and truly decisive legal - Right to be informed of the nature and
assistance. cause of accusation against him.
Proceeds from fundamental principle of Reasons:
due process.
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Nachura Notes Constitutional Law
1. furnish the accused with such a - Void for Vagueness Rule: the law is
description of the charge against him as will deemed void where the statute itself is
enable him to prepare for his defense; couched in such indefinite language that it is
2. avail himself of his conviction or not possible for men of ordinary intelligence
acquittal for protection against a further to determine what acts or omissions are
prosecution for the same cause; and punishable.
3. to inform the Court of the facts alleged, - The right to be informed of the nature
so that it may decide whether they are and cause of the accusation against may not
sufficient in law to support a conviction. be waived but the defense may waive the
- When a judge is informed or discovers right to enter a plea and let the court enter a
that an accused is apparently in a condition plea of not guilty.
of insanity or imbecility, it is within his - Indictment must fully state the elements
discretion to investigate the matter. of the specific offenses alleged to have been
- Requisites: The information must state: committed. An accused cannot be convicted
1. name of the accused of an offense, even if duly proven, unless it
2. designation of the offense given by is alleged or necessarily included in the
statute complaint or information.
3. statement of acts or omissions so Different matter if the accused
complained of as constituting the offense themselves refused to be informed of the
4. name of the offended party nature and cause of the accusation against
5. approximate time and date of the them.
commission of the offense - Accused may be convicted of as many
6. place where the offense has been offenses charged in the information and
committed proved during the trial, where he fails to
7. facts and circumstances that have a object to such duplicitous information
bearing on the culpability and liability of the during the arraignment.
accused - Information which lacks certain material
- Every element of the offense must be allegations may sustain a conviction if the
alleged in the complaint or information, accused fails to object to its sufficiency
because the accused is presumed to have no during trial and deficiency is cured by
independent knowledge of the facts that competent evidence presented therein.
constitute the offense charged. - Right to Speedy, Impartial and Public
- Not necessary to state the precise time Trial
when the offense was committed except Speedy Trial
when time is a material ingredient of the Free from vexatious, capricious and
offense. oppressive delays.
- Description not the designation of the Accused entitled to dismissal, equivalent
offense controls. to acquittal, if trial is unreasonably delayed.
- Accused can be convicted only of the Relative subject to reasonable delays
crime alleged or necessarily included in the and postponements arising from illness,
allegations in the information. medical attention, body operations, etc.
- While a TC can hold a joint trial of 2 or Aggrieved party also has the same rights
more criminal case and can render a as the accused.
consolidated decision, it cannot convict the Separate trial is in consonant with the
accused of the complex crime constitutive of right of the accused to a speedy trial.
the various crimes of the 2 informations. RA 8493 (Speedy Trial Act):
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Nachura Notes Constitutional Law
35
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Nachura Notes Constitutional Law
- Upon initiative of the President, the - Unlike right to speedy trial, this right is
Congress may, in the same manner, extend available not only during trial but also when
such proclamation or suspension for a period the case has already been submitted for
to be determined by Congress, if the decision.
invasion or rebellion shall persists and - Right extends to all citizens, including
public safety requires it. those in the military, and covers the period
- SC may review, in appropriate before, during and after trial.
proceeding filed by any citizen, the - Right can be waived failure to
sufficiency of the factual basis for the seasonably assert this right.
proclamation of martial law and the
suspension of the privilege of the HC or the Self-incrimination
extension thereof. - No person shall be compelled to be a
- SC must promulgate its decision w/in 30 witness against himself.
days from filing. - Right is available not only in criminal
- The suspension of the privilege of the prosecutions but also in all other
writ shall apply only to persons charged for government proceedings, including civil
rebellion or offenses inherent in or directly actions and administrative or legislative
connected with invasion. investigations.
- During the suspension of the privilege of - It may be claimed not only by the
the writ, any person thus arrested or detained accused but also by any witness to whom a
shall be judicially charged within 3 days, question calling for an incriminating answer
otherwise he shall be released. is addressed.
- General Rule: it may be invoked only
- Suspension of the privilege does not when and as the question calling for an
suspend the right to bail. incriminating answer is asked. This applies
only to ordinary witness.
Speedy Disposition of Cases In criminal prosecution accused may not
- All persons shall have the right to a be compelled to take the witness stand.
speedy disposition of cases before all Similarly applicable to a respondent in
judicial, quasi-judicial or administrative an administrative proceeding.
bodies. - Scope: not against all compulsion, but
- Not limited to the accused in a criminal testimonial compulsion only. (not the
proceedings, but extends to all cases, inclusion of his body in evidence when it
including civil and administrative cases and may be material)
in all proceedings including judicial and Prohibition extends to the compulsion
quasi-judicial hearings. for the production of documents, papers and
- Like right to speedy trial, this right is chattels that may be used as evidence
violated only when the proceedings are against the witness, except where the State
attended by vexatious, capricious and has a right to inspect the same such as the
oppressive delays or when unjustified books of accounts of corporations, under the
postponements of the trial are asked for and police or taxing power or where a
secured, or when without cause or justifiable government official is required to produce
motive a long period of time is allowed to official documents/public records which are
elapse without the party having his case in their possession.
tried. Also protects the accused against any
attempt to compel him to furnish a specimen
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Nachura Notes Constitutional Law
38
Nachura Notes Constitutional Law
does not attach in preliminary - When the ground for motion to dismiss
investigation. is insufficiency of evidence (grant of
2. filed before a competent court demurrer) equivalent to an acquittal and
mistake has been made in charging the any further prosecution would violate the
proper offense, the first charge shall be constitutional proscription against double
dismissed to pave the way for the filing of jeopardy.
the proper offense. The dismissal of the first - When the proceedings have been
case will not give rise to double jeopardy unreasonably prolonged as to violate the
inasmuch as the court does not have right of the accused to speedy trial double
jurisdiction over the case, jeopardy
3. to which defendant had pleaded - Revival of the case provisionally
no arraignment = no double jeopardy dismissed time-bar for the revival of
grant of motion to quash, filed before the criminal cases provisionally dismissed with
accused makes his plea, can be appealed by the express consent of the accused and with
the prosecution because the accused has not prior notice to the offended party:
yet been placed in jeopardy. 1) 2 years if the offense charged is
4. defendant was previously acquitted or penalized by more than 6 years
convicted, or the case dismissed or imprisonment
otherwise terminated without his express 2) 1 years if the penalty imposed does not
consent exceed 6 years imprisonment or a fine in
promulgation of only one part of the whatever amount
decision is not a bar to the promulgation of - Prohibits the state from appealing or
the other part, the imposition of the criminal filing a petition for review if judgment of
accountability and does not constitute a acquittal that was based on the merits of the
violation of the proscription against double case. Certiorari will lie to correct errors of
jeopardy. judgment.
- Dismissal of action - Double jeopardy provides three related
1. permanent dismissal protections:
1) termination of the case on the merits 1) Against 2nd prosecution for the same
resulting in either conviction or acquittal offense after acquittal;
2) dismissal of the case because of the 2) Against a 2nd prosecution for the same
prosecutions failure to prosecute offense after conviction; and
3) dismissal on the ground of unreasonable 3) Against multiple punishments for the
delay in violation of the right to speedy trial same offense.
2. provisional dismissal dismissal without - Instances when prosecution may appeal
prejudice to reinstatement before order of 1) Prosecution is denied due process, such
dismissal becomes final or to subsequent denial results in loss or lack of jurisdiction
filing of a new information within the and this appeal may be allowed
periods allowed by law. 2) Accused has waived or is estopped from
- Express consent directly given, either invoking his right against double jeopardy
viva voce or in writing, a positive, direct, - No double jeopardy
unequivocal consent requiring no inference 1) Mistrial
or implication to supply its meaning. 2) State is deprived of fair opportunity to
- When dismissal is made at the instance prosecute and prove its case
of the accused, there is no double jeopardy. 3) Dismissal of information/complaint is
purely capricious
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Nachura Notes Constitutional Law
4) Lack of proper notice to be heard c. Law that changes the punishment, and
5) Accused waives or is estopped from inflicts a greater punishment than the law
invoking his right against double jeopardy. annexed to the crime when committed;
6) Dismissal/acquittal is made with grave d. Law that alters legal rules of evidence
abuse of discretion and receives less or different testimony than
- Discharge of co-accused to be utilized as the law required at the time of the
government witness commission of the offense, in order to
- Accused cannot be prosecuted anew for convict the offender;
an identical offense, or for any attempt to e. Law which, assuming to regulate civil
commit the same or frustration thereof, or rights and remedies only, in effect imposes
for any offense which necessarily includes a penalty or the deprivation of a right for
or is necessarily included in the offense something which when done was lawful;
charged in the original complaint or f. Law which deprives a person accused of
information. a crime of some lawful protection to which
- Doctrine of Supervening Event the they have been entitled
accused may still be prosecuted for another Characteristics
offense if a subsequent development a. Retroactive
changes the character of the first indictment b. Works to the prejudice of the accused
under which he may have already been c. Refers to criminal matters
charged or convicted. - Bill of attainder
The conviction of the accused shall not Definition: legislative act that inflicts
be a bar to another prosecution for an punishment without trial.
offense which necessarily includes the Substitutes legislative fiat for a judicial
offense charged in the original complaint or determination of guilt.
information when: It is only when the statute applies either
a. Graver offense developed due to to named individuals or to easily
supervening facts arising from the same act ascertainable members of a group in such a
or omission; way as to inflict punishment on them
b. Facts constituting the graver offense or without judicial trial that it becomes a bill of
were discovered only after the filing of the attainder.
former complaint or information; or Anti-Subversion Act is not a bill of
c. The plea of guilty to a lesser offense was attainder. simply declares that the
made without the consent of the fiscal or the Communist Party is an organized conspiracy
offended party. to overthrow the Government and for
definitional purposes only.
Ex post facto law and Bill of attainder
- No ex post facto law or bill of attainder VII. CITIZENSHIP
shall be enacted. - Definition: membership in a political
- Ex post facto law community which is personal and more or
Kinds less permanent in character.
a. Law that makes criminal an action done - Nationality is membership in any class
before the passage of the law and which was or form of political community. It does not
innocent when done, and punishes such necessarily include the right/privilege of
action; exercising civil or political rights.
b. Law that aggravates a crime, or makes - Modes of acquiring:
it greater than it was when committed; 1) Marriage
40
Nachura Notes Constitutional Law
41
Nachura Notes Constitutional Law
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Nachura Notes Constitutional Law
43
Nachura Notes Constitutional Law
44
Nachura Notes Constitutional Law
45
Nachura Notes Constitutional Law
46
Nachura Notes Constitutional Law
communities, overseas workers and Not include any candidate for elective
professionals, veterans and youth. position, or who lost the immediately
Sectoral Organization: group of citizens preceding election
or a coalition of groups of citizens who No change allowed except:
share similar physical attributes, 1) Dies
characteristics, employment, interest or 2) Withdraws in writing
concern. 3) Becomes incapacitated
Coalition: aggrupation of duly registered Incumbent who are nominate are NOT
national, regional, sectoral parties or considered resigned.
organization for political and/or election - Qualifications of a Party-list nominee
purposes. 1) Natural-born citizen
- Registration/Manifestation to Participate 2) Able to read and write
in the Party-List System 3) Registered voter
90 days prior to election, petition 4) Resident of the Philippines at least 1
verified by its President or Secretary year immediately preceding the day of the
If already registered, file instead a election
manifestation of its desire to participate in 5) Bona fide member of the
the party-list system party/organization which he seeks to
- Refusal and/or Cancellation of represent at least 90 days preceding the day
Registration (motu proprio or upon verified of the election
complaint filed by any interested party; after 6) At least 25 years old at the day of the
due notice and hearing) election
1) Religious sect/denomination 7) Youth sector at least 25 but not more
2) Advocate violence to attain goal than 30. If during his term reaches the age of
3) Foreign party/organization 30, he shall be allowed to continue until
4) Receives support from foreign party/org expiration of term.
5) Declares untruthful statement in its - Manner of Voting every voter entitled
petition to two votes, 1 for member of the House and
6) Violates or fails to comply with election 1 for the party, organization or coalition.
laws, rules and regulations - Number 20% of the total number of
7) Failed to participate in the last 2 the members of the House including those
preceding elections or fails to obtain at least under the party-list.
2% of the votes cast under the party-list In determining the allocation of seats for
system in the 2 preceding elections for the the second vote:
constituency in which it has registered 1) Parties, organizations and coalitions
8) Ceased to exist for at least 1 year shall be ranked from the highest to the
- Nomination of a party-list lowest cased on the number of votes they
representative: each registered party, garnered during the election
organization or coalition must submit a list 2) Parties, organizations and coalitions
of names to the COMELEC not later than 45 receiving at least 2% of the total votes cast
days before the election. for the party-list system shall be entitled to
Not less than 5 1-seat each, those garnering more than 2%
Only persons who have given their of the votes shall be entitled to additional
consent may be included in the list seats in proportion to their total number of
votes
47
Nachura Notes Constitutional Law
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49
Nachura Notes Constitutional Law
the same, excepting such parts as may, in its necessary before the case may be brought to
judgment, affect national security; the Court.
And the yeas and nays on any question Power: sole judge of all contests relating
shall, at the request of 1/5 of the Members to the election, returns and qualifications of
present, be entered in the Journal. their respective members.
Each House shall also keep a Record of HRET may assume jurisdiction only
its proceedings. when after the winning candidate shall have
Matters which under the Constitution are been duly proclaimed, has taken oath of
to be entered in the journal: office, and has assumed functions of the
a. Yeas and nays on 3rd and final reading of office.
a bill Decisions may be reviewed by SC by
b. Veto message of the President showing grave abuse of discretion in a
c. Yeas and nays on the repassing of a bill petition for certiorari filed under R65.
vetoed by the President
d. Yeas and nays on any question at the Commission on Appointment
request of 1/5 of members present. Composition
Enrolled Bill Theory: enrolled bill is one a. Senate President, ex-officio chairman
duly introduced and finally passed by both b. 12 senators
Houses, authenticated by the proper officers c. 12 house
of each and approved by the President. * b and c elected by each House on the basis
Enrolled Bill prevails, except to matters of proportional representation from the
which under the Constitution must be political parties registered.
entered in the Journal. Powers act on all appointments
submitted to it within 30 session days of
Electoral Tribunals Congress from their submission.
Composition Shall rule by majority vote of its
a. 3 SC Justices designated by CJ, the members
senior justice shall be the chairman Meet only while Congress is in session
b. 6 members of the house, chosen on the At the call of its Chairman or majority of
basis of proportional representation from the all its members
political parties registered Independent of the 2 Houses and has the
Non-partisan court; independent of power to promulgate its own rules of
Congress proceedings.
Termination of Membership:
a. Expiration of congressional term
b. Death Powers of Congress
c. Resignation from political party 1. General (plenary) legislative power
d. Formal affiliation to another political - Limitations:
party 1. Substantive
e. Removal for other valid causes - Express
Cannot disqualify senator-member just a. Bill of rights
because election contest is filed against him. b. Appropriations
(Abbas vs. Senate ET) c. Taxation
Doctrine of Primary Administrative d. Constitutional appellate jurisdiction of
Jurisdiction, prior recourse to the House is SC
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e. No law granting a title of royalty or extensive changes in the Senate that the
nobility shall be passed result may be a rewriting of the whole.
- Implied The Constitution does not prohibit the
a. Non-delegation of powers filing in the Senate of a substitute bill in
b. Prohibition against the passage if anticipation of its receipt of the bill from the
irrepealable laws House, so long as the action by the Senate as
2. Procedural a body is withheld pending receipt of the
a. Only one subject to be expressed in the House bill.
title - Procedure: passed 3 readings on separate
- Title is not required to be an index of the days, and printed copies in its final form
contents of the bill have been distributed to its Members 3 days
- Sufficient compliance if the title before its passage EXCEPT when President
expresses the general subject and all the certifies to the necessity of its immediate
provisions of the statute are germane to thee enactment to meet a public calamity or
subject emergency.
- Sufficient if the title is comprehensive Courts are denied the power to inquire
enough, as in this case, to include subjects into allegations that, in enacting a law, a
related to the general purpose which the House of Congress failed to comply with its
statute seeks to achieve. own rules, in the absence of any showing
- Rider is a provision not germane to the that there was a violation of constitutional
subject matter of the bill. requirements or the rights of private
b. Three readings on separate days individuals.
- Printed copies of bill in its final form It is within the Bicameral Conference
distributed to Members 3 days before its Committee to include in its report an
passage entirely new provision that is not found
- EXCEPT when the President certifies to either in the House or Senate bill.
its immediate enactment to meet a public If the Committee can propose an
calamity or emergency amendment consisting of 1 or 2 provisions,
- Upon last reading, no amendment there is no reason why it cannot propose
allowed, and vote thereon taken immediately several provisions, collectively considered
and the yeas and nays entered in the journal as an amendment in the nature of a
- Presidential certification dispensed with substitute so long as the amendment is
the requirement not only of printing but also germane to the subject of the bills before the
that of reading the bill on separate days. Committee.
3. Legislative Process Jurisdiction of the Conference
- Requirements as to bill Committee is not limited to resolving
Only 1 subject to be expressed in the differences between the Senate and the
title House versions of the bill. It may propose an
Appropriation, revenue bills, tariff bills, entirely new provision.
bills of local application, bills authorizing - Approval of Bills
increase of public debts and private bills The bill becomes a law in the following
shall originate exclusively in the House of cases:
Representative. a. President approves the same and signs it.
It is not the law, but the bill, which is b. Congress overrides the Presidential veto
required to originate exclusively in the if the President disapproves the bill, he
House, because the bill may undergo such shall return the same, with his objections
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Nachura Notes Constitutional Law
contained in his Veto message to the House Appropriation law a statute the
of origin (which shall enter the objections at primary and specific purpose of which is to
large in its Journal). The veto is overridden authorize the release of public funds from
upon a vote of 2/3 of all members of the the Treasury.
House of origin and the other House. Yeas Classification:
and Nays entered in the Journal of each 1) General Appropriations Law passed
House. annually, for the financial operations of the
o No pocket veto. government.
o Partial veto, as a rule, is invalid. It is 2) Special Appropriations Law for
allowed only for particular items in an specific purpose
appropriation, revenue or tariff bill. The Implied Limitation on Appropriation
President cannot veto part of an item in an Measures
appropriation bill while approving the 1) Appropriation must be devoted to public
remaining portion of the item. purpose
o Legislative Veto a congressional veto 2) Sum authorized to be released must be
is a means whereby the legislature can block determinate or at least determinable
or modify administrative action taken under Decree do not specify the specific
a statute. It is a form of legislative control in amounts to be paid, the amounts are
the implementation of particular executive nevertheless made certain by the legislative
action. It may be negative (subjecting the parameters provided in the decrees.
executive action to disapproval by The mandate being only to pay the
Congress) or affirmative (requiring approval principal, interest, taxes and other normal
of the executive action by Congress) banking charges.
c. When the President fails to act upon the Constitutional Limitation on Special
bill for 30 days from receipt thereof, the bill Appropriation Measure
shall become a law as if he had signed it. 1) Specify the public purpose for which the
2. Power of Appropriation sum is intended
Spending power called the power of the 2) Must be supported by funds actually
purse belongs to Congress subject only to available as certified to by the National
the veto power of the President. Treasurer or to be raised by a corresponding
It is the President who proposes the revenue proposal included therein.
budget, the final say on the matter of Constitutional Rules on General
appropriation is lodged in Congress. Appropriations Law:
The power of appropriation carries with Congress may not increase the
it the power to specify the project/activity to appropriations recommended by the
be funded under the appropriation law. President for the operation of the
Need for appropriation NO money Government.
shall be paid out of the Treasury except in The form, content and manner of
pursuance of an appropriation made by preparation of the budget shall be prescribed
law. by law.
Indispensable requisites or condition No provision or enactment shall be
sine qua non for the execution of embraced unless it relates specifically to
government contracts: some particular appropriation. Any such
a. Existence of appropriation provision or enactment shall be limited in its
b. Availability of funds operation to the appropriation to which it
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Nachura Notes Constitutional Law
relates. This is intended to prevent riders or can still draw on the reserves if the fiscal
irrelevant provisions included in the bill to outlook improves.
ensure its approval. 3. Power of Taxation
i. Procedure for approving Limitations
appropriations for Congress shall strictly 1. uniform and equitable evolve a
follow the procedure for approving progressive system of taxation
appropriations for other departments and 2. charitable institutions, etc. and all lands,
agencies. (to prevent sub rosa appropriation buildings and improvements actually,
by Congress) directly and exclusively used for religious,
ii. Prohibition against transfer of charitable or educational purposes shall be
appropriations exempt from taxation.
Exception: 3. all revenues and assets of non-stock,
1) President non-profit educational institutions used
2) Senate President directly, actually and exclusively for
3) Speaker educational purposes shall be exempt from
4) Chief Justice taxation.
5) Heads of Constitutional Commission 4. Law granting tax exemptions shall be
By law, be authorized to augment any passed only with concurrence of majority of
item in the general appropriation law for all members of Congress
their respective offices from savings in other 4. Power of Legislative Investigation
items of their respective appropriations. Conduct inquiries in aid of legislation.
iii. Prohibition against appropriation for Rights of persons appearing in or
sectarian benefit affected by such inquiries shall be respected.
Exception: priest, preacher, minister or Limitations
dignitary is assigned to the armed forces or 1. in aid of legislation
to any penal institution or government 2. in accordance with duly published rules
orphanage or leposarium. of procedure
iv. Automatic reappropriation 3. Rights of persons appearing in, or
If Congress failed to pass the general affected by such inquiry shall be respected
appropriations bill for the ensuing year, the Power to punish for contempt: Senate
general appropriations bill for the preceding being a continuing body may order
fiscal year shall be deemed re-enacted until imprisonment for an indefinite period, but
said bill is passed. principles of due process and equal
Impoundment the refusal by the protection will have to be considered.
President for whatever reason to spend funds 5. Question Hour
made available by Congress. It is the failure Heads of the departments may upon their
to spend or obligate budget authority of any own initiative with the consent of the
type. President OR upon the request of wither
Appropriation Reserves the House, as the rules of each House shall
Administrative Code authorizes the Budget provide, appear before and be heard by the
Secretary to establish reserves against House on any matter pertaining to their
appropriations to provide for contingencies departments.
and emergencies which may arise during the Written questions submitted to the
year. Senate P or Speaker, 3 days before the
This is expenditure deferral not scheduled appeared.
suspension, since the agencies concerned
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results without need of any call for a special - Department Secretaries, though alter
session by the President. egos, cannot invoke Presidents immunity
- The joint public session cannot adjourn from suit.
sine die until it has accomplished its
constitutionally mandated task. Prohibitions/Inhibitions
- No constitutional or statutory basis for 1. Not receive any other emoluments from
COMELEC to undertake a separate and an the government or nay other source
unofficial tabulation of results 2. Not hold any other office or
descends to the level of private organization employment, unless provided in this
while using public funds, violates exclusive Constitution
prerogative of NAMFREL and taints - VP may be appointed to the Cabinet
integrity of envelopes containing ER and the without need of confirmation from
ERs themselves. Commission on Appointment
- SC as Presidential Electoral Tribunal - Secretary of Justice is ex-officio member
SC, en banc of Judicial and Bar Council
Sole judge of all contests relating to the - Secretary of Labor ex-officio member
election, returns and qualifications of the of BOD of PEZA
President or VP - Secretary of TC ex-officio Chairman
Promulgate its own rules of PPA and LRTA
- Prohibition must not be construed as
Term of Office: 6 years applying to poses occupied by Executive
- No re-election officials without additional compensation in
- No person who has succeeded as an ex-officio capacity, as provided by law
President and has served for more than 4 and as required by the primary functions of
years shall be qualified for election to the the said officials office. These posts do not
same office at any time comprise any other office but is an
imposition of additional duties and functions
Privileges on said official.
1. Official Residence 3. Not directly or indirectly practice any
2. Salary other profession, participate in any business
- Determined by law or be financially interested in any contract,
- Shall not be decreased during tenure franchise or special privilege
- No increase shall take effect until after 4. Strictly avoid conflict of interest in the
expiration of the term of the incumbent conduct of their office
during which such increase was approved. 5. May not appoint Spouse or Relatives by
3. Immunity from Suit consanguinity or affinity within the fourth
- President is immune from suit civil degree as
- May not be prevented from instituting a a. Members of Constitutional Commissions
suit b. Office of the Ombudsman
- Immune from civil liability c. Secretaries
- After tenure, cannot invoke immunity d. Undersecretaries
from suit for civil damages arising out of e. Chairman/heads of
acts done by him while he was President bureaus/offices/GOCCs/subsidiaries
which was not performed in the exercise of
official duties. Rules on Succession
- Vacancy at the BEGINNING of term
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d. Officers of the armed forces from the Takes effect immediately but ceases to
rank of colonel or naval captain be valid if disapproved by the Commission
e. Other officers whose appointments are on Appointments or upon next adjournment
vested in him in this Constitution of Congress (by-passed through inaction)
- Appoint all other officers of the Intended to prevent interruptions in vital
Government whose appointments are not government services
otherwise provided by law Permanent and cannot be withdrawn by
- Appoint those whom he may be the President once the appointee has
authorized by law to appoint. qualified
- Congress may by law, vest appointment If disapproved by the Commission on
of other officers lower in rank in the Appointments can no longer be extended
a. President alone, a new appointment; decision of the
b. Courts Commission is final and binding
c. Heads of
If by-passed President is free to
departments/agencies/commissions/boards
renew the ad interim appointment
- Appointment: selection, by the authority
- Officials who are appointed by the
vested with the power, of an individual who
President
is to exercise the functions of a given office.
Does NOT require confirmation by COA
Designation: imposition of additional
a. Commissioner of Customs
duties, usually by law, to one who is already
b. Philippine Coast Guard
in public service
c. Chairman of Commission of Human
Commission: written evidence of Rights
appointment d. NLRC Chairman and Commissioners
- Classification of Appointments - Congress cannot by law require
a. Permanent extended to persons confirmation of appointments of government
possessing the requisite eligibility and are officials other than those mentioned in the
protected by security of tenure Constitution
b. Temporary extended to persons - Steps in the Appointing Power
without requisite eligibility, revocable at a. Nomination by President
will, without necessity of just cause or valid b. Confirmation by COA
investigation c. Issuance of the Commission
Not subject to confirmation by - Appointment is deemed complete upon
Commission on Appointment acceptance; pending such acceptance, the
If confirmation erroneously given, will appointment may still be validly withdrawn
not make it a permanent appointment - Discretion of Appointing Authority
Designation is considered only an acting includes the determination of the nature ad
or temporary appointment character of appointment
c. Regular made by President while - In case of vacancy in an office occupied
Congress is in session by an alter ego of the President, e.g.
Takes effect upon confirmation of Department Secretary, the President
Commission on Appointment necessarily appoint the alter ego of his
Once approved, continues until end of choice. Congress, cannot by law, compel the
term of the appointee President to appoint automatically the
undersecretary as his temporary alter ego.
d. Ad interim made by President while An alter ego, temporary or permanent, holds
Congress is not in session a position of great trust and confidence.
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- Must not sacrifice for expediencys sake commission vested with fiscal autonomy
the fundamental requirements of due process should be construed to mean that no
- sin perjuicio judgment without a condition to fund releases to it may be
statement of the facts in support of its imposed.
conclusions, to be later supplemented by the Provision in Section 3, Article VIII,
final judgment. prohibiting the reduction in the
- Designed to prevent delay in the appropriation for the Judiciary below the
administration of justice. amount appropriated for the previous year
- Failure to decide cases within the does not appear in Section 5, Article IX-
prescribed period is not excusable and A. Congress is not prohibited from
constitute gross inefficiency which is a reducing the appropriations Constitutional
ground for administrative sanction against Commissions below the amount
the defaulting judge. appropriated for them for the previous year.
- Judges who cannot comply with this 5. promulgate its own procedural rules,
mandate should ask for additional time, provided they do not diminish, increase or
explaining in their request the reasons for modify substantive rights (subject to
the delay. disapproval by the SC)
- Despite expiration of the mandatory 6. appoint their own officials and
period, the court, without prejudice to such employees in accordance with Civil Service
responsibility as may have been incurred in Law
consequence thereof, shall decide or resolve 7. Chairman and members removed only
the case or matter submitted to it without by impeachment
further delay. 8. Chairman and members are given a
- Court does not lose jurisdiction despite fairly long term of 7 years
the lapse of the mandatory period. 9. Chairman and members may not be
reappointed or appointed in an acting
XI. CONSTITUTIONAL COMMISSION capacity
10. salaries of Chairman and members are
Independent Constitutional Commission relatively high and may not be decreased
1. Civil Service Commission during continuance in office
2. COMELEC 11. Chairman and members are subject to
3. Commission on Audit certain disqualification calculated to
strengthen their integrity
Safeguards Insuring the Independence of the
Commission Inhibitions/Disqualifications
1. constitutionally created, and not be 1. not hold any other office or employment,
abolished by statute during tenure
2. expressly described as independent 2. not engage in the practice of any
3. conferred certain powers and functions profession
which cannot be reduced by statute 3. not engage in the active management or
4. enjoy fiscal autonomy control of any business which in any way
no report, no release policy may not be may be affected by the functions of his
validly enforced against offices vested with office
fiscal autonomy. 4. not be financially interested, directly or
Automatic release of approved annual indirectly, in any contract or in any franchise
appropriations to a constitutional or privilege granted by the Government
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shall remain under permanent status in their with a special contract to undertake a
position. Upon promotion or transfer to specific work or job requiring special or
other CES positions, these incumbents shall technical skills not available in employing
be under temporary status in said other CES agency, to be accomplished within a period
positions until qualify, not exceeding 1 year, under his own
d. Mere fact that a position belongs to the responsibility, with minimum direction and
CES does not automatically confer security supervision
of tenure on the applicant. Such right will 5) Emergency and seasonal personnel
have to depend on the nature of his
appointment which depends on his - Under Administrative Code, the CSC is
eligibility or lack of it. expressly empowered to declare positions in
e. A person who does not have the the CS as primarily confidential.
requisite qualifications for the position - Enumeration in the Civil Service decree,
cannot be appointed. which defined the non-career service is not
- Exception: acting capacity in the an exclusive list
absence of appropriate eligibles.
f. Security of Tenure in the CES pertains Appointments in Civil Service
only to RANK and not to the office or the - According to merit and fitness to be
position to which they may be appointed. determined, as far as practicable by
1) Career executive service eligibility competitive examination
2) Appointment to the appropriate career - Except to positions which are:
executive service rank 1) Policy-determining
2. Non-Career Service 2) Primarily confidential or
a. Description 3) Highly technical
- Entrance on bases other than those of the - Principles
usual tests utilized for the career service 1) Classification of a particular position as
- Tenure policy-determining, primarily confidential or
1) limited to a period specified by law or highly technical amounts to no more than an
2) which is co-terminous with that of the executive or legislative declaration that is
appointing authority or not conclusive upon the courts, the true test
3) subject of his pleasure or being the nature of the position
4) which is limited to the duration of a 2) The exemption provided pertains only to
particular project for which purpose the exemption from competitive examination to
employment was made. determine merit and fitness to enter the civil
b. Includes: service
1) Elective officials, personal and - Exempt from competitive examination to
confidential staff determine merit and fitness:
2) Department Heads and officials of 1) Policy-determining
Cabinet rank who holds office at the Officer lays down principal or
pleasure of the President, personal and fundamental guidelines or rules
confidential staff E.g. department head
3) Chairmen and members of 2) Primarily confidential
commissions/boards w/ fixed terms of Not only confidence in the aptitude if the
office, personal and confidential staff appointee for the duties of the office but
4) Contractual personnel/ those whose primarily close intimacy which ensures
employment in government is in accordance freedom of intercourse without
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Nachura Notes Constitutional Law
embarrassment or freedom from misgivings demands that the position be filled even in a
or betrayal on confidential matters of state temporary capacity.
NATURE of the position which
determined whether a position is primarily Role of the CSC
confidential, policy-determining or highly Check if the appointee possesses the
technical qualifications and appropriate eligibility; if
proximity rule can be considered as he does, appointment is approved; if he
confidential employee if the predominant doesnt, appointment is disapproved.
reason why he was chosen by the appointing Selection or placement is made through
authority was the latters belief that he can the Placement Committee, the members of
share a close intimate relationship with the which are the representatives of the head of
occupant which ensures freedom of the agency as well as representatives of the
discussion without fear of embarrassment or employees. Said Committees work is
misgivings of possible betrayals of personal merely recommendatory.
trust or confidential matters of the State. Appointment should be submitted to the
Where the position occupied is remote CSC w/in 30 days from issuance; otherwise,
from that of the appointing authority, the it shall be ineffective.
element of trust between them is no longer CSC Memorandum Circular only the
predominant, and cannot be classified as appointing authority has the right to
primarily confidential. challenge the CSCs disapproval of an
3) Highly technical requires possession of appointment.
technical skill in a superior degree. Abella, Jr. vs. CSC both the
appointing authority and the appointee are
Discretion of the Appointing Authority the real parties in interest and both have
Where the appointee possesses the legal standing
minimum qualification requirements Challenge to the appointing authoritys
prescribed by law for the position, the discretion
appointing authority has discretion who to While appointee has no vested right to
appoint. the position, it was his elgibility that was
Even if officers and employees in the being questioned; he has a personal stake in
career service of the Civil Service enjoy the outcome
preference in the promotion, it is not
mandatory that the vacancy be filled by Disqualifications
promotion. 1) Lost in any election within 1 year
Discretion of the appointing authority is preceding the appointment
not only in the choice of the person who is 2) Elective official during tenure
to be appointed, but also in the nature or 3) Appointive official, except when
character of the appointment issued. allowed by law or the primary functions of
CSC cannot convert temporary his position
appointment to a permanent one Ex-officio capacity
arrogation of power belonging to appointing
authority. Security of Tenure
May approve as merely temporary an - Removed and suspended for case
appointment intended to be permanent when provided by law.
the appointee does not possess the requisite - Ground, procedure for investigation and
eligibility and the exigency of the service the discipline of career service officers and
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Does not authorize the COMELEC, 2) Votes not cast would affect the result of
motu proprio, without the proper the election
proceedings, to deny due course to cancel a 6) Not authorized to make an unofficial
certificate of candidacy filed in due form. quick count of presidential election results
Election and contests involving election
of Sangguniang Kabataan elections do NOT Exclusive original jurisdiction
fall within jurisdiction of the COMELEC All contests relating to the elections,
DILG returns and qualifications of all elective
Authority to annul results of plebiscite regional, provincial and city officials.
(through pre-proclamation case of revision
of ballots) Exclusive jurisdiction over pre-proclamation
2) Regulatory power over media of cases
transportation, communication and Possible conflict with HR/S ET
information foreclosed by Section 15, RA 7166
to ensure equal opportunity, time, space, prohibits pre-proclamation controversies in
right to reply, etc. national offices (EXCEPT on question
during election period involving the composition and proceedings
exercised only over the media, not over of the Board of Canvassers)
practitioners of media ET over a member only after
3) No pardon, amnesty, parole, etc, for proclamation
violation of election laws shall be granted by
the President without its favorable COMELEC without the power to
recommendation partially/totally annul a proclamation or to
4) COMELEC cannot exercise power of suspend the effects of a proclamation
apportionment without notice and hearing violation of
5) Power to declare failure of election due process clause
The election in any polling place has not
been held on the date fixed on account of Power to issue writs of prohibition,
force majeure, violence, terrorism, fraud or certiorari, etc.
other analogous case In the exercise of its exclusive appellate
The election in any polling place has jurisdiction
been suspended before the hour fixed by law
for the closing of the voting on account of Exclusive appellate jurisdiction
force majeure, violence, terrorism, fraud or All contests involving elective
other analogous case municipal officials decide by RTC
After the voting and during the Elective barangay officials decided by
preparation and transmission of the election MTC
returns or in custody or canvas, such Decisions shall be final, executory and
election results in a failure to elect on unappealable
account of force majeure, violence, Appeal to the COMELEC from RTC
terrorism, fraud or other analogous case. must be filed within 5 days from receipt of a
Petition must show, on its face copy of the decision.
1) No voting has taken place in the precint MR of RTC decision is a prohibited
on the sate fixed by law or even if there was pleading and does not interrupt running of
voting, the result nevertheless results in a period for appeal.
failure to elect
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6) Procure supplies and materials needed and qualified (LGC limits term of barangay
for elections officials to 3 years)
7) Enlist non-partisan groups to assist it
8) Fix periods for pre-election requirements Exclusive original jurisdiction over all pre-
9) Power to declare failure of election; call proclamation cases
for special election GR: COMELEC restricted, in ore-
10) Exclusive original jurisdiction over all proclamation cases, to an examination of the
pre-proclamation cases election returns on their face and is without
jurisdiction to go beyond them and
Power to declare failure of election; call for investigate election irregularities.
special election Exception: duty-bound to investigate
Sitting en banc and by a majority vote of allegations of fraud, terrorism, violence and
its members other analogous cases in an action for
Motu proprio or upon a verified petition annulment of election results or for a
Hearing of the case shall be summary in declaration of failure of elections. (may
nature conduct technical examination of election
Petition to declare a failure of election is documents and analyze signatures and
neither an election protest nor a pre- fingerprints in order to determine whether
proclamation controversy the election has been free, honest and clean)
Validity of an election, it is essential that
the voters have notice in some form, either Party-System - a free and open party-system
actual or constructive, of the time, place and shall be allowed to evolve according to the
purpose. free choice of the people
Time must be authoritatively designated Votes cast in favor of political party,
in advance organization or collation that are
Stricter in cases of special election, at REGISTERED.
least there must be substantial compliance Entitled to appoint poll watchers in
In fixing date of special election: accordance with law.
1) Should not be later than 30 days after the
cessation of the cause of the postponement Election Period
or suspension of the election or failure to Commence 90 days before the day of the
elect election and shall end 30 days thereafter
Not absolute; directory Exception: period fixed by COMELEC
Residual powers to conduct special in special cases
elections even beyond the deadline
prescribed Judicial Review of COMELEC Decisions
2) Reasonably close to the date of the Petition for certiorari (R65)
election not held, suspended, or which Filed with SC
resulted in failure w/in 30 days from receipt of decision of
No law which provides for a COMELEC en banc
reglementary period within which to file a
petition for the annulment of an election if COMMISSION ON AUDIT
there has been no proclamation yet
Legally remain in office in hold-over Composition
capacity until successors have been elected - Chairman
- 2 Commissioners
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were allegedly committed by a public It is not for the court to review the
functionary in connection with his office. Ombudsmans paramount decision in
For purposes of initiating a preliminary prosecuting or dismissing a complaint filed
investigation before the Office of the before his office.
Ombudsman, a complaint in any form or Exception: grave abuse of discretion on
manner is sufficient. the part of the Ombudsman in either
Ombudsman or his deputy is authorized prosecuting or dismissing a case before it is
to preventively suspend any officer or evident.
employee under his authority pending an Case law holds that the Court is loathe to
investigation irrespective of whether such interfere with the exercise by the
officer or employee is employed in the Ombudsman of its powers.
Office of the Ombudsman or in any other While the Office of the Ombudsman has
government agency. the discretion to determine whether an
Whether evidence of guilt is strong to information should be withdrawn and a
warrant preventive suspension is left to the criminal case should be dismissed, and to
determination of the Ombudsman. There is move for the withdrawal of such information
no need for preliminary hearing. or dismissal of a criminal case, the final
Congress can, by statute, prescribe other disposition of the said motion and of the
powers, functions and duties to the case is addressed to the sound discretion of
Ombudsman. the Sandiganbayan, subject only to the
He may utilize the personnel of his caveat that the action of the Sandiganbayan
office to assist in the investigation of the must not impair the substantial rights of the
cases, the Ombudsman may refer cases accused and the right of the people t due
involving non-military personnel for process of law.
investigation by the Deputy Ombudsman for RA 1405 (Law on Secrecy of Bank
Military Affairs. Deposit) before an in camera inspection of
Power to cite for contempt; exercised by bank accounts may be allowed:
the Ombudsman while conducting 1) there must be a pending case before a
preliminary investigation because court of competent jurisdiction
preliminary investigation is an exercise of 2) account must be clearly identified
quasi-judicial functions. 3) inspection limited to the subject matter
Appeals shall be made to the CA in of the pending case before the court
accordance with R43. 4) bank personnel and account holder must
any illegal act or omission of any be notified to be present during the
public official is broad enough to embrace inspection
any crime committed by a public official or 5) inspection may cover only the account
employee. identified in the pending case
Power of the Ombudsman to investigate investigation being done by the
and to prosecute, as granted by law, is Ombudsman is NOT one before a court of
plenary and unqualified. competent jurisdiction
The authority of the Ombudsman to Ombudsman has no authority to directly
investigate is not an exclusive authority, but dismiss a public officer from government
rather a shared or concurrent authority with service
the Department of Justice Panel of Can only recommend to the officer
Investigators, in respect of the offense concerned the removal of a public officer or
charged employee found to be administratively liable
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HOWEVER the refusal, without just required by law, submit a declaration under
cause, of any officer to comply with such an oath of his assets, liabilities and net worth.
order of the Ombudsman to penalize an Declaration shall be disclosed to the
erring officer or employee is a ground for public in the manner provided by law in case
disciplinary action. of:
Special Prosecutor 1) President
Existing Tanodbayan (at the time of the 2) VP
adoption of the 1987 Constitution) shall be 3) Members of the Cabinet
known as the Special Prosecutor. 4) Congress
It shall continue to function and exercise 5) SC
its powers as now or hereafter provided by 6) ConCom
law, except those conferred to the Office of 7) Other constitutional offices
the Ombudsman. 8) Officers of the armed forces of general
or flag rank
Ill-gotten Wealth
Right of the State to recover properties Allegiance to the State and to the
unlawfully acquired by public officials or Constitution
employees, from them or from their Any public officer or employee who
nominees or transferees, shall not be barred seeks to change his citizenship or acquire
by prescription, laches or estoppel. the status of an immigrant of another
Applies only to civil actions for recovery country during his tenure shall be dealt with
of ill-gotten wealth and not to criminal by law.
cases.
XIV. NATIONAL ECONOMY AND
Restriction on Loans PATRIMONY
No loan, guaranty or other form of
financial accommodation for any business Goals
purpose may be granted directly or 1. equitable distribution of opportunities,
indirectly by any government owned or income and wealth
controlled bank or financial institution to 2. sustained increase in amount of goods
(during their tenure): and services, produced by the nation for the
1) President benefit of the people
2) VP 3. expanding productions as the key to
3) Members of the Cabinet raising the quality of life
4) Congress
5) SC For attainment of these goals, the State shall:
6) ConCom Promote industrialization and full
7) Ombudsman employment based on sound agricultural
8) Any firm or entity in which they have development and agrarian reform, through
controlling interest industries that make full and efficient use of
human and natural resources and which are
Statement of Assets, Liabilities and Net competitive in both domestic and foreign
Worth markets.
A public officer or employee shall, upon State shall protect Filipino enterprises
assumption of office and as often as may be from unfair competition and trade practices.
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Natural Resources
All lands of public domain, waters, Dominium: lands held by the State in its
mineral, coal, petroleum and other mineral proprietary character. It may provide for the
oils, all forces of potential energy, fisheries, exploitation and use of lands and other
forests or timber, wildlife, flora and fauna natural resources, including their
and other natural resources are owned by the disposition, except as limited by the
State. Constitution.
With the exception of agricultural lands,
all other natural resources shall not be Citizenship Requirements
alienated. 1. Co-production, joint venture or
Regalian Doctrine: all agricultural, production sharing agreements for
timber and mineral lands are subject to the exploration, development and utilization of
dominion of the State. natural resources
Before any land may be classified from Filipino citizens
the forest group and converted into alienable Corporations at least 60% of whose
or disposable land from agricultural or other capital is Filipino-owned
purposes, there must be positive act from the Agreements shall not exceed 25 years,
Government. renewable for another 25
Absence of proof that property is 2. Use and enjoyment of the nations
privately owned, the presumption is that it marine wealth
belongs to the State. Exclusively to Filipino citizens
Any possession, no matter how lengthy, Protect the rights of subsistence
cannot ripen into ownership. And all lands fishermen, especially of local communities
not otherwise appearing to be clearly within to the preferential use of the communal
private ownership are presumed to belong to marine and fishing resources, both inland
the State. and offshore.
Tasks of administering and disposing Marginal Fisherman individual
lands of public domain belongs to the engaged in fishing whose margin of return
Director of Lands and ultimately the or reward from his harvest of fish, as
Secretary of DENR. measured by existing price levels, is barely
The classification of public lands is an sufficient to yield a profit or cover the cost
exclusive prerogative of the Executive of gathering the fish.
Department through the Office of the Subsistence Fishermen catch yields
President. In the absence of classification, but the irreducible minimum for his
the land remains unclassified public land livelihood.
until released and rendered open for LGC defined marginal farmer or
disposition. fisherman - engaged in the subsistence
farming or fishing which shall be limited to
Forest land is not capable of private
the sale, barter or exchange of agricultural or
appropriation and occupation in the absence
marine products.
of a positive act of the Government
Preferential right granted to them is not
declassifying it into alienable and
absolute.
disposable.
3. Alienable lands of public domain
Imperium: government authority possessed
by the State, embraced in sovereignty and its
capacity to own and acquire property.
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Filipino citizens may acquire not more Public utility: business or service
than 12 hectares by purchase, homestead or engaged in regularly supplying the public
grant OR lease more than 500 hectares with some commodity or service of public
Private corporation may lease not more consequence. Implies public use and service.
than 1,000 hectares for 25 years, renewable All broadcasting, whether radio or
for another 25 years television, is licensed by the Government.
4. Certain areas of investment (as Congress They do not own the airwaves and
shall provide when national interest so frequencies and they are merely given he
dictates) temporary privilege.
Filipino citizens A franchise is a privilege subject to
Corporations at least 60% of whose amendment.
capital is Filipino-owned Joint venture falls within the purview of
Congress may prescribe higher association; if it wishes to engage in the
percentage of Filipino ownership business of operating a public utility, must
Filipino First Policy comply with the 60-40% Filipino-foreign
o positive command which is complete in capitalization requirement.
itself
o needs no further guidelines or Classification of Lands of Public Domain
implementing rules or laws for its operation Lands of public domain are classified
o per se enforceable into:
o Filipinos should be preferred and when 1. agricultural
the Constitution declares that a right exists 2. forest or timber
in certain specified circumstances, an action 3. mineral lands
may be maintained to enforce this right. 4. national parks
5. Franchise, certificate or authorization for Agricultural lands may further be
the operation of a public utility classified by law according to the uses to
Citizens of the Philippines which they may be devoted.
Corporations at least 60% of whose Congress shall determine by law the size
capital is Filipino-owned of the lands of the public domain which may
Franchise, certificate or authorization be acquired, developed, held or leased and
shall not be exclusive nor for a period for conditions therefore.
more than 50 years, and shall be subject to The classification of public lands is a
amendment, alteration or repeal by function of the executive branch of the
Congress. All executive and managing Government Director of the Land
officers must be Filipino citizens. Management Bureau.
No franchisee can demand or acquire The decision of the Director, when
exclusivity in the operation of a public approved by the Secretary of the Department
utility. of Environment and Natural Resources as to
Congress does not have the exclusive questions of fact is conclusive upon the
power to issue such authorization also courts.
administrative bodies. Alienable lands of the public domain
Franchise for the operation of public shall be limited to agricultural lands.
utility does not require a franchise before Forest land cannot be owned by private
one can own the facilities needed to operate persons.
a utility, so long as it does not operate them It is not registrable and possession
to serve the public. thereof, no matter how lengthy, cannot
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Nachura Notes Constitutional Law
convert it into private land, unless the land is applicable, in the disposition or utilization of
reclassified and considered disposable and other natural resources.
alienable. Including lands of the public domain
Foreshore land is that part of the land under lease or concession suitable to
which is between the high and low water, agriculture, subject to prior rights,
and left dry by the flux and reflux of the homestead rights of small settlers, and the
tides. It is part of the alienable and of the rights of indigenous communities to their
public domain and may be disposed of only ancestral lands.
by leased and not otherwise. The State may resettle landless farmers
Private corporations or associations may and farm workers in its own agricultural
not hold such alienable lands of the public estates which shall be distributed to them in
domain except by lease. the manner provided by law.
It would cease to be public land only
upon the issuance of the certificate of title to Private Lands
any Filipino citizen qualified to acquire the - Private lands shall be transferred or
same. conveyed to individuals, corporations or
1973 Constitution cannot impair vested associations qualified to acquire or hold
rights. Where the land was acquired in 1962 lands of the public domain.
when corporations were allowed to acquire - Exception: in cases of hereditary
lands not exceeding 1,024 hectares, the same succession
may be registered in 1982. - Any sale or transfer in violation of the
The 1987 Constitution prohibits private prohibition is null and void.
corporations from acquiring alienable lands - Being an alien, disqualified from
of the public domain. acquiring and owning real property.
Congress shall determine the specific Neither can petitioner recover the money
limit of forest land and national parks, he had spent for the purchase.
marking clearly their boundaries on the Equity, as a rule, will follow the law,
ground. and will not permit to be done indirectly that
The State shall protect the rights of which, because of public policy, cannot be
indigenous cultural communities to their done directly.
ancestral lands to ensure their economic, - Action to recover the property sold filed
social and cultural well being. by the former owner will lie, the pari delicto
ruling having been abandoned.
The Stewardship Concept - The lease for 99 years with a 50-year
The use of property bears a social option to purchase the property if and when
function, and all economic agents shall Wong Heng would be naturalized is a virtual
contribute to the common good, individuals surrender of all rights incident to ownership
and private groups, including corporations, and therefore invalid. (PNB vs. Lui She)
cooperatives and similar collective - Land tenure is not indispensable to the
organizations, shall have the right to own, free exercise of religious profession and
establish and operate economic enterprises, worship.
subject to the duty of the State to promote A religious corporation, controlled by
distributive justice and to intervene when the non-Filipinos, cannot acquire and own lands
common good so demands. even for a religious use or purpose.
For a religious corporation sole to
The State shall apply the principles of
agrarian reform or stewardship, whenever acquire lands, it must appear that at least
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Nachura Notes Constitutional Law
60% of the faithful or its members are Remedies to Recover Private Land from
citizens of the Philippines in order to Disqualified Alien
comply with the citizenship requirement. 1. Escheat Proceedings
This is so regardless of the citizenship of 2. Action for Reversion under Public Land
the incumbent inasmuch as a corporation Act
sole is merely an administrator of the The Director of Lands has the authority
temporalities or properties titled in its name and the specific duty to conduct
and for the benefit of its members. investigation of alleged fraud in obtaining
- Land sold to an alien which was later free patents and the corresponding titles to
transferred to a Filipino citizen or where alienable public lands.
the alien later becomes a Filipino citizen can And if the facts warrant, to file the
no longer be recovered by the vendor corresponding court action for the reversion
because ether is no longer any public policy of the land to the State.
involved. Imprescriptible.
- Exceptions to the Rule: State, alone, which may institute
1. Hereditary Succession reversion proceedings against public lands
Exception: testamentary disposition allegedly acquired through fraud and
2. A natural born citizen of the Philippines misrepresentation.
who has lost his Philippine citizenship may Private parties are without legal standing
be a transferee of private lands at all question the validity of respondents
Filipino citizen may acquire 5,000 title.
square meters of urban land
Property in dispute is still part of the
Filipino citizen may acquire 3,000
public domain, only the State can file suit
hectares of rural land
for reconveyance of such public land.
May be used for residence, business and
The State can be in estoppel by the
for other purposes.
mistakes or errors of its officials or agents.
o Estoppel against the State is not favored;
3. Americans hold valid title to private
lands as against private persons it may be invoked only in rare and unusual
Titles to private lands acquired by such
circumstances.
persons before such date (July 3, 1974) shall o State may not be allowed to deal
be valid as against private persons only) dishonorably or capriciously with its
Transitory Provision of the 1973 citizens.
Constitution. o State may be held in estoppel for
Previous owner may no longer recover irregular acts and mistakes of its officials.
land from an American buyer who o Republic vs. CA, where the State failed
succeeded in obtaining title over the land. to correct and recover the alleged increase in
Only the State has the superior right to the land area of the titles issued, the
the land through the institution of escheat prolonged inaction strongly militates against
proceeding (as a consequence of the its cause, tantamount to laches.
violation of the Constitution) or through an o Laches failure or neglect, for an
action for reversion (as expressly authorized unreasonable and unexplained length of
under the Public Land Act with respect to time, to do that which by exercising due
lands which formerly formed part of the diligence could or should have been done
public domain). earlier.
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Nachura Notes Constitutional Law
88
Nachura Notes Constitutional Law
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Nachura Notes Constitutional Law
- State shall respect the rights of small The power to appoint the Chairman and
property owners. members of the Commission is vested in the
- Urban or rural poor dwellers shall not be President, without need of confirmation by
evicted nor their dwellings demolished, the Commission on Appointments.
Except: in accordance with law and CHR does not enjoy fiscal autonomy. It
in a just and humane manner. does not belong to the species of constituent
- No resettlement of urban or rural commissions.
dwellers shall be undertaken without Powers and Functions:
adequate consideration with them and the 1. jurisdiction or adjudicatory powers and
communities where they are to be located. not meant to be another court or quasi-
judicial agencies in this country
- Eviction of squatters and the demolition 2. may investigate
of their shanties shall be done in accordance receive evidence
with law does not mean that the validity and make findings of fact as regards claimed
legality of demolition or eviction hinges on human rights violations involving civil and
the existence of resettlement area designated political rights
or earmarked by the Government. but fact-finding is not adjudication, and
- Judicial notice of the fact that urban cannot be likened to the judicial function of
reform has become a paramount task of a court of justice, or even a quasi-judicial
Government in view o the acute shortage of agency or official
decent housing in urban areas. 3. cannot issue writs of injunction or a
- Section 19 of the LGC imposes certain restraining order against supposed violators
restriction on the exercise of the power of of human rights, not being a court of justice.
eminent domain/
- RA 7279 provides the order in which XVI. EDUCATION, SCIENCE AND
lands may be acquired for socialized TECHNOLOGY, ARTS CULTURE
housing. AND SPORTS
- Urban tenants right of first refusal (pre-
emptive right), can be exercised only where State Policy
the disputed land is situated in an area priority to education, science and
declared to be an area for priority technology, arts, culture and sports to
development (APD) and an urban land foster patriotism and nationalism
reform zone (ULRZ).
accelerate social progress and
promote total human liberation and
Human Rights
development
The Commission on Human Rights
protect and promote the right of all
Composition citizens to quality education at all levels and
1. Chairman shall take appropriate steps to make such
2. 4 Members education accessible to all.
Qualifications
1. natural-born National Medical Admission Test
2. majority of whom shall be members of (NMAT) ensures quality education for
the Bar future doctors and protect public health by
Term of office and other disqualification making sure of the competence of future
and disabilities of the members shall be medical practitioners.
provided by law.
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Nachura Notes Constitutional Law
91
Nachura Notes Constitutional Law
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Nachura Notes Constitutional Law
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Nachura Notes Constitutional Law
allowed to engage in the advertising by the respective sectors, the seats reserved
industry. for sectoral representative.
ALL EXECUTIVES and MANAGING - Until otherwise provided by Congress,
OFFICERS of such entities must be the President may constitute the
CITIZENS of the Philippines. Metropolitan Authority to be composed of
Advertising entities affected shall have 5 the heads of all local government units
years from the ratification of the compromising the Metropolitan Manila
Constitution to comply on GRADUATED Authority.
and PROPORTIONATE basis with the
minimum Filipino ownership. Career Civil Service
- Career civil service employees separated
XIX. TRANSITORY PROVISION from the service not for cause but as a result
of the reorganization is entitled to
Elections appropriate separation pay and to retirement
- First elections of members of Congress and other benefits according to law in force
2nd Monday of May 1987 at the time of their separation.
- First local elections to be determined In lieu of separation pay, at the option of
by President the employees, they may be considered for
- Synchronization of elections: employment in the government.
Members of Congress and the local Apply to career officers whose
officials first elected shall serve until noon resignation, tendered in line with the
of June 30, 1992. existing policy, had been accepted.
6-year term of the incumbent President
and Vice-President elected in February 7, Sequestration
1986 elections is extended until noon of - Authority to issue sequestration or freeze
June 30, 1992. order relative to the recovery of ill-gotten
Elections for President and Vice- wealth shall remain operative for not more
President, Senators, Members of the House than 18 months after the ratification of this
of Representatives and local office must be Constitution. Congress may extend such
synchronized in 1992. period.
- Sequestration or freeze orders shall be
Existing Laws and Treaties issued upon showing of a prima facie case.
- All existing laws, decrees, Eos, - The corresponding judicial action shall
proclamations, letters of instructions, and be filed within 6 months from ratification of
other executive issuances not inconsistent this Constitution, or, if issued after
with the Constitution shall remain operative ratification within 6 months from such issue.
until amended, repealed or revoked. - The order is deemed automatically lifted
- All existing treaties or international if no judicial action or proceeding is
agreements which have not been ratified commenced.
shall not be renewed or extended without the - No particular description or specification
concurrence of at least 2/3 of all the of the kind or character of judicial action or
members of the Senate. proceeding much less an explicit
requirement for the impleading of the
Reserved Executive Powers corporations sequestered or of the ostensible
- Until a law is passed, the President may owners of the property suspected to be ill-
fill by appointment from a list of nominees gotten.
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Nachura Notes Constitutional Law
- The only qualifying requirement in the sequestration and voting by PCGG while the
Constitution is that the action or proceeding main issue pends with the Sandiganbayan.
be filed for orders of sequestration, freezing Does not apply in cases involving funds
or provisional take-over. of public character
- The action or proceeding must concern The Government is granted the authority
or involve the matter of sequestration, to vote said shares:
freezing or provisional take-over of specific 1. where government shares are taken over
property and should have, as objective, the by private persons or entities who/which
demonstration by competent evidence that registered them in their own names and
the property is indeed ill-gotten wealth 2. where the capitalization or shares that
over which the government has a legitimate were acquired by public funds somehow
claim for recovery and other relief. landed on private hands.
- Mere issuance of the writ of - Sandiganbayan can review the validity
sequestration, without the corresponding of sequestration orders.
service, within the 18-month period, does - Absence of express prohibition, the rule
not comply with the constitutional on amicable settlement or compromise
requirement. agreements in the Civil Code is applicable to
- Lifting of the sequestration orders does PCGG cases before the Sandiganbayan.
not ispo facto mean that sequestrated - PCGGs authority to enter into
property are not ill-gotten. The effect of the compromise agreements involving ill-gotten
lifting will merely be the termination of the wealth and to grant immunity in civil and
role of government as conservator of the criminal cases, without need of prior
property. Congressional approval is sustained.
- Writ of sequestration may be issued only - Penal violations to fall within the
upon authority of at least 2 PCGG jurisdiction of the PCGG:
Commissioners. 1) it must relate to ill-gotten wealth;
- PCGG may not validly delegate its 2) of the late President Marcos, his
authority to sequester. immediate family, relatives, subordinates,
- PCGG cannot perform acts of strict and close associates;
ownership of sequestrated property. PCGG 3) who took advantage of their public
being a mere CONSERVATOR. office and/or power, authority, influence,
Exception: case of take-over of a connections or relationships.
business belonging to the government or - Those not fulfilling the above elements
whose capitalization comes from public are not within the authority of the PCGG but
funds but which landed in private hands. within the jurisdiction of the Ombudsman
- Sequestration does not automatically and other duly authorized investigating
deprive the stockholders of their right to agencies.
vote their shares of stock. Until the main - The invalid preliminary investigation did
sequestration case is resolved, the right to not impair the validity of the criminal
vote the sequestered shares of stocks information or otherwise render them
depends on the 2-tiered tests: defective; much less did not affect the
1. whether there is prima facie evidence jurisdiction of the Court.
showing that the said shares are ill-gotten The only effect is the imposition on the
and thus belong to the State latter of the obligation to suspend the
2. whether there is an immediate danger of proceedings and to require the holding of
dissipation thus necessitating their continued preliminary investigation.
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Nachura Notes Constitutional Law
- A mere allegation in the anti-graft Congress retains control over the LGUs
complaint that the accused is a relative of although significantly reduced under the
then President Marcos will not suffice to Constitution. National legislature is still the
enable the PCGG to take cognizance of the principal of LGUs which cannot defy its will
case. There must, in addition, be a showing or modify or violate it.
that the accused has unlawfully accumulated Power to tax of LGUs which cannot be
wealth by virtue of such close relation with withdrawn by mere statute.
the former President. Any form of autonomy granted to local
- Fact of sequestration alone did not governments will necessarily be limited and
automatically oust the RTC of its confined within the extent allowed by the
jurisdiction. central authority.
- In order that the Sandiganbayans Exercise of local autonomy remains
exclusive jurisdiction may be invoked, the subject to:
PCGG must be a party to the suit. 1. power of control by Congress and
- The Office of the Solicitor General may 2. general supervision by the President
validly call the PCGG for assistance and ask Scope of Presidents supervisory
it to respond to a motion for a bill of powers:
particulars, considering that PCGG has the President can only interfere in the affairs
complete records of the case and, being in and activities of a local government unit if
charge of the investigation, is more he finds that the latter had acted contrary to
knowledgeable and better informed. law;
Cannot interfere in local affairs as long
GENERAL PRINCIPLES
as the concerned local government unit acts
within the parameters of the law and the
Principles of Local Autonomy
Constitution;
Constitutional Provisions
Otherwise, violates the principle of local
The State shall ensure the local autonomy and the doctrine of separation of
autonomy of local governments powers.
The territorial and political subdivisions Liga ng mga Barangay is not subject to
shall enjoy local autonomy the control by the Chief Executive or his
The principle of local autonomy under alter ego.
the 1987 Constitution simply means
DECENTRALIZATION. Corporation
It does not make the local government Artificial being created by operation of
sovereign within the state or an imperium in law, having the right of succession and the
iperio. powers, attributes and properties expressly
Autonomy is either: authorized by law or incident to its
1. decentralization of administration existence.
no valid constitutional challenge
delegation of administrative powers to Classification
broaden the base of governmental power. 1. Public: organized for the government of
2. decentralization of power a portion of a state.
abdication by the national government of 2. Private: formed for some private
political power in favor of the local purpose.
government
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Nachura Notes Constitutional Law
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Nachura Notes Constitutional Law
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Nachura Notes Constitutional Law
Not de facto municipal corporations, case of doubt, any question shall be resolved
because there was no law authorizing in favor of devolution of power.
incorporation. 2. Any tax ordinance or revenue measure
shall be construed strictly against the LGU
Attack Against Invalidity of Incorporation enacting it and liberally in favor if the
No collateral attack taxpayer.
Inquiry into the legal existence of a 3. Any tax exemption, incentive or relief
municipal corporation is reserved to the state granted by any LGU shall be construed
in a proceeding for quo warranto or other strictly against the person claiming it.
direct proceeding. 4. The general welfare provision shall be
Rule is applicable only when the liberally interpreted to give more powers to
municipal corporation is at least a de facto LGUs in accelerating economic
municipal corporation development and upgrading the quality of
life for the people in the community.
The Local Government Code 5. Rights and obligations existing on the
Effectivity: January 1, 1992; after its date of effectivity of this Code and arising
complete publication in at least 1 newspaper out of contracts or any other source of
of general circulation. prestation involving a LGU shall be
Scope of Application: all provinces, governed by the original terms and
cities, municipalities, barangays and other conditions of said contracts or the law force
political subdivisions as may be created by at the time of such rights were vested.
law and to officials, offices or agencies of 6. In the resolution of controversies arising
the National Government. under this Code where no legal provision of
jurisprudence applies, resort may be had to
Declaration of Policy the customs and traditions in the place
1. Territorial and political subdivision of where the controversies take place.
the State shall enjoy genuine and meaningful
local autonomy to enable them to attain their II. GENERAL POWERS AND
fullest development as self-reliant ATTRIBUTES OF LOCAL
communities and make them more effective GOVERNMENT UNITS
partners in the attainment of national goals.
2. Ensure accountability of LGUs through Powers in General
the institution of effective mechanisms of
recall, initiative and reference. Sources
3. Require all national agencies and offices 1. Philippine Constitution
to conduct periodic consultations with 2. Statutes
appropriate LGUs, non-governmental and 3. Charter
peoples organizations and other concerned 4. Doctrine of the right of self-government
sectors of the community before any project
or program is implemented in their Classification
respective jurisdiction. 1. express, implied, inherent
2. public, governmental, private or
Rules of Interpretation proprietary
1. Any provision on a power of a LGU 3. intramural, extramural
shall be liberally interpreted in its favor; in 4. mandatory, directory, ministerial,
discretionary
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Nachura Notes Constitutional Law
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Nachura Notes Constitutional Law
- Continue exercising the powers and released to them without need of any further
discharge the duties and functions currently action
vested upon them To have an equitable share in the
- Discharge the functions and proceeds from the utilization and
responsibilities of national agencies and development of the national wealth and
others devolved upon them resources with their respective territorial
- Exercise such other powers and jurisdictions
discharge such other functions as are Develop, lease, encumber, alienate or
necessary, appropriate or incidental to otherwise dispose of real or personal
efficient and effective provision of the basic property held by them in their proprietary
services and facilities. capacity and to apply their resources and
- PUBLIC WORKS and assets for productive, developmental or
INFRASTRUCTURE PROJECTS and other proprietary powers and functions and
FACILITIES, PROGRAMS and thereby ensure their development into self-
SERVICES FUNDED BY THE reliant communities and active participants
NATIONAL GOVERNMENT are NOT in the attainment of national goals.
covered under Section 17 EXCEPT where LGUs have no power to tax
the LGU is duly designated as the instrumentalities of the National
implementing agency for such projects, Government, e.g. PAGCOR
facilities, programs and services. Fundamental Principles governing the
- Devolution: act by which the national exercise of taxing and other revenue-raising
government confers power and authority powers of LGUs
upon various LGUs to perform specific 1. Taxation shall be uniform in all LGUs
function and responsibilities, 2. Taxes, fees, charges and other
Includes the transfer of assets, impositions shall be
equipments, records and personnel of equitable based as far as practicable on
national agencies and offices to LGUs the taxpayers ability to pay;
Regional offices of national agencies levied and collected only for public
shall be phased out within 1 years from purpose;
approval of Code. not unjust, excessive, oppressive or
Career regional director which cannot be confiscatory; and
absorbed by the LGU shall be retained by not contrary to law, public policy,
the national government w/o diminution. national economic policy or in restrain of
trade;
Power to Generate and Apply Resources 3. collection of taxes, fees, charges and
Establish an organization that shall be other impositions shall not be left to any
responsible for the efficient and effective private person
implementation of their development plans, 4. revenue collected shall inure solely to
programs, objectives and priorities the benefit and be subject to the disposition
To create their own sources of revenue by the LGU, unless specifically provided
To levy taxes, fees and charges which herein
shall accrue exclusively to their own use and 5. each LGU shall evolve a progressive
disposition and which shall be retained by system of taxation.
them Exercise by LGU of the power to tax is
To have a just share in the national taxes ordained by the Constitution; only
which shall be automatically and directly guidelines and limitations that may be
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Nachura Notes Constitutional Law
established by Congress can define and strategies in order to optimize the utilization
limits such power of local governments. of resources and to avoid duplication in the
Secretary of Justice can review the use of fiscal and physical resources
constitutionality or legality of tax ordinance 9. local budgets shall operationalize
and if warranted, revoke it on either approved local development plans
grounds 10. LGUs shall ensure that theirs respective
Exemption may be withdrawn at the budget incorporate the requirements of
pleasure of the taxing authority. their component units and provide for
Exception: where the exemption was equitable allocation of resources among
granted to private parties based on material those
consideration of a mutual nature, which then 11. national planning shall be based on local
becomes contractual and is covered by the planning
non-impairment clause of the Constitution. 12. fiscal responsibility shall be shared by
Fundamental Principles governing all those exercising authority over financial
financial affairs, transactions and operations affairs, transactions and operations of the
of the local government: LGUs
1. no money shall be paid out of the local 13. the LGU shall endeavor to have a
treasury EXCEPT in pursuance of balanced budget in each fiscal year of
appropriation ordinance or law operation
2. local government funds and monies shall
be spent solely for public purpose Eminent Domain
3. local revenue is generated only from - Through chief executive and acting
sources expressly authorized by law or pursuant to an ordinance
ordinance and collection shall at all times be - For public purpose/use/welfare, for the
acknowledged properly benefit of the poor and landless
4. all monies officially received by a local - Payment of just compensation
government officer in any capacity shall be - Valid and definite offer has been
accounted for as local funds unless previously made to the owners and such
otherwise provided by law offer was not accepted
5. trust funds in the local treasury shall - LGU may immediately take possession:
not be paid out except in fulfillment of the 1. upon filing of the expropriation and
purpose for which the trust was created or 2. making a deposit with the proper court
the funds received of at least 15% of the FMV of the property
6. every officer of the LGU whose duties based on current tax declaration of the
permit or require the possession or custody property
of local funds shall be properly bonded and - Amount to be paid for the property shall
such officer shall be accountable and be determined by proper court based on
responsible for said funds and for FMV at the time of TAKING of the
safekeeping property.
7. local governments shall formulate sound - Additional Limitations
financial plans and the local budgets shall 1. exercised by local chief executive,
be based on functions, activities and projects pursuant to VALID ordinance
in terms of expected results 2. public use or purpose or welfare, for the
8. local budget plans and goals shall, as far benefit of the poor and landless
as practicable, be harmonized with 3. after valid and definite offer has been
national development plans, goals, made to and not accepted by the owner
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Town plazas are properties of public Authority to negotiate and secure grants
domain; they may be occupied temporarily Local chief executive upon authority of
but only for the duration of an emergency the sangguinian
Public Plaza is beyond the commerce of Negotiate and secure financial grants or
man and cannot be the subject of lease or donations in kind
other contractual undertaking In support of the basic services and
Public streets or thoroughfares are facilities in Section 17
property for public use, outside the From local and foreign assistance
commerce of man and may not be the agencies
subject of lease or other contracts Without necessity of securing clearance
Procurement of supplies is made through or approval from any department, agency, or
public competitive bidding office of the national government or from
o Exception: amount is minimal any higher LGU
Provided, projects financed by such
Power to enter into contracts grant or assistance with national security
Requisites of Valid Municipal Contracts implications shall be approved by the
1. LGU has the express, implied or national agency concerned.
inherent power to enter into the particular
contract To exercise such other powers as are granted
2. The contract is entered into by the to corporations, subject to limitations
proper department, board, committee, provided in the Code and other laws
officer, or agent.
o Unless otherwise provided, no contract III. MUNICIPAL LIABILITY
may be entered into by the local chief
executive without prior authorization by the Rule: LGUs and their officials are NOT
sangguinian concerned. exempt from liability for DEATH or
3. comply with substantive requirements INJURY to persons or DAMAGE to
4. comply with formal requirements property
Ultra Vires Contracts: contracts entered
into without compliance with first and third Specific Provisions Making LGUs liable:
requisites ultra vires and void. 1. Article 2189, CC: The LGU is liable in
Cannot be ratified or validated. damages for death or injuries suffered by
Ratification of defective municipal reason of the DEFECTIVE CONDITION of
contracts is possible only when there is non- roads, streets, bridges, public buildings and
compliance with the 2nd and/or 4th requisite. other public works.
Does not provide that the absence of an Attaches even if the road does not
appropriation ordinance ipso facto makes a belong to the LGU, provided that the City
contract entered into by a LGU null and exercises control or supervision over said
void. Public funds may be disbursed not road.
only pursuant to an appropriation law, but 2. Article 2180, CC: The State is
also pursuant of other specific statutory responsible when it acts through special
authority. agents
Police power prevails over non- 3. Article 34, CC: The LGU is subsidiarily
impairment clause. liable for damages suffered by a person by
Breach of contractual obligations city reason of the FAILURE or REFUSAL of a
liable for damages member of the POLICE FORCE to render
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aid and protection in case of danger to life 2. a private indivisual who deals with a
and property. municipal corporation is imputed
constructive knowledge of the extent of the
Liability for Tort decisions PRIOR to power o authority of the municipal
LGC corporation to enter into contracts.
1. if a LGU is engaged in 3. ordinarily, estoppel does not lie against
GOVERNMENTAL functions, it is NOT the municipal corporation.
liable 4. Doctrine of Implied Municipal Liability:
2. if a LGU is engaged in proprietary a municipality may become obligated upon
function, it is liable an implied contract to pay the reasonable
City is liable for the tortuous acts of its value of the benefits accepted or
employees under the principle of respondeat appropriated by it as to which it has the
superior general power to contract.
3. Liability for illegal dismissal of Applies to all cases where money or
employee property of a party is received under such
Absent proof of malice or bad faith circumstances that the general law,
which attended the illegal dismissal cannot independent of an express contract, implies
be held personally accountable an obligation to do justice with respect to the
Municipal corporation, whether or not same.
included in the complaint for recovery of Cannot set up plea that it is ultra vires
back salaries due to wrongful removal from but still retain the benefits.
office is liable EStoppel cannot be applied against a
4. Local officials may be held personally municipal corporation in order to validate a
liable contract which the municipal corporation
Acted beyond the scope of their has no power to make or which it is
authority and with bad faith authorized to make only under prescribed
Must be sued in their personal capacity limitations or in a prescribed mode or
When they act maliciously and wantonly manner even if the municipal corporation
and injure individuals rather than discharged has accepted benefits.
a public duty, they are personally liable. If a suit is filed against a local official
which could result in personal liability, the
Liability for Violation of the Law latter may engage the services of private
1. closed part of a municipal street without counsel.
indemnification liable for damages
2. non-payment of minimum wage to IV. LOCAL OFFICIALS
employees
3. refusal to abide by the TRO Provisions applicable to elective and
appointive local officials
Liability for Contracts 1. Prohibited Business and Pecuniary
1. Rule: A municipal corporation, like an Interest
ordinary person, is liable on a contract it Unlawful for any local government
enters into, provided that the contract is intra official/EE, directly or indirectly, to:
vires. 1. engage in any business transaction with
If the contract is utra vires, the municipal the LGU which he is an official or employee
corporation is not liable. or over which he has the power of
supervisions
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2. hold such interest in any cockpit or other emergency. Provided they do not derive
games licensed by the LGU monetary compensation.
3. purchase any real estate or other
property forfeited in favor of the LGU for 3. Prohibition Against Appointment
unpaid taxes or by virtue of legal process at 1. not eligible for appointment/designation
the instance of LGU in any capacity to any public office/position
4. be a surety for any person contracting or during his tenure.
doing business with the LGU for which a Shall not hold any other office or
surety is required employment in the government, unless
5. possess or use any public property of the otherwise allowed by law or the primary
LGU for private purpose functions of the office.
6. prohibitions and inhibitions prescribed in 2. no candidate who lost in any election
RA 6713 shall, within one year after such election be
appointed to any office in the government
2. Practice of Profession Except: losing candidates in barangay
1. GOVERNORS, CITY and MUNICIPAL elections
MAYORS are prohibited from practicing
their profession or engaging in any Elective Local Officials
occupation other than the exercise of their Qualifications
function. 1. CITIZENS of the Philippines
2. SANGGUNIAN MEMBERS may 2. REGISTERED VOTER in the barangay,
practice their profession, engage in any municipality, city, province
occupation, or teach in schools EXCEPT or in case of a member of the
during session hours. Sangguniang Panlalawigan, Panlungsod or
Provide that those who are also Bayan the district where he intends to be
MEMBERS of the BAR shall NOT: elected.
1. appear as counsel before any court in 3. RESIDENT therein for at least 1 year
any civil case wherein the LGU is the immediately preceding the election
adverse party 4. able to read and write Filipino or any
2. appear as counsel in any criminal case other local language or dialect
wherein an officer or EE of the national or 5. on election day, must be at least
local government is accused of an offense 25 governor, vice-gov, members of the
committed in relation to his office sangguniang panlalawigan, mayor, vice-
3. collect any fee for their appearance in mayor or members of the sangguniang
administrative proceedings involving the panlungsod of highly urbanized cities
LGU 21 mayor, vice-mayor of independent
4. use property and personnel of the component cities, component cities or
government except when the sanggunian municipalities
member is defending the interest of the
18 members of the sangguniang
government.
panlungsod or sangguniang bayan or punong
Prohibition against private practice, if barangay or member of the sangguiniang
such practice represents interests adverse to barangy
the government.
At least 15 but not more than 21
3. DOCTORS of medicine may practice
sangguniang kabataan
their profession even during OFFICIAL
HOURS of work only on occasions of
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Governor/City or Muncipal
Mayor/Punong Barangay is temporarily Compensation
incapacitated, due to but not limited to: determined by the Sanggunian
1. leave of absence concerned
2. travel abroad elective barangay official:
3. suspension from office 1. honoraria
2. allowances and other emoluments,
vice governor/city or municipal vice- which in no case less that P1,000/month for
mayor or the highest ranking sanggunian the punong barangay and P600 for the
barangay member shall automatically sangguniang barangay members
exercise the powers and perform the duties Elective local officials entitled to the
EXCEPT: same leave privileges as those enjoyed by
1. power to appoint appointive local officials, including
2. power to suspend cumulation and commutation
3. power to dismiss
* which can be exercised only if the period Resignation
of temporary incapacity exceeds 30 working - deemed effective upon acceptance by the
days. ff:
1. President governor/vice-
- Temporary incapacity shall terminate gov/mayor/vice-mayor of highly urbanized
upon submission to the appropriate cities and independent component cities
sanggunian of a written declaration that he 2. Governor municipal mayors/vice-
has reported back to office. mayors/city mayors/vice-mayors of
- If temporary incapacity due to legal component cities
causes shall also submit necessary 3. Sanggunian concerned sanggunian
documents showing that legal cause no members
longer exists. 4. city or municipal mayor barangay
officials
If local chief executive traveling within the
country but outside his territorial jurisdiction - resignation is deemed accepted if not
for a period not exceeding 3 consecutive acted upon within 15 working days from
days, he may designate in writing the receipt
officer-in-charge of the office. - irrevocable resignations by sanggunian
- Such shall specify the powers and members shall be deemed accepeted upon
functions 1. presentation before an open session
- If the local chief executive refuses to 2. duly entered un its record
issue such authorization, the vice 3. EXCEPT: where sangguniang members
governor/city or municipal vice-mayor or are subject to recall elections or to cases
the highest ranking sanggunian barangay where existing laws prescribe the manner of
member shall have the right to assume on acting upon such resignations.
the 4th day of the absence of the local chief
executive EXCEPT Grievance Procedure
- Local chief executive shall establish
1. power to appoint procedure
2. power to suspend
3. power to dismiss Discipline
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- Operational supervision of local chief LGU, through local chief executive with
executive police force, fire protection concurrence of sanggunian, provide
unit and jail management personnel assistance financial or otherwise to
Peoples and Non-Governmental
Inter-Local Government Relations Organizations for economic, socially-
- Province through Governor oriented, environmental or cultural projects
Ensure that every component city and to be implemented within its territorial
municipality within its territorial jurisdiction jurisdiction.
acts within the scope of its prescribed
powers Mandated Local Agencies
Highly urbanized cities and independent 1. Local School Board
component cities shall be independent of the 2. Local Health Board
province. 3. Local Development Council
Governor shall review a; Eos 4. Local Peace and Order Council
promulgated by the component city or
municipal mayor within its jurisdiction. Settlement of Boundary Disputes
The city or municipal mayor shall 1. Boundary Disputes between and among
review all EOs promulgated by the punong LGUs
barangay within his jurisdiction. Settled amicably
Failure to act w/in 30 days from Rules
submission deemed consistent with law a. Involving 2 or more barangays in the
and therefore valid. same city/municipality referred to
- In the absence of a municipal legal Sangguniang Panlungsod or Sangguniang
officer, municipal government may secure Bayan
opinion of provincial legal officer; absence b. Incolving 2 or more municipalities in the
of the latter, provincial prosecutor. same province referred to Sangguniang
- City or Municipal Mayor exercise Panlalawigan
general supervision over component c. Involving municipalities or component
barangays cities in different provinces jointly referred
- LGUs may through appropriate to the sanggunians of the provinces
ordinance group themselves, consolidate or d. Involving a component city or
coordinate their efforts/services/resources municipality on the one hand and a highly
for purposes commonly beneficial to them. urbanized city on the other, or 2 or more
highly urbanized cities jointly referred to
Contribute fund upon approval by
the respective sanggunians of the parties
sanggunian after public hearing
2. Sanggunian fails to effect a settlement
Peoples and Non-Governmental
within 60 days from the date the dispute was
Organizations
referred to it, it shall issue a certification.
LGUs shall promote their establishment 3. Dispute shall then be formally tried by
to become active partners in the pursuit of the sanggunian, which shall decide the issue
local autonomy. within 60 days from the date of the
LGUs may enter into joint ventures and certification.
other cooperative arrangements with 4. within the time and manner prescribed
Peoples and Non-Governmental by the ROC, any party may elevate the
Organizations to engage in the delivery of decision of the sanggunian concerned to the
basic services.
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proper RTC having jurisdiction over the area Two or more propositions may be submitted
in dispute which shall decide the appeal in an initiative. The COMELEC or
within 1 year from filing. designated representative shall extend
5. Settlement of boundary dispute between assistance in the formulation of the
a municipality and an independent proposition.
component city in the same province 4. Proponents collect the required number
RTC in the province that can adjudicate the of signatures within
controversy. 90 days in case of provinces and cities
6. The boundaries must be clear for they 60 days in case of municipalities
define the limits of the territorial jurisdiction 30 days in case of barangays
of the LGU. It can legitimately exercise From NOTICE
powers of government only within the limits 5. The petition shall be signed before the
of its territorial jurisdiction. Beyond these election registrar or his representative, in
limits, its acts are ultra vires. the presence if the a representative of a
proponent and a representative of the
VI. LOCAL INITIATIVE AND sanggunian in a public place in the local
REFERENDUM government unit.
6. Lapse of the period, COMELEC shall
Local Initiative certify as to whether the required the
It is the legal process whereby the number of signatures has been obtained.
registered voters of a local government unit Failure to obtain the required number of
may directly propose, enact or amend any signatures. Failure to obtain the required
ordinance. number of signatures defeats the
It may be exercised by all registered proposition.
voters. 7. If required number is obtained, the
COMELEC shall set a date for the initiative
Procedure during which the proposition is submitted to
1. Petition filed with the sanggunian the registered voters for their approval:
proposing the adoption, enactment, repeal or w/in 60 days in case of provinces
amendment of an ordinance w/in 45 days in case of municipalities
Not less than 2,000 registered voters in w/in 30 days in case of barangays
the region from date of CERTIFICATION by
Not less than 1,000 registered voters in COMELEC.
cases of provinces and cities The initiative shall be held on the date set,
Not less than 100 voters in case of after which the results shall be certified and
municipalities proclaimed by the COMELEC.
Not less than 50 voters in case of 8. If the proposition is approved by a
barangays majority of the votes cast, it shall take effect
2. If no favorable action taken, within 30 15 days after certification by the
days from presentation, the proponents COMELEC.
through their duly authorized and registered
representatives, may invoke their power of Limitations
initiative, giving notice to the sanggunian On Local Initiative
concerned. 1. not be exercised more than once a year
3. The proposition shall be numbered
serially starting from Roman Numeral I.
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And for ventilating, articulating and o In the exercise of its exclusive appellate
crystallizing issues affecting barangay jurisdiction, COMELEC has the power to
government administration and securing, issue writs of prohibition, mandamus or
through proper and legal means, solutions. certiorari.
Liga is empowered to create such other In the absence of any express provision,
positions as may be deemed necessary. RTC, a court of general jurisdiction, has
jurisdiction over controversies involving
League of Municipalities election of members of the Sangguniang
Organized for the primary purpose of Kabataan.
ventilating, articulating and crystallizing Decision in appealed cases involving
issues affecting municipal government elective municipal and barangay officials
administration, and securing through proper raised to SC via SCA for certiorari on the
and legal means, solutions. ground that COMELECs factual finding is
marred by grave abuse of discretion.
XII. ELECTION CONTESTS Review of a decision of the Electoral
Tribunal is possible only in the exercise of
Jurisdiction over Election Contests supervisory or extraordinary jurisdiction,
Original and Exclusive and only upon showing that the Tribunals
1. President/VP SC error results from whimsical, capricious,
2. Senator Senate ET unwarranted, arbitrary or despotic exercise
3. Representative HRET of power.
4. Regional/Provincial/City COMELEC Purposes of election contests cognizable
5. Municipal RTC by Electoral Tribunal HRET rules of
6. Barangay MTC/MeTC procedure prevail over provisions of the
Omnibus Election Code
Appellate
Decision of RTC/MTC/MeTC = Actions which may be Filed
exclusively to COMELEC, whose decision 1. Election Protest
shall be final, executory and unappealable. 2. Quo Warranto
Election Contests for Municipal Offices:
o Filed with RTC shall be decided Election Protest
expeditiously. Requisites:
o Decision may be appealed to 1. filed by any candidate who has filed a
COMELEC w/in 5 days from promulgation certificate of candidacy and has been vote
or receipt of copy by the aggrieved party. upon for the same office.
o COMELEC shall decide appeal within 2. on grounds of fraud, terrorism,
irregularities or illegal acts committed
60 days after it is submitted for decision, but
before, during or after casting and counting
not later than 6 months after the filing of the
of votes
appeal, which decision shall be final,
executory and unappealable. rights of contending parties must yield to
o MR is a prohibited pleading. the far greater interest of the citizens in
upholding the sanctity of the ballot.
o COMELEC cannot deprive RTC of its
COMELEC cannot simply close its eyes
competence to order EXECUTION of its
to the illegality of the ballots, even if the
decision PENDING APPEAL, being a
protestant omitted to raise the ground in his
judicial prerogative and there being no law
protest.
disauthorizing the same.
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Handwriting even without the use of COMELEC may not entertain a counter-
experts; being an internal matter. protest filed beyond the reglementary period
Order regarding the revision of ballots is to file the same
an interlocutory order requires a party to Petition or protest contesting the election
perform certain acts leading to the final of a barangay official should be decided by
adjudication of the case. the MTC/MeTC w/in 15 dyas from filing.
General Rule: The filing of an election
protest or quo warranto precludes the Payment of Docket Fees
subsequent filing of a pre-proclamation o Pay docket fee of )300
controversy or amounts to an abandonment o Additional docket fees for damages
of one earlier filed, depriving the o Failure to pay, protest should be
COMELEC of the authority to inquire into dismissed
and pass upon the title of the protestee or the
validity of the proclamation. Requirement for Certificate of Absence
o Exceptions: of Forum Shopping
1. Board of Canvassers was improperly
constituted. Death of Protestant
2. Quo Warranto is not the proper remedy. o Does not extinguish election protest.
3. What was filed was not really a petition o Imbued with public interest involves
for quo warranto or an election protest but a not only adjudication of the private interest
petition to annul a proclamation of the rival candidates but also the
4. filing of an election contest was paramount need of dispelling once and for
expressly made without prejudice to the pre- all the uncertainty that beclouds the real
proclamation controversy or was made in ad choice of the electorate with respect to who
cautelam shall discharge the prerogatives of the
5. proclamation was null and void (in office.
which case the pre-proclamation case is not o If persons not real parties in interest in
rendered moot) the action could be allowed to intervene,
general denial does not amount to an proceedings will be unnecessarily
admission of the material allegations in the complicated, expensive and interminable.
protest.
Failure to commence the revision of Quo Warranto
ballots in the counter-protested precincts is Requisites:
deemed a waiver of his counter-protest. 1. filed by any registered voter in the
Omissions are merely administrative constituency
lapses, error to nullify election results in the 2. grounds of ineligibility or disloyalty to
absence of clear showing of fraud. the Republic
3. w/in 10 days from proclamation of the 3. w/in 10 days from proclamation
results of the election
period for filing election protest is Distinction between Quo Warranto in
suspended while pre-proclamation case is elective and appointive office
pending. 1. Elective Office
After 5 days from Proclamation files - Issue is the eligibility of the officer-elect
appeal in pre-proclamation case only 5 - Court/tribunal cannot declare protestant
days left to file election protest. or the candidate who obtained the 2nd highest
number of votes as having been elected.
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There must be a final judgment of Filed before expiration of the period for
disqualification before the election in order appeal.
that the votes of the disqualified candidate
can be considered stray. Award of Damages
In voting for a candidate who has not Actual and compensatory damages may
been disqualified by final judgment during be awarded in election contests and quo
election day, the people voted for him bona warranto proceedings
fide, without any intention to misapply their Intent of the legislators to do away with
franchise and in the honest belief that the the provisions indemnifying the victorious
candidate was then qualified to be the party for expenses incurred in the election
person to whom they would entrust the contest, in the absence of a wrongful act or
exercise of the power s of government. omission clearly attributable to the losing
2. Appointive Office party.
- Issue is the legality of the appointment Question for damages remain ripe for
- The court determined who of the parties adjudication notwithstanding that the appeal
has legal title to the office from a decision of the election case has
already been moot
Execution Pending Appeal
TC may grant a motion for execution Contest
pending appeal, because the mere filing of Involving title or claim of title to an
an appeal does not divest the trial court of its elective office, made before or after
jurisdiction. proclamation of the winner, whether or not
Since it had jurisdiction to act on the the contestant is claiming the office in
motion at the time it was filed, that dispute.
jurisdiction continued until the matter was
resolved, and was not lost by the subsequent Election, Returns and Qualifications
action of the opposing party. Collectively, all matters affecting the
Rationale: to give as much recognition to validity of the contestees title to the
the worth of the trial judges decision as that position
which is initially ascribed by law to the
proclamation of the Board of Canvassers, Election
To prevent the grab the proclamation, Conduct of the polls
prolong the protest techniques. Includes
Factors: 1. listing of votes
o Public interest involved or will of the 2. holding of election campaign
electorate 3. casting of votes
o Shortness of the remaining portion of the 4. counting of votes
term
o Length of time that the election contest Returns
has been pending Includes:
Reasons allowing for immediate 1. canvass of returns
execution must be of such urgency as to 2. proclamation of winners
outweigh the injury or damage of the losing 3. questions concerning composition of
party should such party secure a reversal of Board of Canvassers
judgment on appeal. 4. authenticity of elections returns
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Fix the details in the execution and Necessity for Notice and Hearing
enforcement of a policy set out in the law. NO constitutional requirement for a
2. Interpretative Legislation hearing:
Construe or interpret the provisions of a 1. promulgation of a general regulation
statute to be enforced 2. rule is procedural
Binding on all concerned until they are 3. merely legal opinions
changed 4. substantive rules where the class to be
Effect of law and are entitled to respect affected is large and the questions to be
Have in their favor presumption of resolved involve the use of discretion
legality committed to the rule-making body
Erroneous application of the law by Hearing Requirement:
public officers does not bar subsequent 1. subordinate legislation, designed to
correct application of the law implement a law by providing details
3. Contingent Legislation 2. substantially adds to or increase the
Made on the existence of certain facts or burden of those concerned
things upon which the enforcement of law 3. exercise of quasi-legislative authority
depends.
Function of Prescribing Rates by an
Requisites for Validity Administrative Agency may either be:
1. Issued under authority of law Legislative Function: prior notice and
hearing is not a requirement
2. Within the scope and purview of the law Where the rules and rates are meant to
3. Reasonable apply to ALL enterprises of a given kind
4. Publication in the OG or in a newspaper throughout the country, they may partake of
of general circulation a legislative character
Interpretative rules and regulations/mere Adjudicative Function: prior notice and
internal in nature/ letters of instructions hearing are essential to the validity
concerning the rules and guidelines to be Where the rules and rates are meant to
followed by their subordinates in the apply exclusively to a particular party, then
performance of their duties may simply be its function is quasi-judicial in character
POSTED in CONSPICUOUS PLACES in
the AGENCY. Where hearing is indispensable, it does
DOLE Department Order and POEA not preclude the Board from ordering, ex-
Memorandum Circulars proper publication parte, a provisional increase subject to its
+ filing in the Office of the National final disposition of whether or not to make it
Administrative Register (Article 5 of LC) permanent, to reduce or increase it further or
to deny the application. (Maceda vs. Energy
Administrative Rules with Penal Sanctions Regulatory Board)
(additional requisites)
1. law itself must declare as punishable the Determinative Powers
violation of the administrative rule or 1. Directing
regulation Power of assessment of BIR and
2. law should define or fix the penalty for Customs
the violation of the administrative rule or 2. Enabling
regulation Permit or to allow something which the
law undertakes to regulate
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process as long as the parties are given the incriminates him of an offense other than
opportunity to be heard. that which is charged is asked.
- Administrative due process:
1. opportunity to be heard Power to Punish Contempt is Inherently
2. opportunity to seek reconsideration Judicial
3. opportunity to explain ones side 1. conferred by law and
- Substantial evidence: such relevant 2. administrative body is engaged in
evidence as a reasonable mind might accept performance of its quasi-judicial powers
as adequate to support a conclusion which is
the quantum of proof necessary to prove a Administrative Decisions not Part of the
change in an administrative case Legal System
- To be heard does not mean only verbal no vested right
agreements in court, one may also be heard could not place government in estoppel
through pleadings.
Administrative Appeal and Review
Administrative Determinations where 1. higher or superior administrative body
Notice and Hearing are NOT necessary for 2. President/ Department Secretaries by
due process virtue of the power of Control
1. grant of provisional authority for 3. appellate administrative agency
increased rates or to engage in a particular
line of business Doctrine of res judicata
2. summary proceedings of distraint and Decisions and orders of administrative
levy upon the property of a delinquent agencies have upon their finality, the force
taxpayer and effect of a final judgment within the
3. cancellation of passport, no abuse of purview of the doctrine of res judicata.
discretion Conclusive upon the rights of the
4. summary abatement of a nuisance per se affected parties as though the same had been
which affects the immediate safety of rendered by a court of general jurisdiction.
persons/property Forbids the reopening of a matter once
5. preventive suspension of a public determined by competent authority acting
officer/employee pending investigation of within their exclusive jurisdiction.
administrative charges
Applies to adversary administrative
proceeding
Right Against Self-Incrimination
Does NOT apply in administrative
Administrative charge of unexplained
adjudication relative to citizenship
wealth which may result in forfeiture of the
property Exception: Zita Ngo Burca vs. Republic
1. question of citizenship is resolved by a
Medical practitioner where proceeding
court or an administrative body as a material
could possibly result in the loss of his
issue in the controversy after a full-blown
privilege to practice medicine
hearing
Right may be invoked at the time he is 2. active participation of the SolGen
called as a witness 3. finding made by the administrative body
If he voluntarily takes the witness stand, on the citizenship issue is affirmed by the
he can be cross-examined, but he may still SC
invoke the right at the time the question
which calls for an answer which
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General Principles
Exceptions underlying power in the Courts to
1. Doctrine of Qualified Political Agency scrutinize the acts of administrative agencies
(alter ego doctrine) on questions of law and jurisdiction
2. Administrative remedy is fruitless although no right of review is given by
3. Estoppel on the part of the statute.
Administrative Agency Keep administrative agencies within its
4. Issue involved is purely a legal jurisdiction.
question Protect substantial rights of parties
5. Administrative action is patently illegal affected by the decisions.
6. Unreasonable delay or official inaction Part of system of checks and balances
7. Irreparable injury or threat, unless which restricts the separation of power and
judicial recourse is immediately made forestalls arbitrary and unjust adjudication.
8. Land cases, where subject matter is
private land Methods of Obtaining Judicial Review
9. Law does not make exhaustion a 1. Statutory or Non-Statutory
condition precedent to judicial recourse Statutory available pursuant to
10. Observance of the doctrine will result in statutory provision
the nullification of the claim
Non-statutory no express statute
11. Special reasons or circumstances
granting review, relief is obtained by means
demanding immediate court action
of:
12. Due process of law is clearly violated
1. common law remedies
13. Rules does not provide a plain, speedy
2. prerogative writs of certiorari
and adequate remedy
3. mandamus
4. HC
IV. JUDICIAL REVIEW OF
5. prohibition
ADMINISTRATIVE DECISIONS
6. quo warranto
Rule if statutory methods for judicial review
are available, they are ordinarily exclusive
Judicial review may be granted or
and the use of non-statutory methods will
withheld as Congress chooses
not likely be permitted.
Except: when Constitution requires or 2. Direct or Collateral
allows it
Direct attempt to question in
Judicial review of administrative subsequent proceedings the administrative
decisions cannot be denied the courts when action for lack of jurisdiction, grave abuse of
there is an allegation of grave abuse of discretion, etc. (attack on citizenship of an
discretion. individual)
Collateral relief from administrative
Bases for Judicial Review
action sought in a proceeding the primary
Unless otherwise provided by this purpose of which is some relief other than
Constitution or by law the setting aside of the judgment, although
Any decision, order or ruling of each an attack on the judgment may be
Commission may be brought to the SC on incidentally involved.
certiorari
w/in 30 days from receipt of a copy What Court has Jurisdiction
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CA have appellate jurisdiction over generally accorded not only respect but at all
judgments or final orders of the CTA and times even finality.
from awards, judgments, final orders or Principle that factual findings of
resolutions of or authorized by any quasi- administrative bodies are binding upon the
judicial agency in the exercise of its quasi- Court may be sustained only when no issue
judicial functions. of credibility is raised.
Administrative bodies, co-equal with It is not for the reviewing court to weigh
RTC on terms of rank and stature and the conflicting evidence, determine
beyond the control of the latter. credibility of witnesses or otherwise
Doctrine of Non-Interference by TCs substitute its judgment for that of the
with co-equal administrative bodies is administrative agency on the sufficiency of
intended to ensure judicial stability. evidence.
Reviewed by RTC Bureau of Administrative decision in matters with
Immigration, Court martial, LLDA the executive jurisdiction can only be set
aside on proof of
Questions which may be subject of judicial 1. grave abuse of discretion
review 2. fraud
1. Question of Law 3. collusion
2. Question of Fact 4. error of law
Factual findings of administrative Courts will not generally interfere with
agencies are generally conclusive upon the purely administrative matters unless there is
courts if supported by substantial evidence, clear showing of arbitrary, capricious or
EXCEPT grave abuse of discretion amounting to lack
1. expressly allowed by statute of jurisdiction.
2. fraud, imposition or mistake other than
error of judgment Judicial Review is not trial de novo
3. error in appreciation of the pleadings and It is merely an ascertainment of whether
in the interpretation of the documentary the findings of the administrative agency are
evidence presented by the parties consistent with law, free from fraud or
3. Mixed Question of Law and Fact imposition and supported by evidence.
(Brandeis Doctrine of Assimilation of Facts)
What purports to be a finding upon a
question of fact is so involved with and
dependent upon a question of law as to be in I. GENERAL PRINCIPLES
substance and effect a decision on the latter,
the Court will, in order to decide the legal Public Office
question, examine the entire record - Right, authority, duty, created and
including the evidence. conferred by law, by which for a given
period, either fixed by law or enduring at the
Guidelines for the exercise of the power pleasure of the creating power, an individual
Findings of fact are respected as long as is invested with some sovereign power of
they are supported by substantial evidence, government to be exercised by him for the
even if not overwhelming or preponderant. benefit of the people.
Findings of administrative officials and - Elements:
agencies who have acquired expertise are 1. created by law or by authority of law
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Oath of office taken before one who has Specific Disqualification under the
no authority to administer oath, is no oath at Constitution
all. 1. President, VP, Cabinet Members and
Pendency of election protest is not their deputies and assistants shall not hold
sufficient basis to enjoin him from assuming any other office or employment during their
office or from discharging his functions. tenure, UNLESS otherwise provided in the
Constitution.
Authority to Prescribe Qualifications 2. No Senator or Member of the HR may
Qualification prescribed by Constitution hold any other office or employment in the
generally exclusive unless Constitution Government including GOCC, during his
provides otherwise term without forfeiting his seat. Neither
Public officers created by statute shall he be appointed to any office which
Congress has plenary powers to prescribe may have been created or the emoluments
qualifications, provided: increased during the term for which he was
1. germane to the objectives for which the elected.
office was created 3. Members of the SC and of other courts
2. qualifications are not too specific as to established by law shall not be designated
fit a particular identifiable person that would to any agency performing quasi-judicial or
deprive appointing authority of discretion in administrative functions.
the selection of the appointee 4. No member of the Constitutional
Commission shall during his tenure, hold
Disqualifications any other office or employment. Applies to
Authority Ombudsman and his deputies.
Legislature has the right to prescribe
5. Ombudsman and his deputies shall not
disqualifications in the same manner as it be qualified to run for office in the election
can prescribe qualifications. immediately succeeding their cessation.
6. Members of the Constitutional
Limitation: do not violate the
Commission, Ombudsman and deputies
Constitution
must not have been candidates for any
Disqualification may be because of
elective position in the election immediately
unfitness for public office or because the
preceding their appointments.
person is rendered ineligible for the office.
7. Members of the Constitutional
General Disqualifications under the
Commission, Ombudsman and his deputies
Constitution
are appointed to a term of 7 years, without
1. No candidate who lost in an election,
reappointment.
shall, within 1 year after such election, be
8. Spouse and relatives by consanguinity or
appointed to any office in the Government.
affinity within the 4th civil degree of the
2. No elective official shall be eligible for
President shall not during his tenure be
appointment or designation in any capacity
appointed:
to any public office or position during his
As members of the Constitutional
tenure.
Commission
3. No appointive official shall hold any
Office of Ombudsman
other position in the Government, unless
Secretaries
otherwise allowed by law or the primary
Undersecretaries
functions of his office.
Chairmen/heads
*ex-officio capacity
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official relationship with his former 3) Officers of the AFP, from rank of
permanent position. colonel or naval captain
- Temporary appointment shall not exceed 4) Officers whose appointments are vested
12 months. in the President under the Constitution.
- Mere designation does not confer
security of tenure person designated Steps in Appointing Process
occupies the position only in an acting For REGULAR Appointments
capacity. 1) Nomination by President
- Appointment is subject to conditions, 2) Confirmation by COA
appointment is not permanent. 3) Issuance of the Commission
- Appointee cannot claim a complete 4) Acceptance by the appointee
appointment as long as the re-evaluation
incidental to the re-organization is still AD-INTERIM Appointment
pending. 1) Nomination by President
- unless terminated sooner even if 2) Issuance of the Commission
co-terminous with the project, it is 3) Acceptance by the appointee
nevertheless subject to the appointing 4) Confirmation by COA
authority.
- Where temporary appointment is for a DO NOT require Confirmation
FIXED period, appointment may be revoked 1) Appointment by Appointing Authority
only at the expiration of the period OR if 2) Issuance of the Commission
before, it must be for a valid and just cause. 3) Acceptance by the Appointee
3) Regular
- One made by the President while - A person cannot be compelled to accept
Congress is in session after the nomination an appointment EXCEPT when the
is confirmed by the Commission on appointment is made to an office required in
Appointments and continues until the end of defense of the State/
the term. - Where appointment is to the CAREER
SERVICE of the CIVIL SERVICE,
4) Ad-interim attestation by the Civil Service Commission
- Made while Congress is not in session, is required. Otherwise, not deemed
before confirmation by the Commission on complete. Appointment not submitted to the
Appointments, is immediately effective CSC w/in 30 days from the issuance (date
- Ceases to be valid if disapproved or appearing on the face of the appointment)
bypassed by COA upon next adjournment of shall be ineffective.
Congress - CSC is authorized to check of the
- Permanent appointment appointee possesses the qualifications and
- That it is subject to confirmation, does appropriate eligibility; if he does,
not alter its permanent character. appointment must be approved; of not, it is
disapproved.
- Regular and Ad-interim Classification - Appointment is complete when the last
may be used only when referring to the act required of the appointing power is
following: performed; until the process is completed,
1) Heads of Executive Department; appointee can claim no vested right in the
2) Ambassadors and other Publi Ministers officer nor claim security of tenure.
and Consuls
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Purpose of verifying the authenticity and recalled is actually contested and to be filled
genuineness of the petition and required by the electorate
percentage of voters
4. Lapse of the period, COMELEC or its Removal
duly authorized representative, shall Constitutional Guarantee of Security of
announce the acceptance of candidates to the Tenure not removed or suspended except
position and prepare list of candidates, for causes provided by law
including the name of the official sought to Career service officers and employees
be recalled. causes enumerated in law and in accordance
Election on Recall with procedure prescribed
Removal not for just cause or non-
Upon filing of a valid petition, compliance with prescribed procedures
COMELEC shall set date for the election on reversible, reinstatement with back salaries
recall and without loss of seniority rights
Not later than 30 days after the filing of Demotion is tantamount to unlawful
the resolution/petition in the case of removal is NO CAUSE is shown or it is
barangay/city/municipal officials NOT PART OF DISCIPLINARY ACTION
Not later than 45 days in the case of Unconsented transfer resulting in
provincial officials demotion in rank or salary is tantamount to
Officials sought to be recalled, removal without just cause.
automatically considered as registered A transfer that results in promotion or
candidate. demotion, advancement or reduction or a
Effectivity of Recall transfer that aims to lure the employee away
Recall of an elective official shall be from his permanent position, cannot be done
effective upon the election an proclamation without the employees consent, for that
of a successor. would constitute removal from office.
If the official sought to be recalled No permanent transfer can take place
receives the highest number of votes unless the officer or employee is first
confidence in him is affirmed and he shall removed from the position held, and then
continue in office appointed to another position.
Prohibition from Resignation Some cases on Grounds for Disciplinary
Limitation on Recall Action:
1. any elective official may be subject of a 1. Dishonesty concealment or distortion
recall election once during his term of office of truth in a matter of fact relevant to ones
for lack of confidence office or connected with the performance of
2. no recall shall take place within one year his duty; e.g. use of fake or spurious civil
from the date of the officials assumption to service eligibility
office or one year immediately preceding a 2. Conduct prejudicial to the best interest
regular local election of the service
Sangguiniang Kabataan election is not a 3. Misconduct transgression of some
regular election; established and definite rule of action;
Not barred by barangay election wrongful intention
Approaching local election must be one Administrative Code of 1987: 1)
where the position of the official to be Unsatisfactory conduct and 2) Want of
capacity
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Civil Service Law: inefficiency and disciplinary action against officers and
incompetence in the performance of official employees under their jurisdiction.
duties Decision final in case the penalty
Poor performance falls within the imposed is suspension of not more than 30
concept of inefficiency and incompetence days or fine in an amount not exceeding 30
Inefficiency and incompetence can only days salary.
be determined after the passage of sufficient Other cases, decision shall be initially
time, hence, the probationary period of 6 appealed to the department head and finally
months. to the Civil Service Commission and
Poltical or non-career members of the pending appeal, shall be executory EXCEPT
Foreign Service is coterminous with that of when the penalty is removal, in which case
the appointing authority or subject to his it shall be executory only after confirmation
pleasure by the department head.
Committee to hear administrative charge
Holding primarily confidential positions
continue in office as long as the confidence against public school teacher
in them endures; termination is justified on representative of the teachers organization
2. Civil Service Commission has appellate
the ground of lack of confidence
jurisdiction. Case may be filed directly to it;
removal: expiration of term
it may decide on the case or deputize a
Holding temporary or acting department or agency
appointments may be removed at any
time, without necessity of just cause or a Preventive Suspension
valid investigation. The proper disciplining authority may
preventively suspend any subordinate officer
Procedure in Administrative Case or employee under his authority pending an
1. Administrative case against a public investigation if the charge against such
official shall continue despite withdrawal of officer or employee involves 1) dishonesty,
the complaint since they do not involve 2) oppression or grave misconduct or 3)
purely private matters but are impressed neglect in the performance of duty or 4) if
with public interest by virtue of the public there is reason to believe that the respondent
character of the public office. is guilty of charges which would warrant his
2. Substantial proof and not clear and removal from the service.
convincing evidence or proof beyond Not a penalty. Enable authorities to
reasonable doubt is sufficient. investigate.
Satisfied when the employer has If the investigation is not finished and a
reasonable ground to believe that the decision is not rendered within a period of
employee is responsible for the misconduct 90 days, the suspension will be lifted and the
and his participation renders him unworthy respondent will automatically be reinstated.
of trust and confidence demanded by his If after investigation, he is innocent of
position. the charges and is exonerated, he should be
reinstated.
Jurisdiction in Disciplinary Cases Preventive suspension can be ordered
1. Heads of ministries, agencies and even without a hearing.
instrumentalities, provinces, cities and Authority to preventively suspend:
municipalities have jurisdiction to exercised concurrently by the Ombudsman
investigate and decide matters involving RA 6770: 6 months
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Penalty imposed upon conviction carries There is a natural and universal principle
with it the accessory penalty of of right and wrong, independent of mutual
disqualification, conviction by final intercourse or compact, which can be
judgment automatically terminates official discovered and recognized by every
relationship. individual through the use of his reason and
Plenary pardon extinguished the conscience.
accessory penalty of disqualification, it will Since individuals compose the State
not restore the public office to the officer whose will is but the collective will of the
convicted; inhabitants, the State also becomes bound by
He must be given a new appointment. the law of nature.
2. Positivist School
Filing of Certificate of Candidacy Binding force of international law is
Any person holding a public appointive derived from the agreement of the States to
office or position, be bound by it.
Including active members of the AFP International law is not a law of
And officers and employees in GOCCs subordination but of coordination.
Shall be considered ipso facto 3. Eclectic or Grotian School
RESIGNED upon filing of certificate of In so far as it conforms to the dictates of
candidacy. right reason, the voluntary law may be said
Applies even to employees of GOCCs to blend with the natural law and is an
without an original charter expression of it.
In case of conflict, the natural law
prevails, being the more fundamental law.
GENERAL PRINCIPLES
Public International Law distinguished from:
International Law, defined
- Traditional branch of public law which Private International Law
regulates the relations of States and of other
entities which have been granted Public Private
international personality. International International
Focuses on SUBJECTS (entities which Law Law
possess international personality and with Nature International Municipal
rights and obligations recognized under Remedies International Local
international law) Modes Tribunals
as opposed to OBJECTS (which are Parties International Private
persons or things in respect of which rights Entities Persons
are held and obligations assumed by the Enforcement International Sheriff/Police
subjects of international law) Sanction
- Modern law that deals with the
conduct of States and international International Morality/Ethics
organizations, their relations with each other Principles which governs relations of States
and, in certain circumstances, their relations from the standpoint of conscience, morality,
with persons, natural or juridical. justice and humanity.
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water to the area of the land, including prevent infringement of customs, fiscal,
atolls, is between 1:1 and 9:1. immigration or sanitary laws.
The length of such baselines shall not 5) Exclusive Economic Zone extends up
exceed 100 nautical miles, except that up to to 200 nautical miles from the low-water
3% of the total number of base lines mark or the baselines.
inclosing any archipelago may exceed that Coastal state may exercise sovereign
length, up to a maximum of 125 nautical rights over economic resources of the sea,
miles. seabed, subsoil,
The baselines drawn should not depart Other States shall have freedom of
from, to any appreciable extent, from the navigation and over-flight, to lay submarine
general configuration of the archipelago. cables and pipelines, and other lawful uses.
All the waters within the baselines shall States with overlapping EEZ enter
be considered as internal waters. into appropriate treaty for joint exploitation
The breadth of the 12-mile territorial and utilization.
sea, the contiguous zone, the exclusive Philippine EEZ Scarborough Shoal
economic zone and the continental shelf 6) Continental Shelf
shall then be measures from the archipelagic Comprises the seabed and the subsoil of
baselines. the submarine areas that extends beyond the
Vessels may be allowed innocent territorial sea throughout the natural
passage. This right may be suspended, after prolongation of its land territory to the outer
PUBLICATION in the interest of edge of the continental margin, or to a
INTERNATIONAL SECURITY. distance of 200 miles from the baselines
Coastal state may designate the from which the territorial sea is ensured
ARCHIPELAGIC SEA LANES for where the outer edge of the continental
continuous, unobstructed transit vessels. margin does not extend up to that distance.
3) Territorial Sea - belt of the sea located Coastal state enjoys right of exploitation
between the coast and internal waters of the of oil deposits and other resources in the
coastal state on one hand and the high seas continental shelf.
on the other, extending up to 12 nautical In case continental shelf extends to the
miles from the low-water mark, or in case of shores of another State, or is shared with
archipelagic states, from the baselines. another State, the boundary shall be
GR: ships (not aircrafts) of all states determined in accordance with equitable
enjoy the right of innocent passage through principles.
the territorial sea (not waters). 7) High Seas
Must be continuous and expeditious. Treated as res communes or res nullius
Exception: force majeure Not territory of any particular state
Submarines and other underwater craft Traditional view: Freedom of the high
are required to navigate on the surface and seas open and available, without
to show their flag restriction, to the use of all states for the
4) Contiguous Zone extends up to 12 purpose of navigation, flight over them,
nautical miles from the territorial sea. laying submarine cables and pipes, fishing,
Technically, not part of the territory of research, mining, etc.
the State. At present, subject to regulation arising
Coastal state may exercise limited from treaty stipulations.
jurisdiction over the contiguous zone to
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Freedom of navigation right to sail Intrusion into the air space by civilian
ships on the high seas, subject only to aircraft may be intercepted but in no case
international law and the laws of the flag shall the interception be attended with the
state. use of weapons.
Military aircraft may be shot down.
Settlement of Dispute Arising from the UN
Convention on the Law of the Sea
(UNCLOS) Outer Space
Part XV of 1982 UN Convention on the Rules governing high seas apply;
Law of the Sea considered res communes.
Requires States to settle peacefully any Under customary international law,
dispute concerning the convention. States have the right to launch satellites in
Failing bilateral settlement settled for orbit over the territorial air space of other
compulsory settlement to one of the States.
tribunals having jurisdiction. Outer Space Treaty of 1967
International Tribunal for the Law of the 1. Outer space is free for exploration and
Sea, ICJ, and arbitral or special arbitral use by all States
tribunals constitutes under UNCLOS 2. Cannot be annexed by any State
3. May be used exclusively for peaceful
Air Territory purposes. (nuclear weapons of mass
- Aerial domain destruction may not be placed in orbit
- Air space above the land and water of around the earth)
the state. 1972 Convention on International
- International Convention on Civil Liability for Damage Caused by Outer
Aviation (Chicago Convention) Space Objects
Every State has complete and exclusive o States which launch objects into space
sovereignty over the air space above its may be held liable for the harmful
territory; but this shall not include outer contamination or for damage which may be
space (re communes). caused by falling objects.
Other States have no right of innocent Theories on where outer space begins
passage over the air territory of another 1. lowest altitude for artificial earth
State. satellites to orbit without being destroyed by
5 Freedoms (of Air Transportation for friction (90 kms above earth)
Scheduled International Services) 2. theoretical limits of air flights (84 kms
Fly across the territory without landing above earth)
Land for non-traffic purposes 3. functional approach rules shall not
Land to put down passenger, mail, cargo depend on the boundaries set, but on the
of flag territory nature of the activity undertaken.
Land to take passenger, mail, cargo of
flag territory Jurisdiction
Put down passenger, mail, cargo from - Power or authority exercised by a State
these territories over land, persons, property, transactions
- 1981 Resolution of the International and events.
Civil Aviation Organization - Bases of Jurisdiction
1. Territorial Principle
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Right of the foreign State to acquire 5) Foreign merchant vessels exercising the
property in the receiving State for its right of innocent passage or arrival under
diplomatic mission, as well as immunity of stress
the diplomatic envoy from civil jurisdiction Innocent Passage: navigation through the
of the receiving State over any real action territorial sea of a State for the purpose of
relating to immovable property which the transversing that sea without entering
envoy holds on behalf of the sending state internal waters, or of proceeding to internal
for purposes of the mission. waters, or making for the high seas from the
4) Immunity of the United Nations, its internal waters, as long as it is not
Organs, Specialized Agencies, other prejudicial to the peace, good order or
International Organizations and its Officers security of the coastal State.
Article 105, UN Charter: organizations, Arrival under stress: involuntary
officers, representatives of members, who entrance, due to lack of provisions,
shall such privileges and immunities as are unseaworthiness of vessel, inclement
necessary for the independent exercise of weather or other case of force majeure, such
their functions. as pursuit by pirates.
Secure them legal and practical 6) Foreign armies passing through or
independence in fulfilling their duties. stationed in the territory with the permission
Free from political pressure or control by of the State
the host country. 7) Warships and other public vessels of
Convention on the Privilege and another State operated for non-commercial
Immunities of the United Nations the purposes
immunities are with respect to: Generally immune from local
1) Legal processes relative to words spoken jurisdiction floating territory
or written and acts in their official capacity Crew members are immune from local
2) Taxation on salaries and emoluments jurisdiction when on shore duty.
3) National service obligations N/A if the crew members violate local
4) Immigration, restriction and alien laws while on furlough or off-duty
registration
5) Same immunities as are enjoyed by Jurisdiction over Land Authority
diplomats of comparable rank - Save for exceptions, the State exercises
International agency, enjoys immunity jurisdiction over everything found within the
from the legal writs and processes of the terrestrial domain.
Philippines, because subjection to local
jurisdiction would impair the capacity of Jurisdiction over Maritime Authority
such body to discharge its responsibilities - Over internal waters
impartially in behalf of its member States. Same jurisdiction as land area, since the
Section 31, Convention on the Privileges internal water are deemed assimilated in the
and Immunities to Specialized Agencies of land mass
the UN provides remedy for those who Foreign merchant vessels docked in a
may be adversely affected by these local port or bay, the coastal state exercises
immunities each specialized agency of jurisdiction in civil matters, but criminal
the UN shall make a provision for jurisdiction depends on:
appropriate modes of settlement of disputes 1) English Rule: coastal state shall have
arising out of contracts or other disputes of jurisdiction over all offenses committed on
private character to which it is a party.
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board the vessel except those which do not - Over the high seas
compromise the peace of the port Its vessels
2) French Rule: flag State shall have Flag state has jurisdiction over its public
jurisdiction over all offenses committed on vessels wherever they are, and over its
board the vessel except those which merchant vessels on the high seas.
compromise the peace of the port. Because of the Flags of Convenience
- Over archipelagic waters Controversy, the UN Convention on the
Same rule as internal waters. Law of the Sea concedes that a vessel shall
Except for innocent passage of merchant have the nationality of the flag it flies
vessels through archipelagic sea lanes. provided there is genuine link between the
- Over the territorial sea State and the vessel State must
Criminal jurisdiction over foreign effectively exercise jurisdiction and control
merchant vessels depends on English Rule in administrative, technical and social
or French Rule matters over the ship.
Exceptions: Pirates
1) Innocent passage and Enemies of mankind
2) Involuntary surrender (distress on the May be captured on the open seas by the
vessel must be real) vessels of any State
- Over the contiguous zone Engaged in illicit traffic in drugs and
UN Convention on the Law of the Sea, slave trade
the Coastal State may exercise the control All states shall cooperate in the
necessary to prevent infringement of its suppression of:
customs, fiscal, immigration and sanitary 1) Illicit traffic in narcotics
regulations, and punish the said 2) Illicit traffic in slave trade
infringement. 3) Terrorism
- Over the exclusive economic zone 4) Unauthorized broadcasting from the high
UN Convention on the Law of the Sea, seas, except in distress calls
Coastal State has sovereign rights over the In the exercise of the right to visit and
EEZ for purposes if exploring and search
exploiting, conserving and managing the Laws of Neutrality public vessels or
natural resources, whether living or non- aircraft of a belligerent State may visit and
living, of the sea-bed, sub-soil, and the search any neutral merchant vessel on the
superjacent waters as well the production of open seas and capture it if found to be
energy from the water, currents and winds. engaged in activities favorable to the other
Other States shall have the freedom of belligerent.
navigation and over-flight, to lay submarine Under the doctrine of hot pursuit
cables and pipes and other lawful uses. If an offense is committed by a foreign
- Over the continental shelf merchant vessel within the territorial waters
Coastal State enjoys the right of of the coastal state (or of the coastal state
exploitation of oil deposits and other has good reason to believe that such an
resources in the continental shelf. offense had been committed) the said States
In case the continental shelf extends to vessels may pursue the offending vessel into
the shores of another State or is shared with the open seas and, upon capture, bring it
another State, the boundary shall be back to its territory for punishment.
determined in accordance with equitable Exercised to violations committed in the
principles. EEZ or on the continental shelf installations.
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Tanada vs. Angara: Treaties do not limit Consent of all the parties is required
or restrict sovereignty of a State; by their If allowed by the treaty itself, 2 States
voluntary act, States may surrender some may modify a provision only insofar as they
aspects of their power in exchange for are concerned.
greater benefits granted by or derived from a
convention or pact. Termination of Treaties
2) Rebus sic stantibus 1) EXPIRATION of the term or
Contracting States obligations under a WITHDRAWAL of a party
treaty terminates when a vital or 2) EXTINCTION of one of the parties
fundamental change or circumstances (bipartite treaties)
occurs, thus allowing a State to unilaterally When the rights and obligations under
withdraw from a treaty, because of the treaty would not devolve upon the State
disappearance of the foundation upon that may succeed the extinct State
which it rests. 3) MUTUAL AGREEMENT of ALL the
Doctrine does not operate automatically, parties
there must be a FORMAL ACT OF 4) DENUNCIATION or DESISTANCE
REJECTION, usually by the HEAD OF The right to give notice of termination or
STATE, with a statement of the REASONS withdrawal right of denunciation
why compliance with the treaty is no longer 5) SUPERVENING IMPOSSIBILITY of
required. performance
Requisites 6) CONCLUSION of SUBSEQUENT
1) Change must be so substantial that the INCONSISTENT TREATY
foundation of the treaty must have altogether 7) LOSS of the subject matter
disappeared 8) MATERIAL BREACH or violation
2) Change must have been unforeseen or 9) REBUS SIC STANTIBUS
unforeseeable at the time of the perfection of 10) Outbreak of WAR, unless the treaty
the treaty precisely relates to the conduct of war
3) Change must not have been caused by 11) SEVERANCE of diplomatic relations
the party invoking the doctrine 12) Doctrine of JUS COGENS or emergence
4) Doctrine must be invoked within a of NEW PEREMPTORY NORM of general
reasonable time international law which renders void any
5) Duration of the treaty must be indefinite existing treaty conflicting with such norm.
6) Doctrine cannot operate retroactively
VII. NATIONALITY AND
Interpretation of Treaties STATELESSNESS
- Interpreted in good faith
- Ordinary meaning given to the terms Nationality membership in a political
- In the light of its objects and purposes community with rights and duties
- Consider: - Determination of a persons nationality
1) Preamble 1930 Hague Convention on Conflict of
2) Text Nationality Laws
3) Annexes 1) For each state to determine under its
4) Agreements relating to the treaty own law who are its nationals
5) Subsequent agreements 2) Question as to whether a person
possesses the nationality of a particular State
Amendment/Modifications
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The act or omission that may give rise to agrees to limit himself to the remedies
liability may either be: available under the laws of the local state.
1. acts of government officials Does not mean that the aliens state is
primary agents deprived of the right to protect or vindicate
give rise to direct state responsibility its interest in case they are injured in another
acts of high administrative officials state, as such waiver can be legally made by
officer acts beyond the scope of his the state, not the alien.
authority, his act is likened to an act of a 2. Resort to Diplomatic Protection
private individual. After exhaustion of local remedies, alien
Acts of a minor or subordinate official to must avail himself of the assistance of his
give rise to liability, there must be a denial state.
of justice or something which indicates Tie of nationality time of injury until
complicity of the State in, or condonation of, time international claim is finally settled.
the original wrongful act, such as an UN may file diplomatic claim on behalf
omission to take disciplinary action against of its officials.
the wrongdoer. European Commission on HR and also
2. acts of private individuals contracting states other than the state of the
For State to be liable, there must be injured individual may bring alleged
actual or tacit complicity of the government infractions of the European Convention on
in the act, before of after it, either by HR before the European Court of HR.
directly ratifying or approving it, or in the 3. Modes of Enforcement of Claims
patent or manifest negligence in taking Negotiations or other modes of settling
measures to prevent injury, investigate the dispute.
case, punish the guilty or to enable the When responsibility is established:
victim to pursue his civil remedies against 1. Reparation
the offender. 2. Satisfaction
The claimant has the burden of proving. 3. Compensation
3. Injury to the claimant State indirectly 4. all three
because of damage to its national
Extradition
Enforcement of Aliens Claim - surrender of a person by one state to
1. Exhaustion of Local Remedies another state where he is wanted for
Because the State must be given an prosecution or punishment (if already
opportunity to do justice in its own regular convicted)
way and without unwarranted interference
with its sovereignty by other states. Basis
N/A if: treaty
1. no remedies to exhaust, e.g. laws are local state may grant asylum, or
intrinsically defective if there is surrender, the same is merely a
2. courts are corrupt gesture of comity
3. no adequate machinery
4. international delinquency results from an Deportation
act of state expulsion of an alien who is considered
Calvo Case: alien waives or restricts his undesirable by local state, usually but
right to appeal to his own state in connection necessarily to his own state
with any claim arising from the contract and
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unilateral act of the local state and is prima facie case against the fugitive
made in its own interests according to its own laws.
If there is, WARRANT IF
Extradition SURRENDER and fugitive delivered to the
surrender of a fugitive by one state to state of refuge.
another where he is wanted for prosecution Sui generic and not criminal proceedings
or punishment. no automatic application of the Bill of
Surrender is made at the request of the Rights
latter state on the basis of a treaty. Do not involve the question of guilt or
innocence of the person to be extradited
Fundamental Principles: Savarkar Case: Abduction of the fugitive
1. Based on CONSENT treaty or in the state of refuge is not allowed
goodwill violation of the territorial integrity of the
2. PRINCIPLE OF SPECIALTY fugitive state of refuge; BUT if effected with the
who is extradited may be tried only for the help of the nationals of the state of refuge
crime specified in the request for extradition itself, then the state of refuge cannot later
and included in the list of offenses in the demand the return of the fugitive.
extradition treaty.
State of refuge has the right to object to RPs Extradition Treaties
a violation non-list types of double criminality
Non-list types of extradition treaties approach (no traditional listing of crimes):
offenses punishable under the laws of both 1. Australia
states by imprisonment on 1 year or more 2. Canada
are included among extraditable offenses. 3. Indonesia
3. ANY PERSON may be extradited 4. Micronesia
4. POLITICAL AND RELIGIOUS 5. Switzerland
OFFENDERS are generally not subject to
extradition Letters Rogatory
5. Offense must have been COMMITTED - Formal communication from a court in
WITHIN the territory or AGAINST THE which an action is pending, to a foreign
INTERESTS of the demanding state court, requesting that the testimony of a
6. RULE OF DOUBLE CRIMINALITY. witness residing in such foreign jurisdiction
Act for which extradition is sought must be be taken under the direction of the court,
punishable in both the requesting and addressed and transmitted to the court
requested states. making the request.
- Power to issue letters rogatory is
Procedure for Extradition inherent in courts of justice
1. REQUEST through diplomatic channels,
accompanied by necessary papers Asylum
Identity of wanted person - Power of the state to allow an alien who
Crime alleged to have been has sought refuge from prosecution or
committed/convicted persecution to remain within the territory
2. JUDICIAL INVESTIGATION, after and under its protection
receipt of the request, state of refuge shall - Never been recognized as a principle of
investigate to ascertain if the crime is international law.
covered by the extradition treaty and if there
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- Intervene in all disputes affecting overpowering the other and imposing such
international peace and security and in all conditions of peace as the victor pleases.
disputes which although coming under the Does not mean the mere employment of
domestic jurisdiction clause, have been force.
submitted to it by the parties for settlement. If a nation declares war, war exists
a. Security Council will recommend though no force has yet been used.
appropriate measures; consider amicable
measures or refer matter to ICJ; Outlawry of War
b. If unsuccessful, Security Council may Condemnation of war on an international
recommend such terms of settlement as it scale
may deem appropriate; and Covenant of the League of Nations:
c. If the terms of settlement are rejected, conditions for the right to go to war
Security Council may take: Kellogg-Briand Pact of 1928 or General
Preventive Action
Treaty for Renunciation of War: forbade war
Not involving use of armed force as an instrument of national policy
E.g. complete or partial interruption Charter of the United Nations: prohibits
of economic relations, and of rail, sea, air, the threat or use of force against the
postal, telegraphic, radio or other means of territorial integrity or political independence
communications and severance of of a state.
diplomatic relations.
Enforcement Action Commencement of War
By air, sea or land forces as may be a. Declaration of war
necessary to maintain or restore b. Rejection of an ultimatum
international peace and security including c. Commission of an act of force regarded
demonstrations, blockades and other by one of the belligerents as an act of war
operations by air, sea or land forces of
members of the UN. Effects of Outbreak of War
Member state is obliged to render (1) Laws of peace cease to regulate the
assistance in carrying out the measures relations between the belligerents and are
decided upon by the Security Council. superseded by laws of war;
Third states are governed by laws of
General Assembly neutrality in their relations with the
- If the Security Council because of lack belligerents;
of unanimity fails to exercise its primary (2) Diplomatic and consular relations are
responsibility to maintain peace and terminated;
security, the General Assembly shall Representatives are allowed to return to
consider making recommendations their countries;
including the use of armed forces when (3) Treaties of political nature are
necessary. automatically cancelled, except those
intended to operate during the war;
X. WAR AND NEUTRALITY Multipartite treaties dealing with
technical or administrative matters are
War merely suspended as between
Contention between 2 states, through belligerents.
their armed forces, for the purpose of (4) Individuals are impressed with enemy
character:
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a. Nationality test nationals of the other resist the invading troops without having
belligerent, wherever they may be had time to organize themselves, provided
b. Domicillary test domiciled aliens in they carry arms openly and observe the laws
the territory of the other belligerent on the and customs of war;
assumption that they contribute to its e. Franc tireursm, or guerillas, provided
economic resources they are commanded by a person responsible
c. Activities test if being foreigners, they for his subordinates, wear a fixed distinct
participate in the hostilities in favor of the emblem recognizable at a distance, carry
other belligerent their arms openly, and conduct their
(5) Corporations and other juridical persons operations according to the laws and
are considered enemies: customs of war; and
a. where the controlling stockholders are f. Officers and crew of merchant vessels
nationals of the other belligerent OR who forcibly resist attack.
b. if incorporated in the territory or under
the laws of the other belligerent and may not Rights of Prisoners of War
be allowed to continue operations. 1949 Geneva Convention
(6) Enemy public property found in the Treated humanely
territory of the other belligerent at the Not subject to torture
outbreak of the war is subject to Allowed to communicate with their
confiscation; families
Private property is subject to requisition. Receive food, clothing. Religious
State may, in time of war, authorize and articles, etc.
provide for seizure and sequestration,
through executive channels, of properties Spies
believed to be enemy-owned, if adequate Individual is deemed a spy only if,
provision is made for their return in case of a. Acting clandestinely or under false
mistake. pretenses
b. He obtains or seeks to obtain
Participants in War information in the zone of operations of a
1. Combatants those who engage directly belligerent
in the hostilities c. With the intention of communicating it
2. Non-combatants those who do not to the hostile party.
When captured, may be proceeded
Combatants may be:
against under the municipal law of the
1. Non-privileged: like spies, who under
belligerent.
false pretenses try to obtain vital information
from the enemy ranks and who, then caught, Although under the Hague Convention,
are not considered prisoners of war. may not be executed without a trial.
2. Privileged : who, when captured, enjoy But if captured after he has succeeded in
the privileges of prisoners of war: rejoining his army, must be treated as a
a. Regular armed forces prisoner of war.
b. Ancillary services Scouts or soldiers in uniform who
c. Accompany the armed forces penetrate the zone of operations of the
d. Levees en masse, inhabitants of hostile army to obtain information are NOT
unoccupied territory who, on approach of spies.
the enemy, spontaneously take up arms to
Mercenaries
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Cartels Cease-Fire
Agreements to regulate intercourse Unconditional stoppage of hostilities
during the war Usually ordered by an international body
Usually on the exchange of prisoners of
war Truce
Conditional cease-fire for political
Passport purposes
Written permission given by the
belligerent government Capitulation
To the subjects of the enemy Surrender of military forces, places or
To travel generally in the belligerent districts in accordance with rules of military
state honor.
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actual possession at the time of the cessation o Because of enforcement action that UN
of hostilities. may undertake, absolute neutrality cannot
exist among UN Members
War Crimes
- Acts for which soldiers or other Rules of Neutrality
individuals may be punished by the enemy Neutrals have the right and duty:
on capture of the offender. Abstain from taking part in the hostilities
- War Criminal: any person civilian or and from giving assistance to either
member of the armed forces of the State, belligerents by:
who commits an act that violates a rule of Sending of troops
international law governing armed conflicts Official grant of loans
Carriage of contraband
Neutrality and Neutralization Contraband goods which, although neutral
property, may be seized by a belligerent
Neutrality because they are useful for war and are
Non-participation in a war between bound for a hostile destination.
contending belligerents i. Absolute useful for war under all
Exists only during war circumstances (guns/ammunitions)
Governed by the law of nations ii. Conditional have both civilian and
Naturalization military utility (food and clothing)
Result of a treaty wherein conditions of the iii. Free list exempt from the law on
status are agreed upon by the neutralized contraband for humanitarian reasons
state and other signatories (Medicines)
Exists both in times of war and of peace Doctrine of Ultimate Consumption
Governed by the agreement entered into by goods intended for civilian use which may
and between the parties ultimately find their way to and be
A permanently neutral or neutralized consumed by belligerent forces may be
state is one whose independence or integrity seized on the way.
is guaranteed by other states, under the Doctrine of Infection innocent goods
condition that such state binds itself never to shipped with contraband may also be seized
participate in an armed conflict or military Doctrine of continuous
operation except for individual self-defense. voyage/continuous transport goods
In Cold War, the states which sided with reloaded at an intermediate port on the same
neither the democracies nor the communists vessel or reloaded on another vessel or other
were referred to as neutralist or non-alligned forms of transportation may also be seized
states. Doctrine of Ultimate Consumption
Non-belligerency did not take part in
Engaging in Unneutral Services acts of
military operations but which did not a more hostile character than carriage of
observe the duties of a neutral. contraband or breach of a blockade,
o Mid-way between a neutral and a undertaken by merchant vessels of a neutral
belligerent state in aid of any of the belligerents.
o Not recognized in international law To prevent its territory and other resources
from being used in the conduct of hostilities
Neutrality under UN Charter To acquiesce to certain restriction and
limitations which the belligerents may find
necessary to impose:
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Termination of Neutrality
(1) Conclusion of a treaty or peace
between belligerents
(2) Neutral state itself joins war
187