Crimes Committed by Public Officers. Sec.
203 of the RPC in fact defines
LAW ON PUBLIC OFFICERS
POLITICAL LAW REVIEW (A.Y. 2014 -2015)
DBL Discussion, Slides, New Jurisprudence
We’ll talk about Law on Public Officers. The problem with this subject is
that the sources in law are quite scattered, unlike in Administrative Law
where you can rely on the Admin Code as your core statute. So if you look
at the outline, you don’t see a lot of statutory provisions but you will see
cases instead. The study on Law of Public Officers would be more a
doctrinal study of law - the study will be based on doctrines and principles.
And in the bar exams, most questions also come from these topics which I
have selected for your outline. So if there are questions not in the outline,
those are just rare questions (occasional tripping tripping sa examiner).
PUBLIC OFFICE AND PUBLIC OFFICERS; DE FACTO AND DE
JURE PUBLIC OFFICERS; SALARY
PUBLIC OFFICERS, OFFICE, OFFICIALS
In your outline, we begin with the case of Secretary of DOTC vs.
Mabalot, a case which you have already studied in Admin law, and this
case simply tells us that a public office, if we are referring to public office
as an office similar to an administrative agency, indeed can be created by
constitution, law or by authority of law. Because as you will see, a public
office may pertain to a position held by a public officer or it may refer to a
functional unit or an office, an agency, so there are 2 conceptions therefore
of a public office.
Now, in the first slide, I have presented four questions that will guide you
in studying first the concept of public office or public officer. These can be
probable questions also in the bar exams, questions such as:
1. What is a “public office”?
2. Who is a “public officer”?
3. Who is a “public official”?
4. What is the importance of knowing the meaning of a “public
officer”?
Sec. 2(9), Introductory Provisions of the Administrative Code:
Office refers, within the framework of governmental organization, to any
major FUNCTIONAL UNIT of a department or bureau including regional
offices. IT MAY ALSO REFER TO ANY POSITION HELD OR OCCUPIED BY
INDIVIDUAL PERSONS, WHOSE FUNCTIONS ARE DEFINED BY LAW OR
REGULATION.
Example: Agency is a public office. The position of the mayor is also a
public office. So either it is a position held by an individual with functions
defined by law or regulation or a functional unit. That’s the meaning of a
public office.
The problematic concept however is the concept of public officer. Why is
that? Because the concept of public officer is not found in the Constitution.
The Administrative Code is also not specific as to public officer. There may
be a distinction between an officer and a clerk or an officer and an
employee. But there is no complete or categorical description of a public
officer.
So in case of public officer, your answer would depend on the case;
second, the law being applied to the case. So for example, the case
involves criminal law, refer to the Revised Penal Code under the Title
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public officer for purposes of criminal law. If Anti-Graft Case, refer to RA
3019 for the definition of Public Officer. As to plunder, refer to the law on
Plunder for the definition of Public Officer. If this question is asked in the
bar exam, your answer is quite long. If you can’t remember, just apply the
elements of a public officer as enunciated in the case of Laurel vs. Desierto.
[Details of different definitions and Laurel elements in the sections to
follow]
Sec. 2(14), Introductory Provisions, Administrative Code:
Officer – as distinguished from “clerk” or “employee”, refers to a
person whose duties not being of a clerical or manual nature, involves the
exercise of discretion in the performance of the functions of the
government. When used with reference to a person having authority to
do a particular act or perform a particular function in the exercise of
governmental power, “officer” includes any government employee, agent or
body having authority to do the act or exercise that function.
So an “officer” may be distinguished from a “clerk” or an “employee”
because an officer involves the exercise of discretion in the performance of
the functions of the government. Notice that it involves discretion, so
higher threshold if we compare it with administrative code.
Whereas in the case of a “clerk” or a mere “employee”, there is no
discretion involved in the exercise of authority but the function is merely
clerical or manual (e.g. like the function of whether or not you’ll be allowed
to enter the building. This is the function of the security guard. NO ID, NO
ENTRY. If you don’t have an ID, you’re asking for an exercise of discretion.
That security guard that is stationed there cannot decide on that. What will
the security guard do? He should ask the head of the security office or
whoever is in charge with that issue. That person in charge has the
discretion.)
Q: How do you distinguish a “Public Officer” from a “Public Official”?
Actually, you can use them interchangeably. Look at RA 6713. This refers to
the code of conduct of public officials.
Sec. 3(b) of Republic Act No. 6713
“Public Officials” include elective and appointive officials and
employees, permanent or temporary, whether in the career or non-career
service including military and police personnel, whether or not they receive
compensation, regardless of amount.
Observe also the definition under Article 203 of the Revised Penal Code.
Note that the definition is all encompassing. “Of any rank or class”. So the
distinction of “officer”, of “clerk” or “employee” in the administrative code is
not applicable for purposes of the Revised Penal Code.
Article 203 of the RPC
“Who are public officers” – For purposes of applying the provisions of this
and the preceding titles of this book, any person who, by direct provision of
the law, popular election or appointment by competent authority, shall
take part in the performance of public functions in the Government of the
Philippine Islands, or shall perform in said Government or in any of its
branches public duties as an employee, agent, or subordinate official, of
any rank or class, shall be deemed to be a public officer.
Look at the definition of a public officer in the Plunder Law and contrast it
with the case of Laurel vs. Desierto.
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R.A. 7080 (Plunder Law):
Sec. 1(a):
“any person holding any public office in the Government of the Republic of
the Philippines by virtue of an appointment, election or contract.”
Characteristics of PUBLIC OFFICE:
 Delegation of sovereign functions
 Creation by law and not by contract
 An oath
 Salary/Compensation (but, incl. “honorary”)
 Continuance of the position
 Scope of duties
 Designation of the position as an office.
[Laurel v. Desierto, April 12, 2002]
According to Mechem in his book Law on Public Officers, one of the
essential characteristics of the public office as enumerated in the case of
Laurel vs. Desierto, “Creation by law and not by contract”, but if you
look at the Plunder Law, “any person holding any public office in the
Government of the Republic of the Philippines by virtue of an
appointment, election or contract.”
So if you are assigned/designated a specific function, but not by reason of
an already existing office or position created by law but only for the reason
of a contract entered into by the government, you can also be held liable
for plunder. But that’s for plunder.
So if we talk about the concept of public office in general, we rely on the
decision of the Supreme Court in the case of Laurel vs. Desierto. This
case is also cited in the case of Khan vs. Ombudsman in 2006.
Former Vice President Laurel was appointed as chairman of the national
centennial commission; this is an ad hoc commission because it is only for
the centennial celebration of 1998. When there was the Expo issue, a case
was filed before the office of the ombudsman and Laurel was impleaded.
Laurel argues that the committee is merely an ad hoc, and besides, there
was not even a clear remuneration from the government, there is no
continuation of position, that’s why it’s ad hoc. Therefore, it is not a public
office. And if it’s not a public office, the Ombudsman cannot initiate a case
before the Sandiganbayan . such initiation of complaint is questioned by
Laurel.
Now here, the Supreme Court explained the characteristics of a public
office. Very notable discussion of the court was from the opinion of
Mechem, the singular most important (not saying that it is the ONLY but
just MOST IMPORTANT) is the first one: DELEGATION OF SOVEREIGN
FUNCTION. Even by this characteristic alone, the SC ruled that the
apposition of Laurel was considered a public office.
Because what was argument of Doy Laurel, invoking Torio v. Fontanilla. In
Torio v. Fontanilla, fiesta celebration is proprietary. Now, by analogy kuno,
centennial celebration should also be proprietary. So no sovereign function
involved.
SC disagreed. A town fiesta is different from a Centennial Celebration
because it is a celebration of our birth as a nation. Also, definitely, dili ni
siya legislative dili sad judicial; SC concluded executive function ni siya
because this involves implementation of a constitutional mandate one of
which is to be loyal to our cultural heritage. And one way of being loyal and
therefore give importance to our cultural heritage is by celebrating
centennial. So, kay kuno tungod nag implement siya ug Constitutional
mandate, involves na siya ug sovereign function.
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So you have the following characteristics, but the number 1 characteristic is
the most important. So it’s possible therefore nga basta naa la’y delegation
of sovereign function, pero wala’y compensation puwede pa siya public
office. Even if ad-hoc, just like what happened here – mu-end lang siya
after Centennial celebration, public office lang gihapon. For as long as the
first characteristic of delegation of sovereign function can be established.
TN of Laurel v. Desierto.
Now one importance of knowing the concept of public officer is of course
the jurisdiction of the Ombudsman. The Ombudsman exercises jurisdiction
over public officials and employees of GOCC WITH ORIGINAL CHARTERS.
Importance of the term “public officer”
The Office of the Ombudsman exercises jurisdiction over
public officials/employees of GOCCs with original charters.
It can only investigate and prosecute acts of the officials/employees of
government corporations. Although the government later on acquired the
controlling interest in PAL, the fact remains that the latter did not have an
“original charter.” [Khan vs. Ombudsman, 2006 (see also Carandang vs.
Ombudsman, 2011)]
This was the case when PAL was not yet reverted to Private Ownership.
Na-sequester man gud at one point so na public for a while and then
nahimo na pud siyang private. So there was an argument because more
than 51% of the shares were then held by GSIS, nahimo na siyang public
office. SC disagreed because, yes GOCC siya but PAL did not have an
original charter because it was incorporated under the corporation code
rather than a law having been passed and gave it its own entity
(personality).
PUBLIC OFFICE NOT A PROPERTY RIGHT
Another important principle is the idea of a public office as not a property
right (BAR). Public office is personal to the incumbent and is not a
property which passes to his heirs.
Public Office, not a Property!
“Public office is personal to the incumbent and is not a property
which passes to his heirs.” (De la Victoria vs. Comelec, 199 SCRA 561
[1991]) The heirs may no longer prosecute the deceased
protestee’s counter-claim for damages against the protestant for
that was extinguished when death terminated his right to occupy
the contested office. (Abeja vs. Judge Tanada [1994])
The issue in both De la Victoria v. Comelec and Abeja v. Judge
Tañada was: election protest ang protestant ni-claim ug damages. Ang
protestee mifile ug answer also with a counterclaim for damages. Ang
natabo in both cases, namatay ang protestee. In the case of the De La
Victoria v. Comelec the protestant was quick enough to waive its claim for
damages para wala na’y personality ang heirs. But even then, SC said,
upon the death of the protestee, his right to occupy the contested office
has been terminated and of course because that is not a property, it cannot
be transmitted to the heirs.
In the case of Abeja, the widow, supposedly substituted. But it’s not similar
to your regular civil cases where there will be substitution of heirs in case
the litigant dies. That’s one important principle. This is the general rule:
Public Office is not a property.
That is why, in the case of Libanan v. Sandiganbayan, there was a
suspension of a public officer. And when there was an allegation of lack of
notice in the imposition of the suspension, the respondent there argued
that there was denial of the right to due process. Unia ug tan-awon na
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nimong right to due process sa Constitution, it says, “No person shall be
deprived of life, liberty or property without due process of law”. So when
you invoke “due process”, and when you use the term “due process” then
you are invoking section Article 3 of the constitution. That’s the due process
clause and that applies only if what is involved is life, liberty or property.
Definitely kung public office ang hisgutan, dili na life, liberty. Ang
pinakaclose niana “property”. But SC said that’s wrong invocation of the
provision of the constitution because if you say, no notice was given and
this involves public office, do not invoke section 1 of article 3 because
property is not involved here. Kanang right to due process, applicable ra na
kung property involved. So what is applicable here? The basic tenet of “fair
play”.
Mao nay ge ingon ni Justice Mendoza na he clarified na if emplopyer fails to
comply with the two notice requirement, the show cause memo on the
notice of termination, the twin notice rule, you should not claim that there
is violation of due process because the invocation of due process is
appropriate only if you invoke it against the state or its agents. The bill of
rights primarily exist precisely to limit the powers of the government so you
can invoke specific provisions of Article III if you are using it against the
state or its agents. So if it is not the state or its agent that is involved in the
case, you look for another principle of law that is similar. Like basic tenet of
fair play or basic principle of reasonableness, so you don’t use na the term
“it is a violation of due process” if the requirement of twin notice rule is not
complied with.
However, in the case of the General Manager of Phil. Port Authority
vs. Monserate the Supreme court said:
Public Office, not a Property; Exception
 A public office is not property within the sense of the
constitutional guaranties of due process of law, but is a public
trust or agency; (Libanan vs. Sandiganbayan [1994])
 However, an incumbent’s right to office may be considered
“property” within the protection of due process in controversies
relating to the question as to who of two (2) persons is entitled
thereto. (The General Manager, PPA vs. Monserate [2002])
Can you think of an instance where atleast in that instance public office
may be treated as one involving property and if “yes” what is the reasoning
of the court? Yaw kalimte nga naa exception to the rule that public office is
not a property.
It does not necessarily follow that if one invokes security of tenure, that
publice office is treated as a property. So it is proper to invoke due process
of law under the constitution and an incumbent’s right to office will be
considered “property” within the protection of due process in controversies
relating to the position as to who of two persons is entitled to the office. Do
you know why?
Kung naa na magcontest duha you can invoke due process to the extent
and pwede sya i-treat as property, it is because of emoluments to the
office. Okay ra man na ikaw lang isa then you get it pero if duha gani the
question is kinsa nila duha ang entitled to the emolument like salary. So to
that extent, it should be treated as property and therefore, an invocation of
Sec.1 of ARTICLE III would be proper in that regard. We are just talking to
the poper perspective of the invocation ba of the principle.
DE JURE VS. DE FACTO OFFICER; SALARY
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De Jure Officer
A de jure officer is one who is in all respects legally appointed or
elected and qualified to exercise the office. The election or
appointment complied with all the requirements of law.
Wai question sa de jure kai sayun ra na. Basta qualified siya, the
requirements of the law are complied with - de jure. Both substantive and
procedural requirements complied with. Substantive: the qualifications;
procedural: the process of appointment and taking of oath. Because when
you’re talking here of public office, wala public office na wala nag require of
taking of oath.
In the Constitution, under the article on civil service, it is a constitutional
requirement that before you hold an office, you must take an oath. That is
to highlight the idea of public office as public trust and so establishing the
fiduciary relationship between the people and the public offical. That
fiduciary relationship mandates that the public officer becomes accountable
to the people. It is a procedural requirement. If you comply with the
substantive and procedural, the officer is de jure. If one is not complied, de
facto.
Problem
X and Y were candidates for Mayor in the Municipality of Z. X won
and was duly proclaimed. However, the Comelec disqualified X later.
On June 30, 2013, A, X’s wife, assumed the office of the Mayor
purportedly as X’s substitute. On June 30, 2014, A was ordered
removed from office. She then voluntarily stepped down. Is A entitled
to salary for the period June 30, 2013 – June 30, 2014?
The problem in the bar exam, it won’t categorically state that this is a
problem on public officers, it will be mixed with other subjects such as
election law etc. It may require the application of election law, admin law,
constitutional law yet the question is on the law on public officers but
requires resolving the other issues first.
Our idea is that a de facto officer is entitled to the salaries for the services
rendered. Otherwise, it is unfair and unreasonable; it’s not a sound rule,
not to give the person who has at least served 1 year. Yes? The answer is
No.
The answer is actually to determine first whether the officer is a de facto or
a usurper.
De facto officer has a colorable compliance of the substantive and
procedural requirements and has apparent authority. Examples of a de
facto officer:
- one who hasn’t taken oath; or
- one who is disqualified: held office but not Filipino citizen. Only after
2-3 years of holding office did the final decision come out declaring his
citizenship (not Filipino) as Thai. There is colorable compliance here.
He even took oath.
But in the case of the wife, dili sad siguro na mahitabo. Ang wife o, unsaon
pa man ug substitute…humana man ang proclamation, humana ang
election. Niadto lang gyud ang wife kaya bi niya ug iyaha; murag manager
sa bangko iyahang bana. Siya’y ga-hawd-hawd didto.  Obviously, in the
problem, the wife is a usurper.
What I’m trying to say is you should figure out one from the other -
3
De Facto Officer vs. Usurper
A “de facto officer” has color of right or title to the
office or has apparent authority to hold the office and has
done so in good faith, while a “usurper” has neither lawful
title nor color of right or title to the office; the act of a de
facto officer is valid as if it was done by a de jure officer but
that of a usurper is absolutely null and void; the former may
be removed through a direct proceeding only.
Q: So is a de facto officer entitled to salaries?
A: Yes.
Salary of De Facto Officer
 A de facto public officer cannot be made to reimburse
funds disbursed during his term of office because his acts
are as valid as those of a de jure officer.
 Moreover, as a de facto officer, he is entitled to
emoluments for actual services rendered.
[Sampayan vs. Daza, 1992]
*cannot be made to reimburse; because his acts are valid – just like the
Operative Fact Doctrine, considered valid because he wasn’t then declared
as not qualified.
Problem
X and Y were candidates for Mayor in the Municipality of Z. X won and
was duly proclaimed. An election protest was immediately filed by Y.
On June 30, 2013, X assumed office. On June 30, 2014, the election
contest filed by Y was resolved in Y’s favor. The decision already
became final and executory. X voluntarily stepped down as ordered.
Is X entitled to the salary he received? Should X reimburse Y of the
salary he received?
In Sampayan v. Daza, de facto officer is entitled to emoluments for
actual services rendered.
Kung entitled siya di na siya mo-reimburse kay entitledd man siya. But
what about the principle, the exception to the principle laid down in
Sampayan vs. Daza…
Q: A de facto officer is entitled to emoluments for actual services rendered.
What is the exception?
A: Exception is when there is a de jure.
Is that rule applicable in this problem? Do you consider Y as the de jure
officer?
Sakto man ka sa imong answer na: Sir kana na principle Sampayan mao na
siyay exception but the incumbent can recover. Mao man na. Kung naay
incumbent, ang de facto ni hold siya sa office at his own risk and therefore
whatever, emolument he may have received and naay de jure officer, the
de jure officer is entitled to the salary. So i-reimburse niya. Okay?
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But, the “incumbent” can recover!
 An incumbent of a public office may recover from a de facto
officer the salary received by the latter during the time of his
wrongful tenure, even though he (the de facto officer) occupied the
office in good faith and under color of title.
 A de facto officer, not having a good title, takes the salaries at his risk
and must, therefore, account to the de jure officer for whatever salary
he received during the period of his wrongful tenure.
 The Supreme Court has allowed a de facto officer to receive
emoluments for actual services rendered but only when there is no
de jure officer.
So kung may de jure officer, ang de jure officer ang entitled.
Q: Now, we go back to the problem. Do you consider Y as a de jure officer?
Is that the idea of a de jure officer?
A: You should distinguish a situation where there is an election contest
because in that situation, wala pay de jure diha. Okay? There is only a de
facto officer!
Ang idea ana na situation nga naay de jure and therefore mo-reimburse si
de facto, in a situation where, for example, like what happened in
Monserate case, PPA vs. Monserate, if two persons contest a particular
position. Different ang election contest class because di man siya contest
on who really is entitled but since it is an election protest, it’s just a
determination of who really won in the election.
But in a situation where, for example, ang nahitabo si Monserate: a
manager, may issue on whether a particular appointment of let’s say X as
branch or division manager, unya si Y, the one holding has not been
lawfully removed, for example, so wala xa na lawfully removed and
someone is placed in his office, so there is now a contest as to who really is
entitled to that office: the one that has been illegally removed or the one
who had been unlawfully appointed. In that situation, in reality, naa jud de
jure, in the beginning wala man gud nawa ang, in the example given, Y had
never been removed from office because the removal was invalid. So naa
nay nagkupot sa office ba unlike in election nga wala pa my nagkupot ana,
to be determined pa mana by election. But in a situation where someone is
already holding an office and gi-remove siya illegally and someone is put in
his place, then may contest na. So mao na ang situation nga naay de facto
and de jure, in which case, a de jure officer is entitled to the salaries. You
should distinguish one from the other.
In the example given, Y cannot be considered as a de jure officer because
he has not held the office. His right to hold the office is dependent on the
outcome of the election contest. Careful ka dha class.
Q: Now, question, from whom can a de jure officer recover? From the
government or from the de facto officer?
Who can recover and from whom?
As a rule, the de jure officer cannot recover from the government, but only
from the de facto officer, the salary it had paid to the latter. But, he can
recover the salary from the government or the de facto officer, if the
government continues to pay the de facto officer even after notice of
adjudication of the title to the de jure officer, the amount so paid after the
adjudication and notice. (Mechem)
A: This again comes from the authority in this matter, from his book he
said as a rule a de jure officer cannot recover from the government but he
should get the salary from the de facto officer.
4
Ang exception lang daw, wala pa ni gi-ask sa bar, if the government
continued to disburse the salary to the de facto officer after knowledge of
the defect of the title to the office the de facto officer, estopped ang
government and therefore pwede ang de jure to demand from the
government the payment of the salary.
This is to be tested yet by a SC ruling but this is an opinion of an expert, if
the government continues to pay the de facto officer even after notice of
adjudication of the title of the de jure officer of the amounts paid after the
adjudication and notice.
APPOINTMENT LATER DISAPPROVED; SALARY
Q: Is there such a thing as a prohibition against midnight appointment
made by local chief executive officials? [Same question/topic will also be
tackled in a later section]
We know there’s a midnight appointment prohibition against the president.
We just call it midnight, but the constitution is specific under Art VII sec. 15
that two (2) months before election and up to the expiration of the term of
the incumbent president, he is not allowed to make an appointment [note
from DBL: this is the complete definition under the law, your answer
shouldn’t stop in saying “…two months before election” include “…up to the
expiration of his term”]. That is the idea of midnight appointment.
The only exception is regular appointment if it is necessary to prevent any
prejudice to health and public safety.
In the case of Nazareno v City of Dumaguete GR No. 177795, June
19, 2009, there is no specific prohibition similar to the midnight
appointment rule of the president, therefore a local chief executive like a
governor or mayor may therefore, actually make midnight appointments;
the only prohibition is that there is a civil service rule governing midnight
appointments—the local chief executive can make midnight appointments
provided that it is not done by bulk.
What happened in Nazareno, 60 plus or 80 plus positions were filled up
before the expiration of the term of the mayor, and because it was a
violation of the civil service rule, it was disapproved by the civil service
commission (CSC).
By the way, there are two levels of appointing authorities: it can either be
(1) Presidential or (2) Non-presidential appointment.
If presidential, there are also different groups of presidential appointees.
The first group (1a) requires confirmation by the Commission on
Appointments while other groups (1b) do not require such confirmation.
For those appointees to be made by an appointing authority other than by
the president, like heads of office, it would require approval from CSC. Like
the appointments made by the city mayor in this case, disapproved by the
CSC.
The question now here, considering that these illegally appointed officers
received salaries upon their appointment, and the CSC decision became
final only two years after, would these illegally appointed officers be
entitled to the salaries they received for two years or should they return it?
Q: What is the rule in regard to the salary of an officer whose appointment
is later disapproved by the CSC?
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Salary of officer whose appointment is later disapproved by the
CSC:
 If the basis for disapproval is not “violation of civil service law,” say lack of
qualification, the appointee is entitled to a salary.
 However, if the disapproval by the CSC is on the ground that the
appointment was made in violation of civil service law, the appointing
authority shall be personally held liable for the salary of the
appointee. (Nazareno vs. City of Dumaguete, June 2009)
A: You need to make the following qualifications: If the basis for
disapproval is NOT a violation of the civil service law, but let’s say lacking in
qualification, he is entitled to salary because he’s a de facto officer.
On the other hand, if there’s a violation of the civil service law, the
appointing authority shall be personally held liable for the salary of the
appointee. If they get it from the appointees, chances are the salary
already paid out wouldn’t be returned (most probably they’ve spent it in
two to three years’ time). The best thing to do is to make the guilty
appointing authority liable to pay the salaries. Since it is a violation of the
civil service rules, the CSC can disapprove the appointment on two
grounds, first for lack of qualification, second for violation of civil service
rules.
Go over case of “Re: Alleged Nullity of the IBP Election…”. Still about de
facto and de jure officers. Nothing is new though. It’s just a reiteration of
existing rules.
QUALIFICATIONS
WHO MAY PRESCRIBE QUALIFICATIONS:
(1) Constitution
(2) Congress
o Limitations:
i. Congress cannot impose conditions of eligibility inconsistent
with constitutional provisions;
ii. Qualifications must be germane to the position (“reasonable
relation rule”)
iii. Cannot prescribe qualifications so detailed as to amount to
making an appointment in usurpation of executive power;
iv. Cannot prescribe qualifications in addition to those prescribed
exclusively by the Constitution
(3) Delegate of Congress
*Constitution - with respect to Constitutional positions, obviously the
Constitution provides for the qualifications.
*Congress/By Law - expect the Congress to have stated or enumerated the
qualifications.
There are certain limitations though to the power of Congress in prescribing
the qualifications; taken from the book of Mechem - basic rules: Congress
cannot impose conditions inconsistent with Constitutional provisions. That is
obvious. Qualifications must be germane to the position (Reasonable
Relation rule). The test is The Test of Reasonableness, because sometimes,
it is too detailed in a way that it is tailored to just fit one person. It is hard
to imagine for Congress to tailor qualifications to chosen individuals.
Our leading case here is the case of SJS vs. PDEA.
5
SJS vs. PDEA (2008)
The Congress cannot validly amend or otherwise modify the
qualification standards for Senators, as it cannot disregard, evade,
or weaken the force of a constitutional mandate, or alter or
enlarge the Constitution.
Accordingly, Sec. 36(g) of RA 9165 [Mandatory Drug Test] should
be, as it is hereby declared as, unconstitutional.
Naka remember mo atong Dangerous Drugs Act? Nga before ka maka hold
ug office, kinahanglan sa ka mo pass sa drug test. It was assailed as
unconstitutional because it seems to be asking an additional qualification to
hold the office. Therefore, the specific provision in the law (RA. 9165),
requiring for Mandatory Drug Test, before assumption into office, is an
additional qualification to that already provided for by the Constitution. As
you know, Congress cannot provide for additional qualifications if these
qualifications are Constitutional in origin.
If I were to make a dissent on the findings of the court, ang qualifications
in this case, sa qualifications sa Senators. Tanawon nimo ang qualification
sa Senators, those are substantive qualifications. Ang mandatory drug test
is not substantive, it is procedural. So I don’t think that the mandatory drug
test requirement is an additional qualification. Ako rah ni opinion ha, kinsa
raman pud tawn ta mag opine-opine.  Basta this is just my opinion.
Mandatory drug test is not substantive, it is procedural. Of course, it will
depend on the substance on your body. Whether ma tested ka negative or
positive, it depends on the substance on your body.  Mao siguro nah ang
thinking sa Supreme Court. Mura man nig procedural rah, feel nako.
QUALIFICATIONS TO OFFICE; WHEN TO POSSESS
Q: WHEN should a public officer possess the qualifications to the office?
(Kanang pangutanaha murag overkill nasad siguro kay) It would depend on
the position, Elective, Appointive, National or Local.
If Local (ELECTIVE), it depends on the qualification–
Frivaldo Doctrine
Unlike residence and age qualifications, the qualification
of “citizenship” for local elective officials under the Local
Government Code of 1991 must only be possessed at the time the
candidate becomes “elective official” by his valid proclamation and
at the start of his term. (Frivaldo vs. Comelec [1996])
Citizenship (only) - upon assumption into office;
Age – election day;
Residency - certain period of time before the Election Day.
Di gyud siya actually uniform. You can actually give a definitive answer to
that.
Of course APPOINTIVE, upon acceptance of the office, except to the extent
that appointment may be made temporarily, This is what brings the
confusion – that if the appointment is temporary, it is still valid because (by
the way as you would see later on, is given to who has all the
qualifications, including civil service eligibility; but if he has all the
qualifications and what is only lacking is the civil service eligibility and we
are talking here of career service, meaning civil service eligible for it is a
merit test, temporary appointment is allowed provided one has all the
qualifications and he only lacks civil service eligibility, he is allowed to be
appointed to the office on a temporary basis not to exceed 12 months)
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KINDS OF APPOINTMENT (BY THE PRESIDENT)
Q. What are the three kinds of appointment to be made by the President?
(BAR)
A.
1. Ad interim appointment;
2. Appointment made by an Acting President; and lastly
3. Temporary Appointment
The first kind of appointment is Ad interim appointment under Section 16 of
Article VII. It is a permanent appointment as opposed to temporary
appointment. Ad interim appointment is an appointment made by the
President when Congress is in recess. This is a permanent appointment! It
is valid until the disapproval by the Commission on Appointments, or until
the next adjournment of the Congress. There is no other basis of
terminating the employment except for those two conditions, which by way
are independent and separate events; so disapproval by the
Commission on Appointments or upon adjournment of Congress,
whether special or regular adjournment.
The second kind of appointment is an appointment made by an Acting
President. The appointment is valid only until the President, within 90
days from assumption into office, disapproves the appointment.
The third kind of appointment is in Section 14, of Article VII. It is an
appointment that is temporary. This is the appointment which is an
exception to the “midnight-appointment-rule” which states that no
appointment should be made within a period of time and the exception is
when it prejudices the public safety and general welfare and therefore
valid, provided it is temporary. So this is the meaning of temporary
appointment.
The qualification should be possessed by the public officer not only upon
assumption into office, or acceptance of the office (because appointment
by the way should be accepted), but the qualification must be possessed
during the entire incumbency of the public officer. Even if he had been
appointed and possessed all the qualifications, but later on, because of
supervening event, he fails to comply with all the qualifications, his holding
of the office is subject to a Quo Warranto proceeding. The Quo Warranto
proceeding is not instituted by the Civil Service Commission, but by the
Government through the Solicitor General. So that if you talk about specific
citizenship and he is a local government official, you apply the Frivaldo
Doctrine. Citizenship for local elective officials is not new to you.
PROPERTY QUALIFICATION NOT VALID
Q. In a distant past in the Bar exam, the question was about property
qualification; is this valid? (BAR)
Is property qualification valid?
Maquera vs. Borra (1965): Property qualification is
inconsistent with the essence and nature of a republican system
ordained in the Constitution and the principles of social justice
underlying the same. This implies necessarily that the right to vote
and to be voted for shall not be dependent upon wealth of the
individual concerned. Social justice presupposes equal opportunity
for all.
A. As you know, it is not. This is well settled in the case of Maquera vs.
Bora. Property qualification is inconsistent with the essence and nature of
a Republican System of government. This is our understanding. There is no
prohibition if we actually adopt a property qualification which by the way
was the case in the past. But you know already that the case of Maquera is
our understanding now – that it is against the idea of Republicanism and
6
the principles of social justice.
ACCEPTANCE OF OFFICE
Q: And the other concern here is this, (that is why you were asked to read
234 of the RPC), may a person be compelled to accept an office?
May a person be compelled to accept an office?
Generally, no. But an elected official who refuses without valid motive
to be sworn in shall be held criminally liable under Sec. 234 of the RPC.
Exception:
Compulsory military and civil service under Sec. 4, Art. II of the
1987 Constitution and pursuant to the National Defense Act.
A: It is a crime if you refuse without valid motive! Remember, must be an
elective official. An elective official, who refuses without valid
motive to be sworn in, shall be held criminally liable. This is Section
234 of the RPC.
General Rule: You cannot be compelled to act as that would be involuntary
servitude.
But take note of section 234 …
Exception: Military service and civil service in times of war.
Conscientious objector does not apply since national defense is more
paramount. The doctrine is subordinated by a more compelling state
interest.
EFFECTS OF PARDON
Effects of PARDON: On right to hold public office
RPC:
Art. 36. Pardon; its effect. – A pardon shall not work the
restoration of the right to hold public office, or the right of
suffrage, unless such rights be expressly restored by the terms of
the pardon.
Monsanto vs. Factoran:
 The pardon granted to petitioner has resulted in removing her
disqualification from holding public employment but it cannot
go beyond that.
 To regain her former post as assistant city treasurer, she must
re-apply and undergo the usual procedure required for a new
appointment.
(BAR) This case was asked in the bar many times. It distinguishes the
right to hold public office and the right to hold the specific public office (as
an effect of pardon). The right to hold public office once granted is
automatic but as to specific office, you cannot go back to your previous
office as a matter of right. You need to reapply.
What is only restored is the right to hold any public office but not the right
to go back to your previous public office.
For example, you held a public office, were sued criminally, were
administratively removed and as a result of conviction and imprisonment,
you can no longer hold the office. If you are granted pardon you cannot go
back to that public office. The right restored is the right to hold public office
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in general, not to a specific public office or your original position.
Aside from the principle that the effect of pardon does not automatically
give the grantee the right to hold the position he (public officer) previously
held, the other effect is as to the benefits.
Example: A public officer was convicted and the penalty includes perpetual
disqualification from holding public office.
Q: If someone is granted pardon, is he entitled to the salaries and
emoluments granted to the office?
Effects of PARDON: On Benefits attached to the office
A pardon looks to the future. It is not retrospective. It affords no
relief for what has been suffered by the offender. It does not impose upon
the government any obligation to make reparation for what has been
suffered. This would explain why petitioner, though pardoned, cannot
be entitled to receive backpay for lost earnings and benefits.
(Monsanto vs. Factoran [1989])
A: No. Jurisprudence teaches that Pardon is prospective, or it looks to the
future and not retrospectively. Hence, no backpay shall be granted because
this comes within the purview payments made as reparation for what has
been suffered in the past. 2
APPOINTMENT; APPOINTMENT VS. DESIGNATION;
PERMANENT VS. TEMPORARY APPOINTMENTS; CAREER VS.
NON-CAREER SERVICE; ROLE OF CIVIL SERVICE
COMMISSION (CSC); CAREER EXECUTIVE SERVICES (CES);
DISCRETION OF APPOINTING AUTHORITY
Appointment
I. Essentially “Executive”; cf. “residual power of the President;
II. Appointment generally requires that it be “in writing”;
III. Different from “designation” (although some appointments
would use the term “designate”; what controls is the nature);
IV. Requires: (1) that the appointing authority is vested with that
power; (2) the appointee possesses all the qualifications
(including civil service eligibility) and none of the
disqualifications; (3) the position is vacant; (4) the
appointment is approved by the CSC; (5) the appointee accepts
by taking the oath and discharges the functions.
Basic Characteristics of the Power of Appointment
I. It is essentially executive
If there is no law that identifies the appointing authority then the
appointing power is vested in the President because of the Residual Power
of the President.
II. Appointment generally requires that it be “in writing”
This important because a public office is a public trust and there is
therefore a fiduciary relationship established the moment a person occupies
a said office. The people would be interested in knowing the exact evidence
of that fiduciary relationship and the best evidence that the people can look
into is the written memorial or appointment.
III. Appointment is different from designation.
But there is a caveat because some appointments use the term
“designate”, however it does not necessarily follow that the process is
7
designation rather than appointment. It is not the term used which
classifies whether such act is appointment or designation. Instead, one
must look at the circumstances to properly identify the nature of the act.
The title is appointment paper but the text says Mr. X, you are hereby
designated as etc. so the question now is, is this designation or
appointment. The rule is to look into the circumstances of the case,
whether it is appointment or designation. We will go to the designation
later on.
IV. And finally, appointment to be valid must comply with
five requisites.
(1) That the appointing authority is vested with that authority to appoint
either by the Constitution or by law;
(2) The appointee possesses all the qualifications and none of the
disqualifications, and qualifications here include civil service eligibility.
Again, as provided for by law or by the Constitution depending on the
position involved.
(3) The position is vacant. When you say appoint someone, it presupposes
that you are to put that someone to a position. And putting someone to a
position presupposes vacancy. You cannot validly appoint a person to a
position that is not validly vacated. Therefore if we relate this to abolition
of offices for example, we need to review our rules on valid abolition of
office. Because if the abolition of office is invalid, then the position is not
rendered vacant. So even if appointment was validly made in other
respects, but there is no valid vacancy, it can be nullified on that ground.
(4) The appointment is approved by the CSC as a general rule, because not
all positions would require the approval of the CSC. Some positions would
not require the approval of CSC but the approval of someone else, like
those positions enumerated under Section 16 of Article VII of the
Constitution where certain positions are to be appointed by the president
with the confirmation of the Commission on Appointments. And later on
you will see the difference between the authority of the CSC in this regard
and that of Commission on Appointments.
So exception to the CSC approval would be Presidential Appointees,
Members of the Armed Forces, Police Force, firemen, and jail guards
because they belong to the local government unit’s operational control of
their local chief executive.
(5) The appointee accepts by taking the oath and discharges the functions.
ROLE OF CIVIL SERVICE COMMISSION; VS. COMMISSION ON
APPOINTMENTS
Let’s take a look at this problem. I’m not sure if you are familiar with the
facts of the case.
Problem
Mayor X appointed A as Administrative Officer II of Cebu City. The
appointment states that it was “permanent”. B questioned the appointment
on the ground that he is next in rank being the incumbent Administrative
Officer I while A came from another department or office of the City Hall.
The CSC approved the appointment of A but with a notation that it was
“Approved as Temporary”. CSC justified its action on the ground that B was
better qualified than A.
A. Was the act of CSC proper?
B. How do you distinguish the function of CSC from the Commission on
Appointment’s?
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DBL: Dili. (asks for volunteer)
Student: CSC’s function is to determine if the appointee has the
qualification. But it does not have the authority to substitute its own choice
for the appointee sir. Because appointment is discretionary power of the
appointing authority
DBL: If you say that the authority of the appointing authority is
discretionary then I would ask you to answer the second question. Because
if for example the president makes an appointment, but it is not approved
by the CA (Commission on Appointment), for those positions that would
require confirmation by the CA, is it not that the president has no other
choice but to respect the decision of CA. So in that regard would the theory
or rule that the appointing authority’s power is discretionary would not be
anymore be correct.
DBL: di ba, mao ni imo answer, CSC’s function is limited only to the
determination of WON the appointive applicant possesses the qualifications
and none of the disqualifications and you added a second layer, that the
appointing authority’s power is discretionary, so he has the discretion to
decide not the CSC. Niya, period.
What about the 2nd question? Ngano lagi ang president if mo appoint siya,
it would be subject to the confirmation of CA and he has to accept the
rejection of CA? Therefore it’s not the reason nga discretionary ang correct
answer… Well, it is correct, but not the perfect answer. (See cases of
Lopez vs. CSC, Lapinid vs. CSC, Luego vs. CSC.)
These are the 2 layers of your answer:
First -
Appointing Authority’s Discretion
• The appointing authority is given ample discretion in the
selection and appointment of qualified persons to vacant
positions, provided that the exercise thereof is in good faith for the
advancement of the employer's interest and not for the purpose of
defeating or circumventing the rights of the employees under special laws
or under valid agreements and provided further that such prerogatives are
not exercised in a malicious, harsh, oppressive, vindictive or wanton
manner, or out of malice or spite. (Lopez v. CSC [1991]); Lapinid v. CSC
[1991)
And then you’ve learned that the role of the CSC in appointment is limited
only to attestation -
Role of CSC in Appointment: “Attestation only”
• Civil Service Commission has no power of appointment except
over its own personnel. Neither does it have the authority to review the
appointments made by other offices except only to ascertain if the
appointee possesses the required qualifications. The determination of who
among aspirants with the minimum statutory qualifications should be
preferred belongs to the appointing authority and not the Civil Service
Commission. It cannot disallow an appointment because it believes another
person is better qualified and much less can it direct the appointment of its
own choice. (see Luego vs. CSC [1986]; Province of Camarines Sur vs. CA
[1995])
When you say attestation, to determine WON or to attest WON the person
is qualified or has disqualifications. This is because if you look at the power
of CSC … what the SC mentioned in these cases was a specific provision in
the Civil Service Law that refers to the specific power of the CSC to attest,
by attesting, meaning just to determine whether the person, the appointed
person possesses the qualification and none of the disqualifications.
8
And this is important, because this is not found in the power of the CA. So
the only reason why the role of the CSC is only limited to attestation,
because of the Civil Service Law which fixes the discretion of the CSC. That
is different from the CA because ang authority nila in approving or
disapproving, confirming or not confirming the appointments of the
President, is plenary. So the discretion of the Commission on Appointments
is plenary while the Civil Service Commission is limited to attestation only.
So it is not only the idea that the appointing authority is discretionary that
would justify the answer that the act of the civil service commission is
improper.
Q: The corollary question is what now is therefore is the nature of the
appointment of A, is it temporary or still permanent?
A: Again if you go back to the idea that the authority of the CSC is only to
attest then the CSC cannot change the nature of the appointment. So if it
had been or that the appointee had appointed under permanent
appointment status then that should be the nature of his appointment and
the civil service commission cannot override the nature of the appointment
made by the appointing authority. That is the part of the appointing
authority’s discretion. TN; BAR
NEXT-IN-RANK RULE
Q: What about the reasoning of B, that he is entitled to the position. Is B
correct in saying that he is entitled to the position simply because he is the
incumbent Administrative Officer 1?
A: This brings me to the concept of next-in-rank rule. This rule does not
provide that the person next in rank is absolutely and by legal right entitled
to the appointment because when you say next in rank it refers only to
preferential consideration for the promotion to the higher vacancy.
“Next-in-Rank Rule”
• One who is next-in-rank is entitled to preferential consideration for
promotion to the higher vacancy but it does not necessarily follow
that he and no one else can be appointed. The rule neither grants a
vested right to the holder nor imposes a ministerial duty on the appointing
authority to promote such person to the next higher position. Thus, an
officer lower in rank but of superior qualification may be promoted
instead. (see also Luego vs. CSC)
The next in rank rule should also be distinguished from a situation where
an office had been validly abolished and a new one had been validly
established. Under the Civil Service Law the moment an office is abolished,
so there are affected personnel, and a new one is created under the civil
service law, those affected by the abolition of the office are preferred when
it comes to filling up the position in the newly created office. The next in
rank rule is irrelevant in that situation. In fact there is no such thing as
preferential consideration to a person who probably is the next in rank.
Example: if the newly created office assumes a higher position in the
hierarchy. There will always be a person who can claim the next in rank.
But if the situation is that an earlier office is abolished and a new one is
established, then we apply the civil service rule on giving preference not to
the one who is next in rank but to those who had been effected by the
abolition of the office. (TN)
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Questions:
Distinguish:
1. Appointment from Designation
2. Permanent from Temporary
3. Dismissal from Expiration of Term
4. Career vs. Non-Career Service
APPOINTMENT VS. DESIGNATION
In appointment, someone has not yet occupied an office; precisely
appointment siya, “designated” to an office; in designation, giving of
additional function to one who is already in office.
DBL: What is the importance of telling the difference? Are there significant
rules that are significant to one and not the other?
Student: Salary- in designation, even if there are additional functions, the
salary remains the same because the designation pertains to single office.
Emoluments during retirement – there are no additional emoluments for
designation, the exception is if there is a law which requires or grants
additional emoluments. The retirement should be based on the highest
salary. In a case, there was an issue on designation and appointment. It
was contended by the Commission on Audit that it should be the highest
salary that should be made as basis for the retirement and should only be
the only for which the person has been appointed. However, the rule is
different because the Exceutive Order provided that it should be based on
the highest salary—actual salary received without qualification as to
designation or appointment.
DBL: Other than the benefits and emoluments, what other legal
significance?
Student: Security of Tenure.
DBL: Very good. So aside from benefits, we talk about the security of
tenure.
Student: in temporary sir, his appointment is dependent on the discretion
of the appointing authority. So as long as the appointing authority allows,
then he remains in the position. In other words, it is pleasure of the
appointing authority.
DBL: In other words, basically there is no security of tenure in the status of
an employee or officer who was merely been designated. So for
designation, there is no security of tenure. But in appointment, there is
security of tenure. That is correct. So you have to read the cases of
Santiago vs. COA, Sevilla vs. CA and Santos, and TESDA vs. COA in
this regard. [TESDA digest in p. 14]
“Appointment” vs. “Designation”
• Appointment is the selection by the proper authority of an
individual who is to exercise the functions of a given office;
• Designation, on the other hand, connotes merely the imposition of
additional duties, usually by law, upon a person already in the public
service by virtue of an earlier appointment (or election).
= No Security of Tenure and No Additional Benefits.
(see Santiago vs. COA [1991]; Sevilla vs. CA Santos [1992]; TESDA
vs. COA [2014])
So the effect would be there is no security of tenure in designation and
general rule, there is no additional benefits unless of course, additional
9
benefits are provided for by law. So that is one area that you need to
master—Appointment vs. Designation.
PERMANENT VS. TEMPORARY APPOINTMENT
Permanent vs. Temporary Appointment in Civil Service
Permanent – the appointee meets all the qualifications and
requirements including the appropriate eligibility requirement (civil
service eligibility requirement); it lasts until lawfully terminated.
Temporary – the appointee meets all the requirements for the
position except the appropriate civil service eligibility. It shall not
exceed 12 months and employment ends ipso facto with or without
qualified replacement. VS. “Co-terminus”
(See Pangilinan vs. Maglaya [1993]); Province of Camarines vs. CA
[1995])
Student: Permanent appointment sir is extended to those persons who
already possess the necessary qualifications. While temporary are extended
to those who may not have yet possessed the necessary qualifications.
DBL: We need to fine-tune the answer. Because permanent and temporary
appointees possess all the qualifications. The distinction is that in
permanent, civil service eligibility is already included. In temporary, all
qualifications must also be complied with. The only exemption is the civil
service eligibility.
Let us say you are appointed to the position that would require you to be
an LLB graduate, and then wala kay civil service eligibility. What I know is
that if you did not graduate with honors, I think you need to pass the civil
service exam in order to be a civil service eligible. So if you possess all the
qualifications like LLB, Filipino Citizen and all, except the civil service
eligibility, you can actually be appointed. But the appointment can only be
temporary.
In fact, it is also important for you to note the period of a temporary
appointment—it should not exceed 12 months and in fact, this is automatic,
ipso facto after 12 months, even if there is no one qualified to replace, the
temporary appointment has to be terminated.
Different ang co-terminus because while temporary ang co-terminus in the
sense that he serves at the pleasure of the appointing authority ang
temporary lang is specific in the sense that 12 months ra sad siya. Whereas
ang co-terminus, kung 3 years ang appointing authority kay mayor man,
then 3 years ang iyahang period sa employment. Temporary gihapon in
that sense. One who is assuming an office in an acting capacity, as you
have read in the cases cited, is also possessing a temporary appointment or
position. So you have to distinguish between permanent and temporary
appointment.
MIDNIGHT APPOINTMENTS
I mentioned the case of Nazareno vs. City of Dumaguete last time. So this
is the Civil Service Resolution or rule that I have mentioned. Items no. 3 (d)
and 4 of CSC Resolution No. 010988 dated 4 June 2001.
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Is “MIDNIGHT APPOINTMENT” prohibited in LOCAL
APPOINTMENTS?
Items No. 3(d) and 4 of CSC Resolution No. 010988 dated 4 June
2001, prohibits the outgoing chief executive from making “mass
appointments‖ after elections.” The term “mass appointments”‖ refers
to those issued in bulk or in large number after the elections by an
outgoing local chief executive and there is no apparent need for their
issuance. (Nazareno vs. City of Dumaguete, June 2009).
So this Civil Service resolution prohibits the outgong chief executive from
making mass appointment after election. Wala nuon nagbutang ug
threshold as to how many. But mass apointments would refer to those
issued in bulk or in large number after the elections by an outgoing local
chief executive.
Pero naay qualification ha, which is “there is no apparent need for their
issuance.” And usually, there is really no apparent need. It is hard to justify
the appointment by bulk by an outgoing Local Chief Executive by reason of
what, unsa man nah nga necessity kaha? It is hard to imagine if that can
really occur.
So there is not such a thing as a prohibition against midnight appointment
for Local chief Executive but what is prohibited only is mass appointment if
done so after the election and mass appointment refers to appointment by
bulk.
CAREER VS. NON-CAREER SERVICE
“Career” vs. “Non-career” Service
Career – characterized by: (1) merit and fitness test [competitive exam] or
highly technical qualification; (2) Security of Tenure; and (3) Opportunity
for Advancement to higher career position.
Non-career – characterized by (1) not based on competitive exam nor
highly technical qualification; (2) Tenure is limited by law or co-terminus
with appointing authority.
Career from non-career service, you also have to take note of the
characteristics. The law will provide whether such a position is career or
non-career.
The Civil Service examination is the competitive exam that is referred to
here. How to tell whether it is Career or Non-career, it depends on the law
that creates the office or position. And there are exceptions however to
competitive exam: policy-determining, primarily confidential, and
Highly technical positions.
Competitive Examination
• The Constitutional provisions merely constitute the policy-
determining, primarily confidential, and highly technical
positions as exceptions to the rule requiring appointments in the Civil
Service to be made on the basis of merit a fitness as determined from
competitive examinations.
• Although exempt from competitive exam, they cannot also be
removed without cause.
Usually for lawyers, we belong the either policy-determining, primarily
confidential (kanang mga legal staff) and highly technical positions.
There are third level positions such Undersecretary, Assistant Secretary, etc
as provided for here and may be identified by the Career Executive Service
Board (CESB).
10
Career Executive Service [CES]
Third Level positions such as Undersecretary, Asst. Secretary, Bureau
Director, Asst. Bureau Director, Chief of Dept. Service and other officers of
equivalent rank as identified by the Career Executive Service Board [CESB],
all of whom are appointed by the President.
They have NO SECURITY OF TENURE, may be removed anytime unless
they have been issued CESO rank by the President.
Never been asked in the Bar because you still have to look at the listing of
the Board as to these positions. That’s why I simply said third level
positions such as, so we can’t say that these are the only. What is
important is if these are the positions identified by the Board, they have no
security of tenure and therefore can be removed anytime. The only
exception is when the President issues or gives a CESO rank to the officer.
HOLD-OVER PRINCIPLE
HOLD-OVER PRINCIPLE
 A PUBLIC OFFICER WHOSE TERM OF OFFICE HAS EXPIRED OR
WHOSE SERVICES HAVE BEEN TERMINATED IS ALLOWED TO
CONTINUE HOLDING OFFICE UNTIL HIS SUCCESSOR IS APPOINTED
OR CHOSEN AND HAS QUALIFIED.
RATIONALE: PUBLIC INTEREST; PREVENT HIATUS IN PUBLIC
SERVICE
 RULES:
WHEN LAW PROVIDES FOR IT: INCUMBENT WILL HOLD
OVER EVEN IF BEYOND THE TERM FIXED BY LAW UNTIL SUCCESSOR
IS CHOSEN/ APPOINTED
WHEN LAW IS SILENT: UNLESS EXPRESSLY OR
IMPLIEDLY PROHIBITED, INCUMBENT MAY HOLD OVER
Hold-over principle as a general rule is not allowed. It is only allowed when
the law allows holding office beyond a fixed term. Hold-over principle is
allowed by law as in the case of BARANGAY OFFICIALS. And there is
implied prohibition to hold-over if there is a fixed term because that is an
indication that after the end of the term, the officer has to step down. But
supposedly it is allowed to prevent a vacuum in public office.
DOCTRINE OF OFFICIAL IMMUNITY
For holding or detaining certain products, these officers of the BOC were
sued for damages for the performance of their functions. Even if they were
sued in their personal capacity, what did the SC say? (Farolan case)
DOCTRINE OF OFFICIAL IMMUNITY
It is the duty of the court to see to it that public officers are not hampered
in the performance of their duties or in making decisions for fear of
personal liability for damages due to honest mistake. Whatever damage
they may have caused as a result of such an erroneous interpretation, if
any at all, is in the nature of a damnum absque injuria. Mistakes
concededly committed by public officers are not actionable absent any clear
showing that they were motivated by malice or gross negligence amounting
to bad faith. After all, “evenu under the law of public officers, the acts of
petitioners are protected by the presumption of good faith.” (Farolan v.
Solmac Marketing Corp., G.R. No. 83589, March 13, 1991)
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This is related to the DAP Case: WON the Secretary of Budget and
Management should be held liable for the wrong interpretation of the idea
of spending a budget or certain appropriation for another purpose different
from the appropriation made by Congress.
The justification supposedly was, they were SAVINGS. But the SC in the
DAP case ruled that savings can only be determined at the end of the year
or the lapse of December 31 of a particular year and that is when the
government can tell whether there are savings or not. So the executive
cannot for example determine in the middle of the year such appropriation
as savings until the end of the year. However, the interpretation of the
Secretary was different. Should the latter be held liable for its wrong
interpretation? No. The reasoning here is given by the Supreme Court in
the case of Farolan. (Refer above)
And of course as you know since this is a mental element, you need to
determine the presence or absence of this mental element by the
observable overt acts of the official. You have to analyze properly the
problem if there is any indication of such malice or gross negligence. One
can be grossly negligent depending on the facts of the case.
DOCTRINE OF OFFICIAL IMMUNITY; EXCEPTIONS:
- Motivated by malice
- Gross Negligence amounting to bad faith
- Bad Faith
CIVIL LIABILITY (DAMAGES)
 WHEN PERFORMING OFFICIAL FUNCTIONS, PUBLIC OFFICERS ARE
LIABLE ONLY IN CASE OF MALICE, BAD FAITH, GROSS
NEGLIGENCE;
 NOT LIABLE FOR “WRONG INTERPRETATION OF LAW”;
 HEADS ARE LIABLE FOR ACTS OF SUBORDINATES ONLY WHEN HE
HAS “AUTHORIZED BY WRITTEN ORDER THE ACT COMPLAINED OF”
 BUT: Section 24 OF LCG OF 1991 provides: Liability for Damages.
- Local government units and their officials are not exempt from
liability for death or injury to persons or damage to property.
In the case of Lansang vs. CA, SC said when performing official functions,
public officers are liable only in case of malice, bad faith, or gross
negligence amounting to bad faith. These are the bases for holding public
officials liable for damages.
THREE-FOLD LIABILITY RULE
Three-fold Liability Rule
Basic in the law of public officersis the three-fold liability rule,
which states that the wrongful acts or omissions of a public officer may give
rise to civil, criminal and administrative liability. An action for each can
proceed independently of the others. (Domingo v. Rayala, G.R. No. 155831,
155840, 158700, February 18, 2008)
For a singular act, a public officer may be held liable, either:
1. Administratively - whether he should be disciplined or removed
from office
*Disciplined: penalties like suspension, reprimand and
11
 other forms of administrative sanctions PRESUMPTION OF REGULARITY OF PERFORMANCE;
2. Criminal Liability - if the acts of the officer constitute a crime EXCEPTIONS
3. Civil Liability - if acts of officer constitute a ground for damages

Any of these 3 can proceed independently of one another. Sa bar exam, [Not discussed. Delos Santos case digest in p. 15]
this has been asked many times. Usually ang situation kay naay criminal
liability, unya acquitted or dismissed. And then later on, either
administrative or civil liability ang gi-file thereafter. Unya ang ground sa
LIABILITY OF SUPERIOR OFFICERS FOR ACTS OF
motion to dismiss would be the acquittal sa criminal case, and therefore
SUBORDINATES
cannot be held liable administratively or civilly. You know how to address
that problem already.
Q: What is the reasoning of the Arias doctrine?
Q: Ngano naa may Threefold Liability Rule? Explain why this principle
exists. And why is it that one action can proceed independently of the A: A superior should not be held liable for any irregularities, omissions
others? committed by subordinates and cannot be considered in conspiracy
automatically with the subordinates. Because the standing policy is that …
A: [quoting below]
1. Quantum of evidence is different
2. Different causes of action LIABILITY FOR ACTS OF SUBORDINATES

Quantum of Evidence required is different

Criminal – proof beyond reasonable doubt
Administrative – substantial evidence
Civil – preponderance of evidence
But so what if lahi ilang requirements? Tanawn nimu ang hierarchy of proof
required. So sayon ra kaayo na ma-justify. One may have been acquitted
for failure to prove guilt beyond reasonable doubt, but the same person
may be held civilly or administratively liable because of the lower
requirements of evidence needed.
Different Causes of Action
Kung ato ning balihon, pananglitan, not liable siya civilly. So ni-ingon na
ang court in a civil case, so this person, the public officer under the facts is
so established not liable unya ikiha siya criminally.
Q: Is it a sound argument to say, wala man gani siya na civilly liable sa
preponderance of evidence then logically, he cannot be convicted?
DBL: so dili lang di-ay na about the burden of proof requirement.
Student: they also have different causes of action.
DBL: for me that is the better answer, different causes of action.
Q: What is a cause of action?
A: There is an act or omission that is in violation of a right. So there is
invasion of right and that is determined by law. And because there are
different causes of action, different law ang nag govern. Of course, criminal
law – revised penal code; Civil case – generally the Civil Code;
administrative lain sad.
For me it’s not only the burden of proof requirement. As I have said kung
balihon nimo dili man mo follow.
Remember, however, the exception to civil liability can still prosper even if
there is acquittal because one exception is when the acquittal is founded on
the fact that the act as alleged had not in fact been committed by the
accused. Kung ma-o nay basis sa acquittal then wala say basis for civil
liability. But this is quite complicated because there are also what we called
independent civil actions and actions that are not independent. So dili na
fixed rule ba class nga three-fold liability automatic sad.
• ARIAS DOCTRINE (1989):
We would be setting a bad precedent if a head of office plagued by all
too common problems - dishonest or negligent subordinates, overwork,
multiple assignments or positions, or plain incompetence is suddenly swept
into a conspiracy conviction simply because he did not personally examine
every single detail, painstakingly trace every step from inception, and
investigate the motives of every person involved in a transaction before
affixing, his signature as the final approving authority.
Under the Arias doctrine, he is not supposed to examine extensively the
record before he affixes his signature in approving a particular project.
But if we take a look at the case of Cesa vs. the Ombudsman, which by
the way cited the earlier case Alfonso vs Office of the President, and
in relation to the much later case of Bacasmas vs. Sandiganbayan.
In the case of Cesa…this is a Cebu City case, there were request for salary
advances, approved by the cash division, then occupied by Bacasmas. And
then the City Treasurer at that was Eustaquio Cesa and the City
Administrator was Atty. Allan Gaviola. So ang policy sa approval of cash
advances would be mo prepare ang Head sa Cash Division sa mga forms
and then there will be three boxes to be signed by the Head of the Cash
Division, the second box to be signed by the City Treasurer and the third
box to be signed by City Administrator. So three signatures.
Kaning si Cesa ni invoke sa Arias doctrine because city treasurer man siya
and he said ang iyang signature would only depend on whether the cash
division head has also approved the release of the cash advances. On the
other hand, ang city administrator would also sign if he finds there the
signatures of the city treasurer and the head of the cash division. In both
cases of Cesa and the City administrator Gaviola, the Arias doctrine was not
applied.
Issue on both cases is that whether or not the superior can be held
criminally liable in conspiracy with the subordinates.
The difference of both cases, the Cesa and Santillano, is that in Cesa, if
public official’s foreknowledge of facts and circumstances that suggests
irregularity (the irregularity is not apparent).

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 ALFONSO DOCTRINE (2007);
 Reiterated in CESA (2008): I already mentioned there are rules on liquidation on previous cash
A public official's foreknowledge of facts and circumstances that advances before another set of request for cash advance be approved. Ok
suggested an irregularity constitutes an added reason to exercise a greater then, that should be settled.
degree of circumspection before signing and issuing public documents. By
failing to prevent the irregularity that a superior had reason to
suspect all along or to take immediate steps to rectify, the LIABILITY FOR ACTS COMMITTED OUTSIDE OF DUTY
superior will be held liable.

Whereas in Santillano case, the irregularity is apparent because in that
case there is a project and a contractor. The project which is supported by
a 4.5m budget released for that particular project but the completion cost
only amounts to 3m plus. This involves the difference between the budget
released and the completion cost. Secondly, the documents supporting the
project are not voluminous unlike in arias case which the irregularity cannot
be discovered easily; irregularity is not apparent; irregularity cannot be
expected to be discovered right away.
If the irregularity is apparent and the files are not bulky or voluminous, the
superior is required to check and determine whether or not there is an
irregularity. (Santillano case governs); but if the irregularity is not apparent,
Cesa and Bacasmas case will govern. Irregularities cannot be seen but
there are facts and circumstances that would suggest irregularity. Public
official’s foreknowledge of facts and circumstances that suggested
irregularity constitutes an added reason to exercise a greater degree of
circumspection before signing and issuing public documents.
But in the case of Bacasmas vs. Sandiganbayan, ang involved man gud
to ug cash advances nya according to the law on cash advances, d i class
kanang cash advances aprobahan mana class kung na liquidated ang
earlier cash advances common na siya nga practice, so kung ikaw ang taga
cash division kung naay mu request ug cash advance mg prepare ka, ikaw
nga city treasurer even if ni sign ang head sa cash division kahibaw man ka
nga cash advance na you are familiar with the policy before nmu
approbahan ang cash advance, ang earlier cash advances duly liquidated,
and that’s a very simple task to do, pag tan-aw nimu unsa mani cash
advance, unsa man to kani adto na liquidated ba ni, tan.awa kuno b, ug
wala ayaw ug sign, very simple ok?
Q: Is a public officer liable for acts not related to their office?
I’m sure you won’t be surprise by the rule. It’s hard to distinguish noh the
private and public life of a public officer. It’s really hard to distinguish so
“acts that have nothing to do with their functions will still be a basis for a
disciplinary action”.
For example, a school teacher borrowing money and failed to pay---- every
time sir sends a demand letter, the last paragraph of my demand letter i
ingun nako “we reserve the right to initiate administrative action or actions
before the office of the ombudsman for your failure to honor a just
obligation”. Kay may SC decision na man ana failure to pay a a valid or just
debt or obligation is actionable for those who are in public employment.
Pwedi ka ma disciplina for non-payment of debt, so maka ingun ka, so may
labot ani sa akung pgka maestra ani sa akung pagka borrower, because it’s
really difficult to distinguish the public and private life of a public officer or
employee, so in fact if we talk about dishonesty for example, in order to
warrant dismissal need not be committed in the course of duty by the
person charged, so it refers to the person, not to the act now.
DISCIPLINE: Dishonesty committed outside of duty
• Dishonesty, in order to warrant dismissal, need not be committed in
the course of the performance of duty by the person charged.
• The private life of an employee cannot be segregated from
his public life. Dishonesty inevitably reflects on the fitness of the
officer or employee to continue in office and the discipline and morale
of the service. (Remolona vs. CSC [2001]

Ayaw ug hide sa principle sa ARIAS because that is a very simple thing to

do that’s why in ingun ang SC in Bacasmas, there was gross negligence AUTHORITY TO INVESTIGATE ACTS OF PUBLIC OFFICERS
amounting to bad faith, in fact there was kuno conspiracy, you know why?
It did not happen one time lang and that’s an added fact mao wala gyud ni
Finally, we have the aspect on the authority to investigate acts of public
tu-o ang SC nga ARIAS doctrine ang i apply, ok? So it had been for several
officers.
years cash advance! cash advance! Nya unliquidated ang earlier cash
advances, ok? So mao na siya class.
There is no rule, by the way, that only the Ombudsman can investigate.
Actually, any investigative office can investigate any public offcer. Naa lang
Bacasmas vs. Sandiganbayan
siya’y primary BUT NOT exclusive authority.
(July 10, 2013)

So this is how the SC stated this rule:

Petitioners cannot hide behind our declaration in Arias v.
Sandiganbayan that heads of offices cannot be convicted of a
Authority to Investigate Acts of Public Officers
conspiracy charge just because they did not personally examine every
single detail before they as the final approving authorities, affixed their
The Constitution, Section 15 of the Ombudsman Act of 1989 and Section 4
signatures to certain documents. The Court explained in that case that
of the Sandiganbayan Law, as amended, do not give to the Ombudsman
conspiracy was not adequately proven, contrary to the case at bar in
exclusive jurisdiction to investigate offenses committed by public officers or
which petitioners’ unity of purpose and unity in the execution of an
employees. The authority of the Ombudsman to investigate offenses
unlawful objective were sufficiently established.
involving public officers or employees is concurrent with other government
investigating agencies such as provincial, city and state prosecutors.
Also, unlike in Arias, where there were no reasons for the
However, the Ombudsman, in the exercise of its primary jurisdiction over
heads of offices to further examine each voucher in detail, petitioners
cases cognizable by the Sandiganbayan, may take over, at any stage, from
herein, by virtue of the duty given to them by law as well as by rules
any investigating agency of the government, the investigation of such
and regulations, had the responsibility to examine each voucher to
cases. (ALFREDO ROMULO A. BUSUEGO, petitioner, vs. OFFICE OF THE
ascertain whether it was proper to sign it in order to approve and
OMBDUSMAN [MINDANAO] [and] ROSA S. BUSUEGO, respondents., G.R.
disburse the cash advance.
No. 196842, October 09, 2013)
[digest available in p. 15]

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[digest available in p. 16] TESDA officials were merely designated with additional duties, the
ruling in Cantillo v. Arrieta on de facto officers need not be
So for those cases that are cognizable by the Sandiganbayan, the discussed.|||
Ombudsman has the primary jurisdiction and to implement or to put teeth
to this primary jurisdiction of the Ombudsman for cases that are triable by 2) The Director-General's blatant violation of the clear provisions of the
the Sandiganbayan (Salary Grade 27), the Ombudsman may take over at Constitution, the 2004-2007 GAAs and the COA circulars is equivalent
any stage investigations by the government. Pwede siya ka take-over but to gross negligence amounting to bad faith. He is required to refund
this does not mean that his jurisdiction is exclusive. It could happen that the EME he received from the TESDP Fund for himself. As for the
the investigation was started by the prosecutors and then it is taken over. TESDA officials who had no participation in the approval of the
excessive EME, they acted in good faith since they had no hand in the
[END of CLASS DISCUSSION] approval of the unauthorized EME. They also honestly believed that
the additional EME were reimbursement for their designation as
project officers by the Director-General. Being in good faith, they need
not refund the excess EME they received.
DIGESTS OF RECENT JURISPRUDENCE
Delos Santos v. COA, G.R. No. 198457, August 13, 2013
TESDA v. COA, G.R. No. 204869, March 11, 2014
Facts:
This case is about the controversy of the Tony N’ Tpmmy Health Program
Facts:
(TNT) which seeks to aid indigent patients in Vicente Sotto Memorial
Upon post audit, the TESDA audit team leader discovered that for the
Medical Center (VSMMC) in providing medicines for free. This program was
calendar years 2004-2007, TESDA paid Extraordinary and Miscellaneous
funded by the former Congressman Tony Cuenco, pursuant to a MOA with
Expenses (EME) twice each year to its officials from two sources: (1) the
VSMMC. It was agreed, inter alia, that: (a) Cuenco shall identify and
General fund for locally-funded projects, and (2) the Technical Education
recommend the indigent patients who may avail of the benefits of the TNT
and Skills Development Project (TESDP) Fund for the foreign-assisted
Program for an amount not exceeding P5,000.00 per patient, except those
projects.||| The payment of EME was authorized under the General
with major illnesses for whom a separate limit may be specified; (b) an
Provisions of the General Appropriations Acts of 2004, 2005, 2006 and
indigent patient who has been a beneficiary will be subsequently
2007 (2004-2007 GAAs), subject to certain conditions, among others, only
disqualified from seeking further medical assistance; and (c) the hospital
to the ranks specified and that miscellaneous expenses should not exceed
shall purchase medicines intended for the indigent patients from outside
P50,000 for each office of each of those officials.
sources if the same are not available in its pharmacy, subject to
reimbursement when such expenses are supported by official receipts and
The audit team issued Notice of Disallowance No. 08-002-101 (04-
other documents. When COA found out about the falsification and forgeries
06) disallowing the payment of EME amounting to P5,498,706.60 for being
on the medicine prescriptions, VSMMC Administration headed by VSMMC
in excess of the amount allowed in the 2004-2007 GAAs. In addition, the
Chief Delos Santos initiated a fact – finding committee to act on the matter
EME were disbursed to TESDA officials whose positions were not of
which yielded the finding that VSMMC was blinded by the TNT office and
equivalent ranks as authorized by the Department of Budget and
the staff of Cuenco. However, the Special Audit Team of COA held the
Management (DBM), contrary to the provisions of the 2004-2007 GAAs. It
following people solidarily liable for the disallowed funds supposedly as
indicated the persons liable for the excessive payment of EME: the
payment for the vaccines and medicines amounting to P3M: (a) for Delos
approving officers, payees and the accountants.|||
Santos, in her capacity as Medical Center Chief, for signing and approving
TESDA’s argument: TESDA insists on its interpretation justifying its
the disbursement vouchers and checks; (b) for petitioner Dr. Josefa A.
payment of EME out of the TESDP Fund. It argues that the 2004-2007
Bacaltos, in her capacity as Chief Administrative Officer, for certifying in Box
GAAs did not prohibit its officials from receiving additional EME chargeable
A that the expenses were lawful, necessary and incurred in her direct
against an authorized funding, the TESDP Fund in this case, for another
supervision; (c) for Antoni, in her capacity as Chief of the Pharmacy Unit,
office to which they have been designated.
for approving the supporting documents when the imputed delivery of the
medicines had already been consummated; (d) for petitioner Maureen A.
Issue:
Bien, in her capacity as Hospital Accountant, for certifying in Box B of the
1) WON TESDA is justified in granting Project Officers additional
disbursement voucher that the supporting documents for the payment to
EME despite the fact that they were not included in the ranks
Dell Pharmacy were complete and proper.|||
mentioned in the GAA
In defense, they raised this argument: VSMMC was merely a passive entity
2) If the answer is in the affirmative, who should be held liable to
in the disbursement of funds under the TNT Program and, thus, invoke
reimburse funds illegally released?
good faith in the performance of their respective duties, capitalizing on the
failure of the assailed Decisions of the CoA to show that their lapses in the
Ruling:
implementation of the TNT Program were attended by malice or bad
1) No. TESDA’s authorization of granting EME to project officers has no
faith.|||
legal basis. The position of project officer is not among those listed or
authorized to be entitled to EME, namely, the officials named in the
Issue:
GAA, the officers of equivalent rank as may be authorized by the DBM,
WON VSMMC can be presumed to be regular in the performance of its
and the offices under them. The underlying principle behind the EME
functions under the MOA of TNT, thus cannot be held liable for the
is to enable those occupying key positions in the government to meet
disallowed funds
various financial demands. As pointed out by COA, the position of
project officer is not even included in the Personnel Service
Ruling:
Itemization or created with authority from the DBM. Thus, the TESDA
NO. VSMMC may not invoke the presumption of regularity because it has
officials were, in fact, merely designated with additional duties, which
violated an explicit rule.
designation did not entitle them to additional EME. InDimaandal v.
COA, we held that designation is a mere imposition of additional
Jurisprudence holds that, absent any showing of bad faith and malice, there
duties, which does not entail payment of additional benefits. Since the
is a presumption of regularity in the performance of official duties.

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However, this presumption must fail in the presence of an explicit rule that
was violated. For instance, in Reyna v. CoA (Reyna), the Court affirmed
the liability of the public officers therein, notwithstanding their proffered
claims of good faith, since their actions violated an explicit rule in the
Landbank of the Philippines' Manual on Lending Operations. In similar
regard, the Court, in Casal v. CoA (Casal), sustained the liability of certain
officers of the National Museum who again, notwithstanding their good
faith participated in approving and authorizing the incentive award granted
to its officials and employees in violation of Administrative Order Nos. 268
and 29 which prohibit the grant of productivity incentive benefits or other
allowances of similar nature unless authorized by the Office of the
President. In Casal, it was held that, even if the grant of the incentive
award was not for a dishonest purpose, the patent disregard of the
issuances of the President and the directives of the CoA amounts to gross
negligence, making the ["approving officers"] liable for the refund [of the
disallowed incentive award].
Just as the foregoing public officers in Reyna and Casal were not able to
dispute their respective violations of the applicable rules in those cases, the
Court finds that the petitioners herein have equally failed to make a case
justifying their non-observance of existing auditing rules and regulations,
and of their duties under the MOA.
Petitioners' acts and/or omissions as detailed in the assailed CoA
issuances and as aforedescribed reasonably figure into the finding that they
failed to faithfully discharge their respective duties and to exercise the
required diligence which resulted to the irregular disbursements from
Cuenco's PDAF. In this light, their liability pursuant to Sections 104 and
105 of the Auditing Code, as well as Section 16 of the 2009 Rules and
Regulations on Settlement of Accounts, as prescribed in CoA Circular No.
2009-006, must perforce be upheld. Truly, the degree of their neglect in
handling Cuenco's PDAF and the resulting detriment to the public cannot
pass unsanctioned, else the standard of public accountability be loosely
protected and even rendered illusory.|||
Bacasmas v. Sandiganbayan, G.R. No. 189343, 189369, 189553,
July 10, 2013
Facts:
The following Cebu City Government officials, who were held liable for the
P9M accumulated shortage in the City’s funds from 20 September 1995 to 5
March 1998 from the cash and accounts of the paymaster, Luz Gonzales|
take part in the process of approving and releasing cash advances
described as follows:
A written request for a cash advance is made by paymaster Luz Gonzales
(Gonzales), who then submits it to Cash Division Chief Bacasmas for
approval. Once the latter approves the request, she affixes her initials to
the voucher, which she forwards to City Treasurer Cesa for his signature in
the same box. By signing, Bacasmas and Cesa certify that the expense or
cash advance is necessary, lawful, and incurred under their direct
supervision.
Thereafter, the voucher is forwarded to City Accountant Edna C. Jaca
(Jaca) for processing and pre-audit. She also signs the voucher to certify
that there is adequate available funding/budgetary allotment; that the
expenditures are properly certified and supported by documents; and that
previous cash advances have been liquidated and accounted for. She then
prepares an Accountant's Advice (Advice).
This Advice is returned with the voucher to the Chief Cashier for the
preparation of the check. After it has been prepared, she affixes her initials
to the check, which Cesa then signs. Afterwards, City Administrator Gaviola
approves the voucher and countersigns the check.
The voucher, the Advice, and the check are then returned to the Cash
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Division, where Gonzales signs the receipt portion of the voucher, as well
as the Check Register to acknowledge receipt of the check for encashment.
Upon receipt of the check, Gonzales encashes it at the bank, signs the
voucher, and records the cash advance in her Individual Paymaster
Cashbook. She then liquidates it within five days after payment.
A report of those cash advances liquidated by Gonzales is called a Report of
Disbursement (RD). An RD must contain the audit voucher number, the
names of the local government employees who were paid using the money
from the cash advance, the amount for each employee, as well as the
receipts. The RDs are examined and verified by the City Auditor and are
thereafter submitted to the Cash Division for recording in the official cash
book.
These officials now invoke the Arias Doctrine as defense.
Issue: WON the petitioners’ invocation of the Arias Doctrine is correct
Ruling:
NO. They are incorrect. Petitioners' acts not only show gross negligence
amounting to bad faith, but, when taken together, also show that there
was conspiracy in their willful noncompliance with their duties in order to
defraud the government.|||
Not only were petitioners unified in defrauding the government, but they
were also unified in not reporting the negligence of their cohorts because of
their own negligence. Cesa himself admitted knowing that Gonzales had
unliquidated cash advances, yet he signed the vouchers. He also failed to
inform the other officials that they should not sign the vouchers and
tolerated their negligence when they affixed their signatures thereto.
Petitioners, through their admissions before the Sandiganbayan, all knew
that there were irregularities in the vouchers; still they failed to correct one
another, because they themselves signed the vouchers despite the glaring
irregularities therein.
Petitioners cannot hide behind our declaration in Arias v.
Sandiganbayan that heads of offices cannot be convicted of a conspiracy
charge just because they did not personally examine every single detail
before they, as the final approving authorities, affixed their signatures to
certain documents. The Court explained in that case that conspiracy was
not adequately proven, contrary to the case at bar in which petitioners'
unity of purpose and unity in the execution of an unlawful objective were
sufficiently established. Also, unlike in Arias, where there were no reasons
for the heads of offices to further examine each voucher in detail,
petitioners herein, by virtue of the duty given to them by law as well as by
rules and regulations, had the responsibility to examine each voucher to
ascertain whether it was proper to sign it in order to approve and disburse
the cash advance.
ALFREDO ROMULO A. BUSUEGO, petitioner, vs. OFFICE OF THE
OMBUDSMAN (MINDANAO) [and] ROSA S. BUSUEGO,
respondents., G.R. No. 196842, October 09, 2013
Facts:
Private respondent Rosa S. Busuego (Rosa) filed a complaint for: (1)
Concubinage under Article 334 of the Revised Penal Code; (2) violation
of Republic Act No. 9262 (Anti-Violence Against Women and Their
Children); and (3) Grave Threats under Article 282 of the Revised Penal
Code, before the Office of the Ombudsman against her husband, Alfredo,
with designation Chief of Hospital, Davao Regional Hospital, Apokon,
Tagum City.|||
Ombudsman issued a resolution finding probable cause to indict Alfredo
15
and mistress for Concubinage. In the same resolution, it held that the
motion of Alfredo to refer this case to the Office of the City Prosecutor,
grounded on the fact that the criminal charges imputed are not in relation
to office||| was belatedly filed.
When the matter was brought to SC, Alfredo claims that the Ombudsman
should have referred Rosa's complaint to the Department of Justice (DOJ),
since the crime of Concubinage is not committed in relation to his being a
public officer. |||
Issue: WON the complaint was properly filed before the Office of the
Ombudsman
Ruling:
YES, the Ombudsman has primary jurisdiction over offenses cognizable
within the Sandigabayan.
To reiterate for emphasis, the power to investigate or conduct preliminary
investigation on charges against any public officers or employees may be
exercised by an investigator or by any provincial or city prosecutor or their
assistants, either in their regular capacities or as deputized Ombudsman
prosecutors. The fact that all prosecutors are in effect deputized
Ombudsman prosecutors under the OMB-DOJ circular is a mere superfluity.
The DOJ Panel need not be authorized nor deputized by the Ombudsman to
conduct the preliminary investigation for complaints filed with it because
the DOJ's authority to act as the principal law agency of the government
and investigate the commission of crimes under the Revised Penal Code is
derived from the Revised Administrative Code which had been held in
the Natividad case [citation omitted] as not being contrary to the
Constitution. Thus, there is not even a need to delegate the conduct of the
preliminary investigation to an agency which has the jurisdiction to do so in
the first place. However, the Ombudsman may assert its primary
jurisdiction at any stage of the investigation.|||
[END OF LAW ON PUBLIC OFFICERS]
BY:
Bayalas, Biton, Borres, Caminade, Cañada, Chan, Duran-Ybañez, Fookson, Gallego,
Gan, Judilla, Lao, Lesigues, Lulu, Lumapas, Ortezuela, Otero, Paglinawan, Robles,
Salas, Sanchez, Tampus, Tapia, Ubod
Note: Arrangement is chronological according to class sessions. You may see
repetitions and/or scattered transcripts of the same topic throughout the material.
This is because discussions were conducted across two distinct periods: pre- and post-
mock bar. Segregation was done only on the subject level: Local Government Law
(Public Corporation) and Public International Law.
LOCAL GOVERNMENT LAW
{PRE-MOCK BAR, August 29, 2014}
First in my presentation would be the 2 kinds of corporation. Primarily, a
corporation can be classified as either private or public. This is
fundamental. You will see later on that there are other nuances that we
should need to know. So this definition I gathered from one of the eminent
authors in law of municipal corporations, Judge Dillon. By the way, there
are about 3 or 4 well known authorities in local government law. I made
use of their opinions as well in trying to effectively deliver the course to my
students. So from time to time you will see that I will be quoting from
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foreign authors. How did I come to know that these foreign authors are
indeed authorities on the matter. I surveyed Supreme Court decisions from
1901-present. And these authors are consistently quoted: Machellin, Dillon,
Poley...
By definition, a private corporation is -
Kinds of Corporation, in general:
 A private corporation is one that is formed for some private
purpose, benefit, aim or end, such as a business corporation
formed and organized under a general law on corporation. It is
created for private objects. (Dillon, supra.)
 A public corporation is one that is organized for government of
a portion of a state, such as a local government unit. It is created
for public purpose. (Dillon, supra.)
Of course a typical example is any private corporation organized under the
corporation code of the Philippines. What is problematic however is how to
tell whether a corporation is public. Sayon ra manang to determine private;
while to determine whether a corporation is public requires another level of
analysis. But by definition a public corpo is …(pls refer to slide above). And
an example of which, according to Judge Dillon, is a local government unit.
So it is created for public purpose. If you look at the definition you might
be able to answer this question …
What are the tests in determining whether a “corporation” is public or
private?
How many tests are there? There are 2 tests in determining whether a
corporation would qualify as public corporation.
One is purpose test. Which means that we need to look into the purpose
for which a corporation is organized if whether it is established for
governmental purpose/public purpose. If the answer is yes then under that
test, the corporation is public.
The other test is the relationship test. Under which the question would
be what is the relation of the corporation to the state. If the answer is that
the corporation would be established for the purpose of making the
corporation an agent of the state in the performance of its functions then it
is public. So it’s not much of the purpose but the corporation’s relationship
to the state. Meaning, it is intended to perform the function of the
government and therefore it is meant to be an agent of the state. If the
answer is yes, then it is public.
I am sure you have encountered these precepts when you had read the
case of BSP vs. COA when we were studying administrative law. But we
studied this case, in light of admin law, for the purpose of highlighting the
concept what is instrumentality of the state. And there we learned that
instrumentalities of the government include public corporation. So the
moment it is classified as public corporation, it is considered as
instrumentality of the state. In which case, it is then within the jurisdiction
of Commission on Audit. So this problem is taken from the very facts of BSP
vs. COA.
16
Problem
The Boy Scouts of the Philippines (BSP) was created by C.A. No. 111
“to promote …the ability of boys to do useful things for themselves and
others,…and to inculcate in them patriotism, civic consciousness and
responsibility, courage, self-reliance, discipline, and kindred values, and
moral values, using the method which are in common use by boy scouts.”
BSP is not anymore a GOCC. The National Executive Board of BSP no
longer consists of several Cabinet Secretaries, except the Secretary of
Education, under R.A. No. 7278. COA asserts jurisdiction over BSP
contending that it is still a government agency.
Is BSP still an “instrumentality” of the government and perforce under
COA’s jurisdiction?
Now notably the Supreme Court in BSP vs. COA declared that BSP is a
public corporation. It is a public corporation but what test was used by the
majority opinion? This means that you should take note the dissent of
Justice Carpio. The majority declared that it is a public corporation and 2
reasons were given. 1st, It was declared in the law that created BSP itself,
Commonwealth Act no. 111, if you look at the title of the charter of BSP, it
says “an act creating a public corporation to be known as Boy Scouts of the
Philippines. The other reasoning of the court was (2nd) it was created for a
public purpose, and that public purpose was to inculcate upon the youth,
virtues of citizenship and patriotism. Kana kunu is public purpose. In other
words the majority opinion applied the purpose test.
BSP vs. COA (2011)
The BSP still remains an instrumentality of the national
government. It is a public corporation (this is declared in C.A. No. 111
itself) created by law for a public purpose, attached to the DECS pursuant
to its Charter and the Administrative Code of 1987. It is not a private
corporation which is required to be owned or controlled by the
government and be economically viable to justify its existence under a
special law.
[See, however, the dissent of Justice Carpio.]
But what did Justice Carpio say in his dissent? Carpio said that yes, it is
true that it has public purpose but this fact alone does not make
automatically the BSP a public corporation (GOCC)…
Dissent of J. Carpio
Indeed, the BSP performs functions which may be classified as public
in character, in the sense that it promotes “virtues of citizenship and
patriotism and the general improvement of the moral spirit and fiber of our
youth." However, this fact alone does not automatically make the BSP a
GOCC …
 Authorities are of the view that the purpose alone of the
corporation cannot be taken as a safe guide, for the fact is
that almost all corporations are nowadays created to promote the
interest, good, or convenience of the public.
 The true criterion, therefore, to determine whether a corporation
is public or private is found in the totality of the relation of
the corporation to the State. If the corporation is created by
the State as the latter’s own agency or instrumentality to help in
carrying out its governmental functions, then that corporation is
considered public; otherwise, it is private.
There is a good reason for this, kung public purpose lang, ingon Justice
Carpio, what about schools? Dba to educate is a governmental function?
Yes because it is one of the duties of the state. Dba education or
hospitalization public purpose mana? So if we go by the analysis of the
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majority opinion according to Justice Carpio, then private schools and
private hospitals should likewise qualify as public corporation if we go by
the purpose test only. Therefore, it should not be the only test, you should
apply the relation test in that regard.
Justice Carpio mentioned a case decided in 2007 applying the relation test
-
Applying the above test, provinces, chartered cities, and
barangays can best exemplify public corporations. They are
created by the State as its own device and agency for the
accomplishment of parts of its own public works. (citing Philippine
Society for the Prevention of Cruelty to Animals v. Commission on Audit
[2007])
The true public corporation nga wala gyud debati class - local government
units; kung per se or objectively speaking atong hisgutan. Because you
know for a fact that sometimes we characterize things for a limited
purpose, and only for resolving a particular issue. But, if we are to look at
the corporation per se and classify it, not for any limited purpose but per
se, then we go by the relation test.
Let’s look at Special Kinds of Corporations. This is important because this
was asked in the bar, for one; and secondly, you should be aware also.
There are 3 kinds:
Special Kinds of Corporations:
1. Corporation De facto – the consent of the state is implied
rather than expressed, by the general consent to that kind of
corporation, even though the conditions of incorporation are not
substantially complied with.
2. Corporation by prescription – under the principles of common
law, where a body of men have been for a long time in the
exercise of corporate powers, a presumption arises of an ancient
charter granted to their predecessors, making the exercise of
such powers by them lawful and rightful, a lost grant or charter
from the crown being presumed. Teodorico C. Martin,
Commentaries and Jurisprudence on Philippine Commercial Law
(1986).
3. Corporation by estoppel
Fletcher: “While as against the state a corporation cannot be
created by the mere agreement or other act or omission of
private persons, yet as between private litigants they may, by
their agreements, admissions, or conduct, place themselves
where they would not be permitted to deny the fact of the
existence of the corporation.”
I must have shown this in one of our exams in Local Government Law -
Bar Exam (2011)
Define/explain the following:
A. Doctrine of operative facts (1%)
B. De facto municipal corporation (1%)
C. Municipal corporation by estoppel (1%)
Just transpose the concepts of Corporation Law on the kinds of corporation
into municipal corporations.
Let’s go then to the Kinds of Public Corporation -
17
Kinds of Public Corporation
1. Quasi-public corporation – a public corporation that renders
public service or supplies public wants, such as utility companies.
It combines the elements of both public and private. Though
organized for private profit, they are compelled by law or
contract to render public service. (Dillon, supra.). E.g. public
utility companies.
2. Municipal corporations - body politic and corporate
constituted by the incorporation of the inhabitants for purposes
of local government thereof. Recently referred to as “local
governments”.
It is called Quasi-public Corporation because in reality it is a private
corporation. Those organized under Corporation Code of the Philippines, so
that’s a general law, so private sya. But it may be characterized as quasi-
public if it performs some public purpose functions.
Let me show to you a problem that I did not show to you when you were
under me:
Problem
The Municipality of Badong was created in 1964 by Executive Order No.
123. In 1965, the case of Pelaez vs. Auditor General nullified E.O. 123 on
the ground that the creation of a municipal corporation is a legislative, not
executive, function. The officials of Badong argued that its creation must be
affirmed because of the “Doctrine of Operative Fact”. Rule on this
contention.
You remember in the case of Pelaez v. Auditor General, 33 Executive
Orders creating municipal corporations were declared by the Supreme
Court as unconstitutional on the ground that the President cannot create a
municipal corporation; it is a legislative function.
What is interesting here is the argument of officials of Badong saying that
the Municipality of Badong must be affirmed because of the Doctrine of
Operative Fact. What’s wrong with the argument?
The Doctrine of Operative Fact applies only to the acts of the officers of the
Municipality of Badong and not to its status. You don’t apply the Doctrine of
Operative Fact to make an unconstitutional act constitutional. It’s a wrong
application. The doctrine applies to the acts; dili i-declare nga valid ang
corporation. Of course, it will be declared invalid if the desires to have it
declared (as you know, it is an option on the part of the state). But as to
the effects, those will be recognized as if the same were acts of officials of
de jure corporations; so considered valid.
You know why that is important? Look at this question in the Bar exam -
2004 Bar Exam
Suppose that one year after Masigla was constituted as a municipality, the
law creating it is voided because of defects. Would that invalidate the acts
of the municipality and/or its municipal officers?
ANSWER: (Mun. of Malabang v. Benito)
So specific siya sa acts. What is the answer? Doctrine of Operative Fact, as
established in Municipality of Malabang vs. Benito.
“The Doctrine of Operative Fact” says the Supreme Court “recognizes the
existence of the law or executive act prior to the determination of its
unconstitutionality as an operative fact that produced consequences that
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cannot always be erased, ignored or disregarded. In short, it nullifies the
void law or executive act but sustains its effects. It provides an exception to
the general rule that a void or unconstitutional law produces no effect.
Here, you need to be careful; because had the question been, would
Masigla qualify as a de facto municipal corporation, after the law creating it
had been voided? That’s a different question.
You remember that there are two reasons/justifications for the doctrine of
de facto municipal corporation: (1) Operative Fact Doctrine, and (2)
Doctrine of Prescription – that municipal corporations, even if created
irregularly from the start may be entitled to recognition as de facto
municipal corporation after a long period of time. Remember Municipality of
Jimenez vs. Bas, 40 years usa pa na question. Unsa may gi-ingon sa
Supreme Court? At least de facto siya. Galing lang na de jure kay gi-
recognize sa Ordinance or Appendix to the 1987 Constitution kay gilista as
one of the local government units constituting a particular legislative
district.
So in the problem I gave, that’s almost the same - 1 year after, would it
qualify as de facto? What I’m trying to say is this: pwede diay class nga
ang municipal corporation may not be declared even as a de facto
municipal corporation because di siya mu-qualify, like the case of Andong.
But even if the municipal corporation may not qualify as a de facto
municipal corporation, we treat the acts differently. We apply Doctrine of
Operative Facts insofar as the acts are concerned because as observed di
naman ta orthodox view insofar as the effects of unconstitutionality are
concerned. Unsa naman atong gi apply? Modern view na. The orthodox
code was used in the past. It was based on the Civil Code (1949 which took
effect in 1950?).
To recap: A municipal corporation may not qualify as de facto municipal
corporation but that doesn’t mean that its acts may not be honored as valid
because we can apply also the Doctrine of Operative Fact.
But of course, obviously if mu qualify sya as de facto municipal corporation,
with more reason nga ang acts kay mao mana ang effects sa declaration of
a de facto municipal corporation – that the acts of the de facto municipal
corporation will be considered as acts of officials of a de jure municipal
corporation.
Municipality of Malabang vs. Benito (1969)
E.O. 386 creating the municipality in question is a nullity pursuant to the
ruling in Pelaez v. Auditor General and Municipality of San Joaquin v. Siva.
The E.O. therefore “created no office.” This is not to say, however, that
the acts done by the municipality of Balabagan in the exercise of its
corporate powers are a nullity because the E.O. is, in legal contemplation,
as inoperative as though it had never been passed. For the existence of
E.O. 386 is “an operative fact which cannot justly be ignored.” There is
then no basis for the respondents’ apprehension that the invalidation of the
executive order creating Balabagan would have the effect of [..]settling
many an act done in reliance upon the validity of the […] municipality.
As I have said, that is important or there is something we need to clarify in
that regard. Mao man guy giingon sa SC aning Malabang vs. Benito. Kay
ang EO 386 itself was declared by the SC in the Pelaez vs. Auditor General
nga it created no office; but insofar as the effects, ingon sila it is an
operative fact which cannot just be ignored.
18
Territorial and Political Subdivisions:
Regular LGU’s: Provincies, Cities, Municipalities, and Barangays
Autonomous Regions: Muslim Mindanao and Cordilleras –Art. X, Sec. 1
(Constitution)
Special LGU’s: Special Metropolitan Political Subdivisions –Art. X, Sec.
11 (Consti.)
Question: What is the extent of the power of the President over
the above political subdivisions? State your legal basis.
We go to ART. 10 of the Constitution. As for this regular political
subdivision ang answer nato would be sec.4 Art. 10:
Section 4. The President of the Philippines shall exercise general
supervision over local governments. Provinces with respect to component
cities and municipalities, and cities and municipalities with respect to
component barangays, shall ensure that the acts of their component units
are within the scope of their prescribed powers and functions.
Dili cya complete in the sense nga wala nag mention of autonomous region
ani sec. 4. So to be able to answer the real relationship between the
president and the autonomous region, we have to go further. so kana sec.
4 sa provinces, city, mun., and brgy. will be applicable but in the case of
autonomous region naa specific provision, Sec. 16.:
Section 16. The President shall exercise general supervision over
autonomous regions to ensure that laws are faithfully executed.
Because puede man gud nga pa-dramahon ra ka sa exam nya tagaan ka ug
basic distinction between province, city, municipality, and autonomous
region kai in reality naa man sila distinction.
In regard to the degree of the autonomy kai di ba naa distinction. Ang LGU
other than autonomous region is governed by the Local Gov. Code and at
the same time by their charters in so far as the provision is not inconsistent
with the LGC. Ang sa autonomous region it is goverened primarily by their
Organic Act, nya unsa man difference? Kani mga prov., city, mun., and
bryg. restricted ang power,mostly delegated, but in the case of
autonomous regions specific ang Constitution nga there are areas where
autonomous region can have original power unlike in LGU na any other
power can only be by delegation. Where can we see this? Sec. 20,
mandated areas that must be in the organic act:
Section 20: Within its territorial jurisdiction and subject to the provisions
of this Constitution and national laws, the organic act of autonomous
regions shall provide for legislative powers over:
1. Administrative organization;
2. Creation of sources of revenues;
3. Ancestral domain and natural resources;
4. Personal, family, and property relations;
5. Regional urban and rural planning development;
6. Economic, social, and tourism development;
7. Educational policies;
8. Preservation and development of the cultural heritage; and
9. Such other matters as may be authorized by law for the
promotion of the general welfare of the people of the region.
Is the following statement correct?
X City is an independent component city because it is beyond the
supervision of the Province where it is situated, while Y city is a component
city because the Province where it is situated exercises supervision over it.
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Incorrect. I gathered this the way my students answer nga naa mga
misnomer ba. What makes independent component city is not the fact that
it is beyond the supervision of the province. That is the effect that it is
beyond the supervision. It is simply a consequence of its status as an
independent component city. The same is true with a component city , that
it is within the supervision of the province, is simply a consequence of its
status as a component city. What makes it independent component city or
component city is not whether it is under the supervision of the province.
Kinds of Cities:
 Component City – not qualified to be highly urbanized;
inhabitants can vote for provincial candidates and can run for
provincial elective posts = under the supervisory power of the
province
 Independent Component City – independent in the sense
that the charter prohibits the voters from voting for provincial
elective posts = outside the supervisory power of the province
(Abella v. COMELEC)
 Highly Urbanized City – independent from province by reason
of status = outside the supervisory power of the province
First, we need to know what is a component city. Simple ang defintion sa
CODE: a component city is a city that is neither independent component
city or highly urbanized city. Mao gyud nay sakto. So una nimu tanawon if
ICC or HUC, otherwise , component city gyud na cya.
What is then an independent component city? What makes an independent
component city is a special provision found in the charter. When what is
found in the charter is this prohibiton on the part of the voters of that city
from voting provincial elective posts and as interpreted in Abello vs.
COMELEC, that also includes prohibition to run for provincial elective office.
So the 2 prohibitions are from voting and from running in the provincial
elective posts. Okay, so kung naa na nga provision, that’s what makes a
city an independent component city. Consequently, beyond the supervisory
power of the province.
Next, what is a highly urbanized city? Do we have to see in the charter if
there is the same prohibition to vote or run just like in independent? NO!
We just have to look into the income of the city to determine if whether it
is HUC. Income ra gyud! So what makes it as a HUC, and beyond the
power of supervision of the province is its STATUS. And its status is
determined by income.
Confusingly though in the code (referring to the LGC, ana si sir libug kay
ang LGC kay murag hastily done by its framers, likewise katong RA 9009 ni
Pimentel hastily done pud) …di ba sa RA 9009, if a municipality is to be
upgraded to a component city, ang income requirement kay di ba
100Million na man (previously before RA 9009, income requirement lang to
become a Compoent is 20M). Mas lisud ni karun. Di lang 100M ang income
gi kinahanglan, nangailangan pud ang RA 9009 na the “100million” should
be locally generated. Meaning ang internal revenue allotment should not be
taken into account in computing the 100Million. [Transcribers’s
explanation: if 90 million ang locally generated income nimo then na kay 20
million na IRA, supposedly ni-exceed na ang imong income sa 100M
requirement so qualified naka. However pursuant to RA 9009, ang IRA is
not to be taken into account, thus ang katong 20M should not be added to
the 90M]
What is RA 9009? It is an act amending section 451 of LGC. Specific man
pud cya. Amending sec. 451. Now if you look at the code kanang 451 it is
the “city” requirement. So ang uban na provision dili na cya necessarily apil
sa amendment sa RA 9009.(so the amendment is specific and it does not
19
apply to all provisions of the LGC but only a specific provision-sec 451, just
take a look sa law nalang to be sure). So for highly urbanized city, ang
income requirement is still 50million gihapun. HUC in the LGC is still 50
million, kay specific man ang RA 9009, an act amending section 451, LGC
So what will happen now? My humble submission would be: the moment
we create a city under RA 9009, therefore complying with the 100M income
requirement, that city should be automatically considered HUC. Why is that
important? It is important because ang idea man gud sa HUC is that is
something to be converted pa ba out of an ordinary city, either from a
component or independent city. Just like in the past. How do we establish
an HUC? Di ba by way of conversion. And Conversion would not require a
law. It is different when you “convert” a component into an independent
component, because you need a law there (a law is required for conversion
in that instance). Likewise, a municipality to be converted to a city, the
more reason that a law is required as well for its conversion.
BUT IF YOU CONVERT an ordinary city (which is either component or
independent city) into a Highly Urbanized City (HUC), WALAY LAW
REQUIREMENT FOR CONVERSION. What is required is merely an
application to the Office of the President , upon submission of the proof of
compliance, for highly urbanized city status.(I’m talking about the income
of 50M and population of at least 250K). If ma comply na, the President is
mandated to issue a conversion within a period of 30 days, no discretion
ang President since it is mandated by law. Mao na ang process sa
conversion.
Naturally ang effect would be if mag-create ka under 9009, you do not
have to go through the process of conversion. So that is something
Congress should look into. So it does not make sense to say that..you
create a city out of a municipality. Unya 100M income requirement
complied with, so city naka…so what is the status now of the municipality?
Component city or HUC? Maka argue ba ka nga that municipality cannot be
a HUC kay wa man cya ni follow sa IRR na dapat ka mag-apply ngadto sa
office of the president… FOR ME THAT IS A USELESS PROCEDURE if mu
require pa ka anang application to the office of the president. So that is one
area that the court should clarify.
Another important principle. You remember this case? I’m talking about a
special situation in creating cities…
Problem
In 1998, by virtue of RA No. 8528, the City of Santiago, Isabela was
converted from an independent component city to a component city. The
constitutionality of RA No. 8528 was assailed on the ground of lack of
provision of the same law submitting the same for ratification by the people
of Santiago City in a proper plebiscite. The issue was whether the
downgrading of Santiago City from an independent component city to a
mere component requires the approval of the people of Santiago City.
Decide.
There are 2 possibilities: whether you upgrade a city or downgrade a city.
Kanag pag-upgrade or pag-downgrade, it could be for a political reason.
(Although kanang mga politicians, pwede gud na pina-agi “for the benefit
of the constituents”. Nya mu-tuo pud ta dayun. But sa tinuod naa gyud na
political complexion. For example during the time of former Gov. Gwen
Garcia, diba naa man toi isyu na “dili man gyud mapildi si Gwen sa
province”.. aha! Based on a study, murag pildi man cya kung Cebu City
lang ang basehan sa botar. So nganu kaha sa probinsya taas ang rating ni
Gwen pero diri sa city gamay man.. Mao tong ni float ang idea ba na what
if Cebu City should be converted to a component city para lang gyud mu-
botar. So i-downgrade.. so diba dili ba na for political purposes.)
So unsa diha ang issue? The issue is on the plebiscite. So first issue is-
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WON plebiscite is required. Second issue -who should participate in such
plebiscite.
Kbaw naman mo kanang mga easy problems in the bar na kato gani mu-
carve out ug territory from the mother province. Di ba if mu carve out ka
from mother province then the entire province should participate not
merely the constituents of the new territory (political units directly
affected). And as interpreted by the SC in Tan vs. COMELEC ang phrase
“affected” would be as a result of reduction in territory, reduction in
population, and most importantly a reduction in economic aspect
(INCOME).
So kung bu-akun nimo ang Cebu Province, North ug South. So the South
being a new province, the North province will also participate. Mao na ng
nahitabu sa Tan vs. COMELEC. Kato na cyang Negros Oriental ug
Occidental.. nya nagcreate ug bag-o..kato Negros del Sur pero wala gi apil
ang Occidental Negros. So gi-nullify sa SC ang plebiscite.
In this case, this is an actual case…so by virtue of a law, the city of
Santiago, Isabela was converted from an ICC to a mere component so,
DOWNGRADING siya. So it was questioned because there was no provision
in the law requiring plebiscite.
So was plebiscite required in this case? This is an old case.
Miranda vs. Aguirre (Sept. 1999)
The Supreme Court ruled that plebiscite was required even in cases of
“conversion”.
It observed that the common denominator in Section 10, Article X of the
1987 Constitution is the material change in the political and economic rights
of the local government units directly affected as well as the people
therein. It is precisely for this reason that the Constitution requires the
approval of the people in the political units “directly affected.”
SC: Plebiscite is required. But the question is, according to the court, asa
man ang plebiscite i-hold? The SC said, dira rapud sa Santiago City, sila
man ang affected. Sila kuno ang directly affected. We will try to analyze
this case no if correct pa ba gyud na diha dapita. This SC ruled that
plebiscite is required in this kind of conversion.
Dalia rana timan-an class kung plebiscite requirement. Double TEN. Section
10, Article X 1987 constitution, arong maka pang hambog ta. Let’s try to
imagine that you’re participating in a plebiscite and then you will drop 2
tens in the ballot.
So kani diay siya, sa pag downgrade, kato rapud Santiago City.
NOW THIS IS THE UPDATE. UMALI VS COMELEC, APRIL 2014
Umali vs. COMELEC (April 2014)
While conversion to an HUC is not explicitly provided in Sec. 10,
Article X of the Constitution, xxxx the conversion of a component city
into an HUC is substantial alteration of boundaries. As the phrase
implies, “substantial alteration of boundaries” involves and necessarily
entails a change in the geographical configuration of a local government
unit or units. The phrase “boundaries” should not be limited to the mere
physical one, referring to the metes and bounds of the LGU, but also to its
political boundaries.
This is the opposite. UPGRADE. From being a CC into a HUC, so kinanglan
careful ka. Not all upgrades will you apply Umali vs. Comelec. Dapat,
squarely applicable siya; from a CC converted into HUC. So di ni therefore
20
mu apply, if the upgrade will be from ICC upgraded into HUC. Do you know
why? The SC said, in what areas gani mu required ang plebiscite? Double
Ten. In cases of CREATION, DIVISION, MERGER, and the last one would be
SUBSTANTIAL ALTERATION OF BOUNDARIES. Do you know where
upgrading of CC to HUC falls under these circumstances? Not creation
according to the SC.
Not unlike a 2004 Bar question, where 80 brgys, 30 sa west, 50 sa east.
Ang 30 left sa ilang economic development ni carve out and made
themselves a new municipality. The first question would be is plebiscite
required? The answer would be yes because this involves creation.
In this case of Umali, the reason for upgrading is SUBSTANTIAL CHANGE
OF BOUDARIES. If you upgrade a CC to HUC, plebiscite is required not
because of creation, but because of substantial change of boundaries.
So kana diay “substantial change of boundaries” dili lang na physical,
pwede sad POLITICAL boundaries. Tinood ba na? Because if you convert
CC to HUC, wa may na change sa iyang physical territory. Same ra gyapon.
Pero nay political change. Why? Beyond supervision naman siya sa
province. Dba CC siya before, so part siya sa territory sa province. Dba?
Because CC man siya. So part siya sa territory sa province. Mao bitaw
Collection sa component city sa real property taxes dunay share ang
province. Because the real properties found in the CC is also found in the
province because component man siya. The same is true with
municipalities. Pero the moment it becomes HUC, diba beyond na siya sa
supervision sa province, so politically (ideally/theoretically) kuno, na-carve
out siya from the territory of the province.
And therefore, balik ta sa plebiscite, and therefore, ang province diay
affected. So instead of in the case of Miranda vs, Aguirre - didto lng sa city
involved, downgrading; ang upgrading entire province man affected kay ma
separated na daw siya politically, to that extent directly affected gihapun
ang mother province.
So Umali vs. COMELEC is a new case to remember, this involves
conversion, upgrading but be careful, dili generic upgrading, component
city into HUC, because if it is independent component city unya i-convert
into HUC, ang iya reasoning sa court dili na mu-apply kay ang ICC beyond
naman daan supervision of the province. (Sir comments: Nindot kaayo na
siya pang-MCQ!)
Another update is the case of Cagas vs. COMELEC. You have the
provinces of Davao del Sur and a new proposed Davao was supposedly
created called Davao Occidental. About 5 or 6 municipalities, including
Digos mulahi cla sa Davao del Sur, tawgun na daw silag Davao Occidental.
What happened was there was a law. The law, as expected, scheduled the
plebiscite 120 days from the signing of P-Noy. So mu-come out iya
schedule around August of 2013, if you follow the statute creating Davao
Occidental. So based on the law fixed ang sched, kay under the LGC within
120 days. True enough, the law creating Davao Occidental fixed a date, it
fell on 2nd week of August 2013. Unya kay barangay election man to pag-
Oct 28, 2013. So niingun ang COMELEC dili mi mu-hold ug plebiscite anang
August kay duol na ang October, ato lang i-synchronize sa barangay
elections para maka-save ug resources. It was questioned; you can’t undo
the mandate of law. The law said August.
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The COMELEC can postpone the holding of a Plebiscite (and
election) to another date
The COMELEC has “exclusive charge of the enforcement and
administration of all relatives to the conduct of elections for the
purpose of ensuring free, orderly and honest elections.” The text and
intent of Section 2(1) of Article IX(C) is to give COMELEC “all the
necessary and incidental powers for it to achieve the objective of
holding free, orderly, honest, peaceful, and credible elections.” (Cagas
vs. COMELEC, GR No. 209185, October 23, 2013)
But the SC affirmed the plenary power of the COMELEC. Ngano gibutang
nako ang election nga plebiscite man unta ni sa creation sa Davao
Occidental? Because what was applied by the court was the provision in
the Constitution (Sec. 2 Par.1, Article IX-C) that the COMELEC has all the
necessary and incidental powers for it to achieve free honest orderly and
credible election, that’s one. Second, under the omnibus election code, nay
provision sa postponement of election, therefor, the power to postpone has
already been delegated to the COMELEC by Congress via Omnibus election
code, so duha ka reason:
1. Plenary power when it comes to conduct of the election.
2. Congress has already allowed the COMELEC, under the Omnibus
Election Code, to postpone the election if the grounds stated
therein, are present. (such as force majeure, when it was really
difficult or impossible to hold the election, etc.)
So it was difficult probably because of the gap between August to October.
Of course, it’s a sound policy to synchronize such activity with the regular
elections of the barangay.
The case of Navarro vs. Court of Appeals involves a particular provision
in the IRR which provides for exemption as to compliance of the land area
requirement for province.
Creation of an LGU will require generally three criteria but there are certain
LGUs where only two criteria are required; the constant there is income
requirement. In the case of a province, it needs to comply with the -
1. income requirement of 20M, which includes the IRA, AND
2. either a)population of 250,000 inhabitants (not registered voters) OR b)
land area of 2,000 square kilometres.
In the case of municipalities and component cities, there is an exception:
the land area requirement need not be complied with if the municipality
consists of one or more islands. There is no exception in the case of
province. However, the exception was given under the IRR.
The 2011 case ruled that there is no rhyme and reason why the province
has no exception when there is an exception in the case of other LGUs.
Thus, in case of a province, it may not comply with the land area
requirement if it consists of islands; it only needs to comply with the
income requirement. In the case of Province of Dinagat, its inhabitants did
not reach 250,000 and its land area did not also reach 2,000 sq.km.
21
2009 Bar
The Municipality of Bulalakaw, Leyte passed Ordinance No. 1234,
authorizing the expropriation of two parcels of land situated in the
poblacion as the site of a freedom park, and appropriating the funds
needed therefor. Upon review, the Sanggunian Panlalawigan of Leyte
disapproved the ordinance because the municipality has an existing
freedom park which, though smaller in size, is still suitable for the purpose,
and to pursue expropriation would be needless expenditure of the people’s
money. Is the disapproval of the ordinance correct? Explain your answer.
(2%)
I’m referring to the case of Moday vs. CA. The topic here is the extent of
the review power of the Mother Sanggunian. As you know, component
cities and municipalities are subject to the supervision of the province. One
way of realizing this relationship of supervision is by asking component
units to submit their ordinances and resolutions approving a local
development program. As a rule, all ordinances are reviewable while
resolutions are not. However, there is one kind of resolution which can be
reviewed: one approving a local development program. The idea here is
coordination. But it is important for you to know the extent of the reviewing
power of another Sanggunian.
Mother Sanggunian’s REVIEW POWER:
 Grounds:
If by Sangguniang Panlalawigan:
1. ULTRA VIRES (Sec. 56(c), LGC) [2009 Bar]
If by Sangguniang Panlungsod/Bayan:
1. CONSISTENT WITH LAW
2. CONSISTENT WITH CITY/MUN. ORDINANCES (Sec. 57,
LGC)
But, I don’t know if the difference between these two provisions is
deliberate. If you come to think of it, the grounds under Sec. 57 would still
be considered ultra vires.
Application to the problem: If you apply this to the problem, the
authority of the Sangguniang Panlalawigan is not without limitation. It is
limited is whether it is ultra vires or not. In the problem, there is a question
as to the power to expropriate. The power to expropriate is indeed a power
that any LGU may exercise so therefore it is intra vires, not ultra vires. So,
considerations outside of that are beyond the power of the reviewing
Sanggunian. In this case, the reviewing Sanggunian does not say that the
Municipality of Bulalakaw does not have the power to expropriate because
Sec. 19 of the LGC grants such power to all LGUs. On the contrary, the
Sangguniang Panlalawigan’s reason is rather a political question: because
the municipality has an existing freedom park which, though smaller in size,
is still suitable for the purpose, and to pursue expropriation would be
needless expenditure of the people’s money. It is therefore not an ultra
vires ground. It is about wisdom, in other words, thus not a valid ground.
Compare with VETO POWER OF Local Chief Executive
 Grounds:
1. ULTRA VIRES
2. PREJUDICIAL TO PUBLIC WELFARE
(Sec. 55, LGC)
For the veto power, there is still the ground of being ultra vires. But there is
also the ground that it is prejudicial to public welfare, this is a very broad
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ground to veto an ordinance.
LGU’s and National Agencies (with Project Implementation
Functions)
 “Prior Consultation Before Implementation”:
No project or program shall be implemented by
government authorities unless the consultations in Sections 2(c) and 26
of the LGC and prior approval of the Sanggunian concerned obtained,
provided that occupants affected shall be given relocation site (Sec. 27,
LGC).
There is a rule that requires prior consultation and prior approval of the
Sanggunian for projects that have to be implemented by the National
Government in the locality. There are three requirements here:
1. Consultation
2. Prior approval
3. Relocation site if there are settlers that will be affected.
Case in point is Lina vs Pano, involving lotto.
Lina, Jr. vs. Pano (2001)
Section 27, in relation to Section 26, LGC applies only to programs
by the “national government” and not applicable to programs by
“government owned or controlled corporations (GOCCs)”, like PCSO.
The projects/programs mentioned in Sec. 27 should be interpreted to
mean projects/programs whose effects are among those enumerated in
Secs. 26 and 27, to wit, those that: (1) may cause pollution; (2) may
bring about climatic change; (3) may cause the depletion of non-
renewable resources; (4) may result in loss of crop land, range-
land, or forest cover; (5) may eradicate certain animal or plant
species from the face of the planet; and (6) other projects or
programs that may call for the eviction of a particular group of
people residing in the locality where these will be implemented.
(see also Province of Laguna case (2005) and Bangus Fry Fisherfolk vs.
Lanzanas (2xxx))
The argument was that there was no prior consultation nor prior approval
of the Sanggunian before lotto may be allowed in their locality. But the SC
said that Sec. 27 is not applicable. Why? First, Sec. 27 applies only to
programs by the National Government. In this case, the lotto was a
program of PAGCOR, which is not the National government but rather a
GOCC. Second, Sec. 27 would only apply to these areas or kinds of projects
(see enumeration above).
So, basically these are the steps in determining whether a national
government’s project in the locality is valid.
1. Three requirements: Consultation, Prior approval by the
Sanggunian, and relocation site if there are settlers who will be
affected.
2. 2 conditions are met:
a. National government program to be implemented in the
locality
- Thus if GOCC, not applicable (Lina vs Pano)
b. The program belongs to any of these:
(1) may cause pollution;
(2) may bring about climatic change;
(3) may cause the depletion of non-renewable resources;
(4) may result in loss of crop land, range-land, or forest cover;
(5) may eradicate certain animal or plant species from the face
22
 of the planet; and
(6) other projects or programs that may call for the eviction of a
particular group of people residing in the locality where
these will be implemented.
If you are asked a problem like in Lina, how many levels will your answer
be? At least 2. Number one: national government project. Ang PAGCOR not
part of national government kay GOCC siya. Number two: Lotto is not one
of those mentioned in the slides in sec 26 and 27. This doctrine is already
affirmed thrice. Well-settled na.
LOCAL POLICE POWER
Local Police Power
 THE “GENERAL WELFARE CLAUSE”:
Sec. 16. General Welfare. Every local government unit shall
exercise the powers expressly granted, those necessarily implied
therefrom, as well as powers necessary, appropriate, or incidental
for its efficient and effective governance, and those which are
essential to the promotion of the general welfare.
Lawful means, lawful subject ra jud nah ang local police power.
Requisites for Validity of Local Police Power
Tatel vs. Mun. of Virac:
1. must not contravene the Constitution AND statute
2. not unfair or oppressive (also a constitutional requirement)
3. not partial or discriminatory (also a constitutional
requirement)
4. not prohibit, but only regulate lawful trade (see: De la Cruz
vs. Paras where an ordinance prohibited the operation of night
clubs)
5. consistent with public policy (because of the requirements of
valid delegation of legislative power) see: (Lim vs. Pacquing)
where it was found out that the “national policy”was for National
Government, not for LGU’s, to grant “franchises” for operation of
jai-alai. LGU’s can only regulate but not grant operation of jai-
alai.
6. not unreasonable (also a constitutional reqt.) (See: Balacuit
case where an ordinance penalized movie houses that charged
full payment for admission of children between 7-12)
xxx also applies “lawful subject” and “lawful means”
requirements!
Most important requisite is number 4. Asked many times in the bar. You
have to identify first if there is a law declaring a trade or business illegal. If
there is none, the most that the govt can do is regulate it and not prohibit
it. But if the trade had been declared illegal by law, the lgu’s should also
prohibit it because they are mandated to comply with mandatory statutes.
The other requisites are included in the lawful subject and lawful means
requirements. Lawful subject: the activity is a valid subject of regulation
because it affects the public and not just a private group. Lawful means:
the means employed is reasonably necessary for the accomplishment of the
purpose of the law AND not unduly oppressive upon individuals.
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Problem
The City of Marikina passed an ordinance which regulates the
construction of fence as follows:
“The standard height of fences or walls allowed under this ordinance are as
follows:
(1) Fences in the front yard – shall be no more than one (1) meter in
height. Fences in excess of one (1) meter shall be of an fence
type, at least eighty percent (80%) see-thru.”
The objective of the ordinance is “to discourage, suppress or
prevent the concealment of prohibited or unlawful xxxx.” Is the ordinance
valid?
Problem above is the Fernando case. Will the means employed accomplish
the objective of the law? Yes it will. But is that the least intrusive means?
Overbreadth doctrine in the White Light Corporation case.
So mao na. Unsa man nang lawful means? It will reasonably accomplish the
purpose of the law. Ang twin requirement niya kay it should not unduly
burden, or it should not be unduly oppressive upon individuals.
Grabi naman sad. Hain naman atong privacy ani, yatig magduwa tag
pingpong sa atong lawn nya mag short lang tag busloton? 1 meter gud,
makita ta anang 1 meter oi. Lakaw lakaw ka didto nyag nay nagpingpong,
tanaw nato ngara busloton bya na atong short usahay sa balay. Makitan
nyang unsay color sa atong jockey. Mayra ug nothing, kay obvious unsay
color. Pero kung naa, aw mahibawan na nuon nga red! Hain naman nang
privacy nato ana laliman kang 1 meter nga concrete naa 100% solid unya
kung mulapas na sa 1 meter, 80% see thru pa gyud! Magbutang kag
lungag lungag, unsaon kaha na pagkwinta sa building official ani no? Matik
matikon siguro niya kun pila kabuok lungag, in relation to, diba naa man
nay design ang mga fences? Buang jud ning styla.
Declared invalid by the Supreme Court. This is the case, Fernando vs. St.
Scholastica College. In this case, niintroduce nasad ug concepts sa
constitutional law, kay of course this is a constitutional law precept. Two
tests applied, Rational Relationship Test and Strict Scrutiny.
Two (2) Tests are usually applied:
1. Rational Relationship Test
2. Strict Scrutiny Test
Using the rational basis examination, law or ordinances are upheld if they
rationally further a legitimate governmental interest. Governmental interest
is extensively examined and the availability of less restrictive measures is
considered.
Applying strict scrutiny, the focus is on the presence of compelling, rather
than substantial, governmental interest and on the absence of less
restrictive means for achieving that interest. [Fernando vs. St. Scholastica’s
College, G.R. No. 161107, March 12, 2013]
 Rational Rel Test – only governmental interest, meaning valid
and legitimate purpose, without it being absolutely required to be
done or compelling.
 Strict Scrutiny Test – compelling government interest.
(maintenance of peace and order, preventing crime). Plus the
effect is mawa ang presumption of constitutionality, so burden to
prove compelling gov’t interest is on the state.
Pero ato ato lang, mejo sayop gamay ang Supreme Court kay di man na all
the time nga mag apply kag strict scrutiny. You apply only the strict
scrutiny test or the doctrine of strict scrutiny when they relate to
23
fundamental freedom. Pero not fundamental gani, you don’t apply the strict
scrutiny. Because the constitutional law precepts, borrowed man na from
the United States. In the U.S., ila man nang gi dichotomize when to apply
rational test and when to apply strict scrutiny test, it depends on the
freedom involved. Kung fundamental freedom, speech, religion, press,
privacy, and other related high valued freedom, doctrine of strict
scrutiny.
Which means two things. Number 1, the government is mandated to
establish a compelling state interest, okay, to justify the regulation of the
freedom. Compelling state interest ang girequire.
Second, presumption of constitutionality will not apply. Meaning, the
moment there is an allegation of a suppression of a high valued
freedom, you apply the doctrine of strict scrutiny which means instead of
the one alleging the unconstitutionality, proving its unconstitutionality, it
becomes the duty of the state or government to prove that there is a
compelling state interest to justify the regulation. So the presumption of
constitutionality will not apply, if that is the situation.
But for non-fundamental non-high valued freedom, you apply the rational
relationship test. Ang requirement lang is not compelling state interest, but
a valid or legitimate governmental purpose. Unya ang presumption of
constitutionality continues to apply. Dapat giclarify na sa Supreme Court. In
any case, mao kuno na ato gamiton when we analyse cases.
Valid ang pag apply sa strict scrutiny test because privacy man pud gud na
sa mga establishments especially mga residence and houses. So privacy
sya, high valued freedom sya.
Unsa may mga non-high valued freedom for example? Your right to ride a
motorcycle with or without helmet, because right to life, dili na sya high
value. Ug gusto ka mamatay, na hala. Pero right to life sa tanan, high
value. Pero kung imong own right to life, di na na sya high value.
So in 2010 bar, pwede na nimo answer answeran:
2010 Bar
The Sangguniang Panglungsod of Pasay City passed an ordinance
requiring all disco pub owners to have all their hospitality girls tested for
the AIDS virus. Both disco pub owners and the hospitality girls assailed the
validity of the ordinance for being violative of their constitutional rights to
privacy and to freely choose a calling or business. Is the ordinance valid?
Explain. (5%)
So what do you think is the objective of the ordinance? Public health?
General welfare? The objective is lawful, the governmental purpose is
lawful. Unsa man ni sila? Hospitality girls, working in disco pub. Is that a
lawful subject of regulation? Yes. Because ni cater man sila sa public. Ilang
services. Way problemang lawful subject.
Ari kang lawful means. Reasonably necessary to accomplish the purpose of
the law? It may be necessary. But is it reasonable? Is there a crime if you
are tested positive of AIDS? AIDS doesn’t matter. So you can argue along
that line. It’s I think for me noh unduly oppressive upon individuals.
Depende kun napa bay mga hidden facts diha. So you can argue along that
line class.
This one is another police power question:
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2010 Bar
ABC operates an industrial waste processing plant within Laoag City.
Occasionally, whenever fluid substances are released through a nearby
creek, obnoxious odor is emitted causing dizziness among residents in
Barangay La Paz. On complaint of the Punong Barangay, the City Mayor
wrote ABC demanding that it abate the nuisance. This was ignored. An
invitation to attend a hearing called by the Sangguniang Panlungsod was
also declined by the President of ABC. The city government thereupon
issued a cease and desist order to stop the operations of the plant,
prompting ABC to file a petition for injunction before the Regional Trial
Court, arguing that the city government did not have any power to abate
the alleged nuisance. Decide with reasons.
Kahinumdum pa mo class ako a ning gi ask sa inyo? Or maybe e discuss ko
na ining abot nato sa powers of the Sanggunian. Because here, this is the
case of AC Enterprises. Familiar or dili? A Sanggunian cannot declare an
act nuisance. It is a judicial function. The sanggunian cannot consider by
mere resolution an act nuisance. Kana if you apply Section 447 of the LGC.
AC ENTERPRISES, INC. VS. FRABELLE PROPERTIES CORPORATION
(NOV. 2, 2006)
Under Section 447(a)(3)(i) of RA No. 7160, the Sangguniang Panlungsod is
empowered to enact ordinances declaring, preventing, or abating noise and
other forms of nuisance. It bears stressing, however, that the Sangguinan
cannot declare a particular thing as a nuisance per se and order its
condemnation. It does not have the power to find, as a fact, that a
particular thing is a nuisance when such thing is not a nuisance per se; nor
can it authorize the extrajudicial condemnation and destruction of that as a
nuisance which it its nature, situation or use is not such.
Those things must be determined and resolved in the ordinary
courts of law. If a thing be in fact, a nuisance due to the manner of its
operation, that question cannot be determined by a mere resolution of the
Sangguniang Bayan.
Note: Rule III, Section IV of PAB Resolution 1-C, Series of 1997 as
amended, which categorically states that “Except where such would
constitute a pollution case, local government units shall have the
power to abate nuisance within their respective areas…”
There is this power to enact ordinances declaring, preventing, or abating
noise and other forms of nuisance. But it cannot declare a specific thing as
nuisance per se. (2 kinds, per se or per accidents). Kani siya kai foul odor,
fluid substance.
Q: Industrial waste, per se or per accidens?
A: Per accidens kai di mana siya nuisance kung imong ma dispose properly.
So if imong I dispose improperly, it becomes a nuisance so per accidens.
Sa nuisance per se, dili pwede ang sanggunian. That’s the ruling of the
court.
So kung nuisance per se siya, you have a specific provision in the PAB
(Philippine adjudication board) resolution 1-C series of 1997. That in except
in pollution cases, local government units shall have the power to abate a
nuisance within their respective area. Pero kung pollution, PAB. Kai dili
mana siya nuisance per se, per accidens.
Q: Unsa manang mga nuisance per se?
A: dogs who have rabies. So pwede na i-abate even without a specific court
order. And the local government unit can do that because that is per se.
pero kung activity that is not considered by its very nature as nuisance, so
24
per accidens siya, only the court can abate.
Kung pollution, naa tay pollution adjudication board.
Problem
Talisay City Vendors Association (TCVA) filed a case of mandamus
compelling the City Government of Talisay to close a road near the Talisay
City Public Market from vehicular traffic contending that the road is too
small for vehicles, especially four-wheeled vehicles, such that vehicular
traffic prevents small vendors from selling in the sidewalk. If you are the
judge, will you issue a writ of mandamus?
Q: opening, closing of road, mandatory or discretionary?
A: Favis case, diba? It is discretionary. So mandamus will not lie if the
function is not ministerial. So if it is discretionary and therefore not
ministerial, mandamus will not lie.
IMPORTANT: Exercise of Police Power, discretionary!
A mayor cannot be compelled by mandamus to issue a business
permit since the exercise of the same is a delegated police power hence,
discretionary in nature. This was the pronouncement of this Court in Roble
Arrastre, Inc. v. Hon. Villafor (2006) where a determination was made on
the nature of the power of a mayor to grant business permits under the
Local Government Code. (So granting permits is POLIC POWER)
Q: what makes opening and closing a road discretionary, not ministerial
and therefore not subject to mandamus?
A: (dapat ang reason i-provide sa imong answer) if you close or open a
road, that is an exercise of police power. And the exercise of police power
is discretionary. So a mayor in this case of Roble Arrastre v. Villaflor, a
mayor cannot be compelled by mandamus to issue a business permit.
Because a business permit diay dili na taxation, but it is regulation.
Although naay fees, it is primarily regulation. And because it (business
permit) is regulatory in character, it is police power. Take note of that.
In the example, closure so na combine ang opening and closing road. So
important ato kai discretionary siya kai police power siya. So business
permit, police power also, then it is discretionary as well.
One final point for local police power is this -
Is local police power subject to territorial limitations?
Discussion raba nato, why do we need to require territory under the code
if we create a local government unit? It should be described with its metes
and bounds. So generally, may technical description siya. The idea that
ordinances, power of LGUs are generally territorial.
A: local police power ordinances take effect only within its territory. But
there are exceptions.
Indeed the corporation boundaries, I took this from 3 U.S. cases supporting
the idea that corporation boundaries mark the limit for the exercise of
police power of the municipality. But in many cases, and in the areas of
preservation and public health, the municipality is granted police power
beyond its boundaries.
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Territorial Limitations
The corporation boundaries usually mark the limit for the exercise of
the police power of the municipality. But in many instances, for the
preservation of the public health especially, the municipality is
granted police power beyond its boundaries. Thus, it has been held
that the municipality may exercise police power in the protection of the
territory …to insure cleanliness, and prevent any business and conduct
likely to corrupt the fountain of water supply for the city. The same
principle was applied in a case allowing a municipal corporation to establish
a quarantine beyond municipal boundaries and thus protect the citizens
from epidemic of any contagious or infections disease. (Citations omitted)
In another case, epidemic, so there is an ordinance that can extend outside
the territorial boundaries of the City – important rule.
LOCAL EMINENT DOMAIN POWER
There are 3 aspects which are justiciable -
What may be reviewed by the Courts:
Judicial review of the exercise of eminent domain is limited to the following
areas of concern:
(a) the adequacy of the compensation,
(b) the necessity of the taking, and
(c) the public use character of the purpose of the taking.
[Dela Paz Masikip case, citing Bernas]
So the issue of genuine necessity is justiciable. Why is that so?
We distinguish between expropriation by the National Government and
those by the LGUs.
IMPORTANT: Issue is a political question if the expropriation was done by
the National Government where the law for example, Congress, has judged
the purpose as public and there is therefore need to initiate expropriation.
Courts cannot override the wisdom if what is involved is necessity if
Congress exercises expropriation through their original jurisdiction.
If the expropriation is done by the LGU, delegate, exercising its power as
such, the Court will always have the power to inquire if the delegate has
exercised its power within the delegated authority. Courts can inquire into
the genuine necessity. It is NOT a political question.
2011 Bar
The city government filed a complaint for expropriation of 10 lots to
build a recreational complex for the members of the homeowners’
association of Sitio Sto. Tomas, the most populated residential compound in
the city. The lot owners challenged the purpose of the expropriation. Does
the expropriation have a valid purpose?
25
“Genuine Necessity”, required! complied with.

 De la Paz Masikip vs. City of Pasig (2006):
Where the taking…is done for the benefit of a small community
which seeks to have its own sports and recreational facility,
notwithstanding that there is such a recreational facility only a short
distance away, such taking cannot be considered to be for public use. The
Court defines what constitutes a genuine necessity for public use…
In dela Paz Masikip, there is a sports facility near a private subdivision, the
residents of the Subdivision wanted their LGU to expropriate the sports
facility. The Court struck down the LGU’s power to do that since they said
that there was no genuine necessity. The Court explained what was
genuine necessity for public use for Local Government; but for National
Government, Congress decides what is genuine necessity.
Local Eminent Domain
Specific Requirements: (Sec. 19, LGC and Jesus is Lord Christian School vs.
City of Pasig case)
1. An ordinance is enacted by the local legislative council
authorizing the local chief executive, in behalf of the local
government unit, to exercise the power of eminent domain or
pursue expropriation proceedings over a particular private
property.
2. For public use, purpose, or welfare, or for the benefit of
the poor and the landless. (cf. Sec. 33 of xxx IRR)
3. There is payment of just compensation, as required under
Section 9, Article III of the Constitution, and other pertinent laws.
4. A valid and definite offer has been previously made to the
owner of the property sought to be expropriated, but said offer
was not accepted.
Under Sec. 19, you have specific requirements: ordinance, public use, and
then obviously you have just compensation. I would just like to make
mention of #4. As you have already learned, this is peculiar to Local
Government Units expropriating. This is not found in the requirements for
the exercise of Eminent Domain by the National Government.
4. A valid and definite offer has been previously made to the
owner of the property sought to be expropriated, but said offer
was not accepted.
So, 3 components here: (1) There must be a prior valid and definite
offer.
In fact, the SC was very exacting that the requirements of valid and definite
offer as found in our Obligations and Contracts should be complied with.
So it should be specific as to price, as to area, etc. It’s not a valid and
definite offer if the price is not even mentioned in terms of payment, as
well as the area.
It is clear in the implementing rules -
Meaning of “Valid and Definite Offer”
ARTICLE 35. Offer to Buy and Contract of Sale - (a) The offer to buy
private property for public use or purpose shall be in writing. It shall
specify the property sought to be acquired, the reasons for its acquisition,
and the price offered.
(b) If the owner accepts the offer in its entirety, a contract of sale shall
be executed and payment forthwith made.
(c) If the owner or owners are willing to sell their property but at a price
higher than that offered to them, the local chief executive shall call
them to a conference for the purpose of reaching an agreement on the
selling price. …When an agreement is reached by the parties, a contract of
sale shall be drawn and executed.

It shall not only be in writing, but it shall also specify the property and the
 Particular private property – so di pwede blanket authority
 Ordinance, not resolution because it is only ordinance that has the reason for its acquisition…the reason shall become relevant later on if the
force and effect of law. Resolution will not suffice (Mun of Paranaque reason is either not accomplished, abandoned, or changed…and then the
vs. VM Realty) price offered. So that is how the Implementing Rules narrated the
 requirements for a valid and definite offer.

What constitutes public use purpose?
Examples of Public use: socialized housing, construction or extension of
public roads or streets, construction of public buildings, establishment of
parks, playgrounds, plaza, construction of artisan wells, establishment of
cemeteries.
(2) The offer can be given to the registered owner. It doesn’t have to
be the actual owner, because it is possible that the registered owner is
really not the owner. But you cannot require the LGU to go beyond what
appears in the title. So, whoever is registered then the offer made to him,
even if later on a court decision will say another person actually owns it,
this (court decision) doesn’t matter. Whoever is the registered owner as
appearing in the title, the offer must be made to him/her.

What is common among these? Proprietary functions.

(3) And of course there is proof that the offer is rejected.

Do not get confused with the public purpose requirement of

And then there are also these requirements on more specifically in cases of
expropriation and the Governmental and Proprietary functions of
urban housing, low-cost housing, we have 2 additional requirements:
the LGUs. Because even if the maintenance of a public market, etc. are
proprietary functions, these are still for public purpose when talking of
expropriation.

{August 30, 2014}

There are specific requirements for the exercise of Local Eminent Domain
(see previous slide). But as you have already learned, the general
requirements for the exercise of Local Eminent Domain also have to be

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26
Local Eminent Domain, cont’d …
Add: Filstream International, Inc. vs. CA and City of Manila, G.R.
125218, January 23, 1998 (in re: expropriation for urban
development and housing)
5. Priorities in the acquisition of land shall be complied with as
mandated by RA 7279 (Urban Development and Housing Act of
1992) (meaning: private lands should be last in the
selection of land!) (Sec. 9 of RA 7279)
6. Expropriation shall be resorted to only when other modes of
acquisition have been exhausted (Sec. 10, RA 7279)
Making private lands as the last option: The complaint should also specify
that there are no other lands that can be acquired for the housing project.
Kung naa pa, then that will be fatal to the cause of action of the LGU.
And then also, the other requirement is that expropriation shall be resorted
to only when other modes of acquisition have been exhausted. If you look
at Sec. 10 of RA 7279, there are other ways of acquiring the property.
The rule that if a property expropriated is agricultural, once it is
expropriated, it will be converted into other use. The problem with this is
the law on conversion might be relevant. And so is it required that the LGU
concerned should first get the approval of the DAR before expropriation will
be considered a valid act on the part of the LGU?
Province of Camarines Sur vs. CA:
The LGC does not require that LGU’s must first secure the approval of the
Department of Agrarian Reform (DAR) for conversion of lands from
agricultural to non-agricultural before they can institute expropriation
proceedings. Neither does the CARL provide that the power of the LGU to
expropriate agricultural lands is subject to the control of the DAR. Besides,
determination of public use is “legislative”, not “executive” (e.g. thru the
DAR).
The case of Province of Camarines Sur vs. CA says that there is no law that
requires a prior approval to be attained from DAR before this can be done.
(Once expropriated, agricultural land becomes either residential, or
industrial, commercial.) [BAR]
JUST COMPENSATION
Now on the matter of determining just compensation, when do you reckon
the value of the property? In a situation where the taking precedes the
filing of the complaint, or the filing of the complaint precedes the taking.
If we talk about expropriation by the National Government, it will be
governed by the Rules of Court. So if it is the Rules of Court, it would
appear that the FMV of the property shall be based on the FMV of property
at the time of the taking or at the time of the filing of complaint, whichever
came first. (Because the earlier value is cheaper.)
**** But, if it is an expropriation by a Local Government Unit, the
Code is specific: it is at the time of the taking. ****
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City of Cebu vs. Dedamo (2002)
 While Sec. 4 of Rule 67 of the Rules of Court provides that just
compensation shall be determined at the time of the filing of the
complaint for expropriation (or, time of taking whichever came
first), such rule cannot prevail over RA 7160, which is a
substantive law.
 Sec. 4, Rule 67 (time of filing of complaint or taking, whichever
came first) vs. LGC: at the time of “taking”.
What happens if there is no payment of just compensation, if the
expropriator fails to pay? What is the remedy available to the landowner?
Republic vs. Lim (2005)
The landowner is entitled to recover possession of the property
expropriated if the government fails to fully pay just
compensation to the owner within a period of five (5) years from
the finality of the judgment in an expropriation proceeding.
 Of course at the option of the landowner
 Basis sa 5 years: ROC on execution of judgment, which is 5 years to
be executed by motion only, vs a new action if mulapas.
After 5 years from finality of judgment if there is no payment, the SC said
that the landowner will be entitled to repossess the property. In fact this is
a landmark case.
The other possible situation is that what if after expropriation,
a) the expropriator abandons the original purpose
b) expropriator will not pursue that public purpose but it will be
devoted to another public purpose
Is there a remedy available to the landowner? This is important because
before, there was a 1921 case of Fery v. Municipality of Cabanatuan where
the SC through an American judge ruled that the moment the expropriator
obtains the expropriated property in fee simple, meaning without condition,
then the expropriator becomes an absolute owner of the property. This
means that the expropriator can use the property either for the public
purpose for which it was originally intended or not even use it all, meaning
abandon the original purpose.
SC however modified that ruling in at least 2 cases. One is the case of
Anunciacion Vda. De Ouano v. Republic.
Anunciacion Vda. De Ouano vs. Republic (Feb. 9, 2011)
If the genuine public necessity of expropriation of private land ceases or
disappears, then there is no more cogent point for the government’s
retention of the expropriated land. The same legal situation should hold if
the government devotes the property to another public use very much
different from the original or deviates from the declared purpose to benefit
another private person.
27
Anunciacion Vda. De Ouano vs. Republic (Feb. 9, 2011), cont’d
The taking of a private land in expropriation proceedings is always
conditioned on its continued devotion to its public purpose. As a
necessary corollary, once the purpose is terminated or peremptorily
abandoned, then the former owner, if he so desires, may seek
reversion (return), subject of course to the return, at the very least, of
the just compensation received. The notion that the government, via
expropriation proceedings, acquires unrestricted ownership for a fee simple
title to the covered land, is no longer tenable.
Of course, the just compensation will be returned. So that was an option in
2011. Earlier in 2010 the SC mentioned of Fery v. Municipality of
Cabanatuan that there was a need to revisit that Fery case. SC said that at
that time, two reasons were given:
1. Apparently, the SC justices who resolved it were Americans. The
case was decided under the auspices of American jurisprudence.
1921
2. Since then, 1935, 1973 and 1987 Constitution were passed and
have been consistent that any taking of private property must be
for public use and there must be just compensation.
So that public purpose requirement is a condition. Unlike in the case of
Fery that there used to be a distinction as to what was the decision of
the court in the expropriation proceeding: whether was it conditioned
or not? If conditioned then it was not received in fee simple but if it
was a silent decision on the expropriation then the property was
absolutely acquired by the expropriator, hence fee simple.
But now in 2010 and 2011, that idea of acquisition in fee simple won’t
apply today because any expropriation is always burdened with public
purpose requirement and that is the condition.
MCIAA vs. Lozada, Sr. (2010)
Reversing “Fery vs. Municipality of Cabanatuan” (1921):
“The expropriator should commit to use the property pursuant to
the purpose stated in the petition for expropriation filed, failing
which, it should file another petition for the new purpose. If not, it
is then incumbent upon the expropriator to return the said
property to its private owner, if the latter desires to reacquire the
same.”
In Vda. De Anunsacion case, abandoned. In this one there is a need for a
new petition for the new public purpose, even if it is still public. If not then
it is incumbent upon the expropriator to return the said property to the
private owner, if he so desires. So, 2 important cases, 2010 and 2011. Very
good subject of bar exam question this year.
Even before the 2010 and 2011 cases, this is the question in 2009 -
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2009 Bar
Filipinas Computer Corporation (FCC), a local manufacturer of
computers and computer parts, owns a sprawling part in a 5,000-square
meter lot in Pasig City. To remedy the city’s acute housing shortage,
compounded by a burgeoning population, the Sangguniang Panglungsod
authorized the City Mayor to negotiate for the purchase of the lot. The
Sanggunian intends to subdivide the property into small residential lots to
be distributed at cost to qualified city residents. But FCC refused to sell the
lot. Hard pressed to find a suitable property to house its homeless
residents, the City filed a complaint for eminent domain against FCC.
(a) If FCC hires you as lawyer, what defense or defenses would you
set up in order to resist the expropriation of the property?
Explain. (5%)
(b) If the Court grants the City’s prayer for expropriation, but the
City delays payment of the amount determined by the court as
just compensation, can FCC recover the property from Pasig City?
Explain. (2%)
(c) Suppose the expropriation succeeds, but the City decides to
abandon its plan to subdivide the property for residential
purposes having found a much bigger lot, can FCC legally
demand that it be allowed to repurchase the property from the
City of Pasig? Why or why not? (2%)
Answers:
a) Go back to the elements. Was there a prior valid and definite
offer? Was it offered to the registered owner? Was it rejected?
Was the requirement on public purpose complied with?
b) Republic v. Lim, 5 years
c) Vda. De Anunsacion case or MCIAA v. Lozada.
2011 Bar
When the State requires private cemeteries to reserve 10% of their
lots for burial of the poor, it exercises its:
(A) Eminent domain power.
(B) Zoning power.
(C) Police power.
(D) Taxing power.
In Case of Immediate Possession
Before a local gov’t unit may enter into the possession of the property
sought to be expropriated, it must (1) file a complaint for expropriation
sufficient in form and substance in the proper court and (2) deposit with
the said court at least 15% of the proerty’s FMV based on its current
tax dec. The law does not make the determination of a public purpose to
possess; it’s not a condition precedent.
Closure and Opening of Roads: (Section 21 LGC)
Kinds:
1. Temporary – Ordinance (majority vote of Sangguniang) for “non-
urgent”closure (local road). Written Order of Chief Exec – for
urgent”closure (local and national)
2. Permanent – Ordinance (2/3 vote of ALL the Sangguniang Members)
+ provide for adequate substitute for the facility + provisions for the
maintenance of public safety + if freedom park, provision for
relocation/new site. (only applies to local roads)
28

Add:
(a) due process;
(b) circumstances show that the property is no longer intended for public
use
CORPORATE POWERS
2009 Bar
The Municipality of Pinatukdao is sued for damages arising from
injuries sustained by a pedestrian who was hit by a glass pane that fell
from a dilapidated window frame of the municipal hall. The municipality
files a motion to dismiss the complaint, invoking state immunity from suit.
Resolve the motion with reasons. (3%)
A: When it comes to immunity from suit principle, one way of granting or
giving consent to be sued is express consent and there are two statutes or
laws that expressly grant that consent to be sued. One is the Local
Government Code of 1991 itself, a general law, under section 21, the right
to sue and be sued. It also found in every charter of the local government
units. It is no longer an issue whether a municipality can be sued.
This is related to your property law - properties of local government units
may be held in governmental or proprietary capacity.
Corporate Powers, cont’d…
“to acquire and convey real and personal property”
LGU’s properties may be held in:
(1) Governmental capacity (property for public use), or
(2) Proprietary capacity (patrimonial property)
[Rabuco vs. Villegas]; Art. 423 of NCC
Q: But how to tell if it is governmental or proprietary.
A: There are two norms which you can actually use, one is through the Civil
Code and the other is the general norm on the law of municipal
corporations. It is up to the SC which of the norms to apply but most likely
it would be the more specific provision under the civil code, Article 424.
Roads, bridges, ports, those are properties declared as belonging to public
dominion.
Two (2) norms that may be used:
The capacity in which property is held is, however, dependent on
the use to which it is intended and devoted. There are two norms that may
be used in classifying properties as public or private: 1)that of the Civil
Code, and 2) that obtaining under the Law of Municipal Corporations.
(Province of Zamboanga del Norte vs. City of Zamboanga, G.R. No. L-
24440, March 28, 1968.)
The Civil Code classification is embodied in Arts. 423 and 424. Under
the norms obtaining in the law on municipal corporations, to be considered
public, it is enough that the property be held and devoted for governmental
purposes like public administration, public education, public health, etc…
The third test, is just a general norm under the law on Municipal
Corporation, we go by the purpose test.
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LGU’s properties, cont’d…
How do you know whether the property is “public” or
“patrimonial”?
Some Tests: A. Art. 424, NCC (road, etc.)
B. How acquired? (If private fund was used, patrimonial;
if public fund, governmental)
C. Purpose for which the property is acquired or held.
Note: “Title” does not matter, because even if in the name of LGU, if in
reality it came from the national government for public purpose, then it is
held “in trust” for the State.
Problem
Filinvest, a realty firm, visited the Office of the Mayor of Mandaue City.
Filinvest is interested in establishing a commercial and industrial zone in
Mandaue City where it can build malls, hotels, sports facilities, and other
commercial establishments. The site, about 200 hectares, consists,
however, of submerged and foreshore lands. The Mayor also thought of
establishing in the site a new City Hall and a “One-Stop Government
Center” where all local government offices will be located. Aware that
submerged and foreshore lands are public lands, the Mayor is now asking
you, the City Attorney, on how to assist Filinvest in its business plan and
how to realize the Mayor’s plan of a new City Hall and a one-stop
government center. How will you advise the Mayor?
A: The law on reclamation mentions that, first you have to distinguish
between submerged and foreshore lands. Why? If we are talking about
reclamation of public lands, the law allows local government units to
reclaim only foreshore lands. The National Government of course is allowed
to reclaim even submerged lands. Unsa may kalahian sa foreshore ug
submerged? Foreshore sa dagat, submerged could be anywhere else. So
pwedeng mg.reclaim ang National government even inland, even
submerged sa water. If Local government, limited only to foreshore lands.
Unya only Municipalities and chartered cities ang allowed.
Reclaimed Properties
 Submerged lands are properties of public dominion, absolutely
inalienable and outside the commerce of man. This is also true
with respect to foreshore lands. (Sections 2 and 3, Article XII of
the 1987 Constitution)
 Hence, it is only when the submerged and foreshore lands are
actually “reclaimed” that they become alienable lands of
public domain which can now be disposed of in accordance
with law. [Chavez vs. Public Estates Authority (2003)]
 R.A. No. 1899 authorized municipalities and chartered cities to
reclaim foreshore lands. But all reclamation projects are
administered and under the authority of the PRA (formerly, ???)
and now subject to the approval of NEDA.
Procedure
There are 2 options available on the part of the proponent of the project.
1. Pwede niya i.reclaim ang foreshore land at its own expense; or
2. He can enter into a joint venture with private person first like in
the case of Filinvest.
Before the physical reclamation, you need to get a permit. In the past, you
secure it from the National Housing Authority. In 2006, it was transferred to
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Philippine Reclamation Authority (PRA). Just last year, Nov. of 2013 ang
final approval, dili na sa PRA, sa NEDA na. NEDA is composed of the
President as the chairman.
Now the process would be, pa approve ang plan first sa PRA and then the
final approval would be NEDA. Pero ang function sa PRA mao ra gihapon,
siya ang mag.administer sa reclamation.
After all the requirements are complied with and the fees are paid, we now
proceed to the physical reclamation of the foreshore land. The DENR with
then issue a special patent to the PRA and then the PRA will then ask for
reimbursement kay public land pa man siya, after the actual reclamation,
there will be a title to be issued, an original certificate of title. And then the
PRA has 2 options, i.reimburse ang nag.develop. Either bayran niya through
a reclaimed land, which is always the case. The moment the title is
transferred to the LGU it ceases to be a public land and now a private land.
Mao nang gitawag na patrimonial upo reclamation. And when it becomes a
reclaimed property, then it be disposed of.
Requisites for Validity of Contracts entered into by LGU’s
A. The local government unit must have the power to enter
into the particular contract;
B. Pursuant to Section 22(c) of the Local Government Code,
there must be a prior authorization by the Sanggunian
concerned, and a legible copy of the contract shall be
posted at a conspicuous place in the provincial capitol or
the city, municipal, or barangay hall;
C. In accordance with Secs. 46 and 47, Chapter 8, Subtitle B,
Book V, 1987 Admin. Code, if the contract involves the
expenditure of public funds, there should be an actual
appropriation and a certificate of availability of funds
by the treasurer of the local government unit (Except in the
case of a contract for supplies to be carried in stock)
D.The contract must conform with the formal requisites of
written contracts prescribed by law;
What happens if there is non-compliance?
As a rule, when the contract is entered into without compliance with A and
C (power, and actual appropriation and a certificate of availability of funds)
the contract is null and void. Therefore not subject to any ratification.
But if it is B and D (prior authorization and the formal requisites) it is
ratifiable. This is confirmed in the case of Land Bank vs. Cacayuran, a
2013 case.
Effects of Non-compliance with Requisites
When a contract is entered into without compliance with (A) and (C)
requisites, the same is ultra vires and is null and void. Such contract cannot
be ratified or validated.
Ratification of defective municipal contracts is possible only when
there is non-compliance with (B) and (D) requirements. Ratification may
either be express or implied.
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Two (2) Kinds of Ultra Vires Acts:
An act which is outside of the municipality’s jurisdiction is considered
as a void ultra vires act, while an act attended only by an irregularity but
remains within the municipality’s power is considered as an ultra vires act
subject to ratification and/or validation. To the former belongs
municipal contracts which (a) are entered into beyond the express, implied
or inherent powers of the LGU; and (b) do not comply with the substantive
requirements of law e.g., when expenditure of public funds is to be made,
there must be an actual appropriation and certificate of availability of
funds; while to the latter belongs those which (a) are entered into by the
improper department, board, officer of agent; and (b) do not comply with
the formal requirements of a written contract e.g. Statute of Frauds. (Land
Bank vs. Cacayuran, G.R. No. 191667, April 17, 2013)
LIABILITY FOR DAMAGES
VII. Liability for Damages
 Art. 34, NCC: subsidiary liability of LGU for liability of local police
force in re: refusal or failure to render aid or protection to any
person in case of danger to life or property
 Art. 2189, NCC: liability of LGU’s for defective condition of roads
and other public works under LGU’s control and supervision
which results to (a) death and (b) injuries to persons.
 Art. 24, LGC: LGU’s not exempt from liability for death or injury
to persons or damage to property.
N. Bacalso is a national road; North reclamation road is also a national
road; SRP. Daghan national road. But the moment these national roads
traverse a locality then it is subject to control and supervision in regards to
the maintenance of the public work. Ang pag improve kay duty sa DPWH
but maintenance-repairs for example, if you look at the LGC, no distinction
if municipal or national. Basta lang within territorial jurisdiction of the LGU,
the city or municipal engineer has jurisdiction in regard to the maintenance
of the public works. Usually sa bar counter argument kay national road. As
you know, it is not what is required in the code. Nigawas nas 2011 bar
about damages.
2011 Bar
A collision occurred involving a passenger jeepney driven by
Leonardo, a cargo truck driven by Joseph, and a dump truck driven by
Lauro but owned by the City of Cebu. Lauro was on his way to get a load of
sand for the repair of road along Fuente Street, Cebu City. As a result of
the collision, 3 passengers of the jeepney died. Their families filed a
complaint for damages against Joseph who in turn filed a third party
complaint against the City of Cebu and Lauro.
Is the City of Cebu liable for the tort committed by its employee?
San Fernando La Union vs Firme case, distinguish government from
proprietary. Section 24 of the LGC did not provide a distinction. So my
distinction was to give the precepts under the San Fernando La Union Case,
30
governmental siya because it was delivery of and repair of roads, so it is
governmental therefore, imong argument would be not liable pero Article
24 no distinction. Niingon pa gyud ang Art 24 nga ang officers ug LGU kay
not exempt from liability arising out of negligence of employees. This is to
assume that Lauro is a regular employee kay kung special agent sad siya,
as elucidated in Meritt v Government of the Philippine Islands. The
government already consents to be held liable if the damage is caused by a
special agent. And a special agent is one who performs a function not
pertaining to his office. We are assuming here that Lauro is a regular
employee.
Problem
The Sangguniang Panlungsod (SP) of Carcar City ordered the
construction of a wooden stage for a play during its fiesta celebration. The
stage, however, collapsed causing serious physical injuries to the
participants of the play. The participants sued Carcar City and all its SP
members for Damages. May the suit prosper? If yes, who should be held
liable?
Fiesta celebration is proprietary is you apply San Fernando La Union. The
question is who shall be held liable, the City or the members of the
Sanggunian who ordered the construction of the wooden stage. Separate
and Distinct personality rule—since the LGU has a separate personality,
then the precept of separate and distinct personality of the corporation
from the officials shall also be applied. So the members of the SP may not
be held liable because the LG of Carcar possesses a distinct and separate
personality.
LOCAL ELECTIVE OFFICIALS
You know the ruling of the SC in Frivaldo already. Then the matter of
residence, you already know that domicile is synonymous with residence.
The animus animus also you know already. Animus manendi, revertendi,
non revertendi.
In 2012, X was convicted of violation of B.P. Blg. 22 (Bouncing
Checks Law) and was sentenced to serve a maximum of six (6) months of
imprisonment. X wants to run for Governor of the Province of Cebu in the
2016 elections.
A. Is X disqualified to run for local position by reason of his
conviction?
B. Will your answer be the same if X had instead applied for and
was granted probation?
1st Question: Is X disqualified to run for local position by reason of his
conviction?
A: The relevant section is Section 14 on Disqualification. It is important to
talk about this because there is an update. But first, the basics.
Let’s take a look at the relevant provision.
Disqualifications (Sec. 40, LGC)
1. Sentenced by final judgment for (1) offense involving moral
turpitude or (2) offense punishable by one (1) year or
more of imprisonment, within two years after service of
sentence.
The first disqualification of a local elective official is when he is SENTENCED
BY FINAL JUDGMENT. In the problem, that is tricky because he was only
SENTENCED to serve a maximum of 6 months of imprisonment. It is not
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definite that the decision is already final.
What is the implication here?
This is important to highlight important qualifications. Sentenced by final
judgment. That is important. For what? Conjunctive word “or”.
So in an OFFENSE INVOLVING MORAL TURPITUDE, do not include the one
year because it is “or”. So it’s either:
1. The offense involves moral turpitude only, regardless of how
long the penalty is (here, the nature of the offense is important),
or
2. The offense is punishable by one year or more than one year of
imprisonment. (this time around, disregard the nature of the
offense)
In the past, good examples of offenses involving moral turpitude include
violation of BP 22 even if it is malum prohibitum. The manner by which BP
22 is violated, naa na siya’y element of KNOWLEDGE of the INSUFFICIENCY
OF FUNDS. This element, which is by the way presumed, according to the
Supreme Court, when the check is deposited within a period of 90 days,
there is a presumption of knowledge of the insufficiency of funds makes the
offense one of moral turpitude even if malum prohibitum.
Then, the phrase within 2 years after service of sentence is applicable to
BOTH disqualifications, in other words, whether moral turpitude or for a
penalty of one year or more imprisonment. Meaning, this is NOT a
perpetual disqualification.
“Within 2 years from service”
The phrase “within two (2) years after serving sentence” should have
been interpreted and understood to apply both to those who have
been sentenced by final judgment for an offense involving moral
turpitude and to those who have been sentenced by final
judgment for an offense punishable by one (1) year or more of
imprisonment. The placing of comma (,) in the provision means that the
phrase modifies both parts of Sec. 40(a) of the Local Government Code.
[MORENO vs. COMELEC (2006, En Banc)]
SO you need to know when he served and finished serving his sentence
because you count 2 years from the service of the sentence. Mao nang layo
kayo ang gap sa problem (2012 and 2016) because you still have to
qualify pa man:
1. Whether the conviction is already final or not
2. Whether the sentence has already been served or not.
So you count two years after service of sentence because after that, he
reacquires the right to hold public office and therefore be qualified again.
2nd Question: Will your answer be the same if X had instead applied for and
was granted probation?
A: Diba, kung mu-apply ka for probation, there is already conviction? Within
the period to appeal, you file for probation instead of appealing. If mu-
appeal ka, you can’t avail of probation. So if your probation is granted by
the court? Are you still disqualified even if you availed of probation?
The court said that disqualification disappears AFTER two years from
service of sentence. According to the court in the Moreno case, this
therefore required that there is a service of sentence which means that if
there is no service of sentence, the two years does not begin to run and
Section 40 does not apply because if you are granted probation, you are
31
exempt from serving the sentence. That is the effect. This is already
qualified under Moreno vs COMELEC.
Effect of Probation:
This is as good a time as any to clarify that those who have not
served their sentence by reason of the grant of probation which, we
reiterate, should not be equated with service of sentence, should not
likewise be disqualified from running for a local elective office because of
the two-year period of ineligibility under Sec. 40(a) of the Local
Government Code does not even begin to run. (Moreno vs. COMELEC,
2006)
Under the code 2 years after the service of sentence, qualified again after 2
years of service of sentence. The new issue now is what if the kind of crime
committed carries with it the accessory penalty of perpetual disqualification.
Does section 40 (a) still apply? That from 2 years of service of sentence of
service, qualified again? Or should the Local government code yield to the
revised penal code of perpetual disqualification to hold public office.
To answer this, we have the case of Jalosjos VS Comelec June 18, 2013.
Art. 40 of the LGC and Perpetual Disqualification to Hold Public
Office in RPC
While Section 40(a) of the LGC allows a prior convict to run for local
elective office after the lapse of two (2) years from the time he serves his
sentence, the said provision should not be deemed to cover cases
wherein the law imposes a penalty, either as principal or
accessory, which has the effect of disqualifying the convict to run
for elective office. (Jalosjos vs. COMELEC, GR No. 205033, June 18,
2013)
The other disqualifications:
Disqualification, cont’d…
2. Removed from office as a result of administrative case
(prospective application only; any “office” [see Osorio
case 2004]);
3. Convicted by final judgment for violating the oath of
allegiance to the Republic;
4. Those with dual citizenship. (Manzano vs. Mercado:
should be interpreted as “dual allegiance”). See also
Cordora (2009)
The other disqualifications are the removal office as result of an
administrative case. Any case basta you are removed from office, you will
be disqualified provided that the removal from office whether elective or
appointive office as a result of an administrative case happened after the
effectivity of the local government code of 1991. Because if you are
removed from office as a result of an administrative case in 1990 or even
1991 kai ang code ni take effect Jan. 1, 1992. It should not be considered
as a disqualification on the fact of removal because the old code did not
have this provision. It is a new provision in the Code of 1991. So only those
who were removed from office administratively during the effectivity of the
Local Government Code shall be disqualified by reason of that removal.
Dual citizenship should be interpreted as dual allegiance.
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Problem
A is a former natural-born Filipino who became an American by
naturalization. A, who wanted to run for Mayor in X Municipality, then
availed of RA 9225, took his oath of allegiance and renounced his foreign
citizenship. However, A retained his American passport for his three trips to
the Philippines before the elections. A filed his certificate of candidacy for
Mayor. M, his opponent, questioned his candidacy because he was still
using his American passport. A argued that his filing of certificate of
candidacy effectively renounced his foreign citizenship pursuant to the
Mercado vs. Manzano ruling. Is A correct?
In the above problem, A is a former natural born Filipino who became an
American by naturalization. He availed of RA 9225, the reacquisition and
retention act of 2003 which is only applicable for natural born Filipinos.
So if you are a natural born Filipino who were naturalized and therefor lost
Filipino citizenship by naturalization shall not be deemed to have lost their
Philippine citizenship because under common wealth act no. 63
naturalization in a foreign country results in loss of Philippine citizenship.
But when RA 9225 was enacted it declared that this will not be the case
provided the person will comply with the requirement of taking the oath
under RA 9225. After 2003 and you are a natural born Filipino who will
have yourself naturalized to another country, you will not be losing your
Philippine citizenship but you will retain your Philippine citizenship that is
why it is reacquisition and retention. Reacquisition for those who got
naturalized before the effectivity of RA 9225 and retention for those who
will be naturalized after RA 9225 provided you will take that oath under the
law.
What happened in this question is that A availed of RA 9225 then he took
the oath of allegiance and renounced his American citizenship but still he
was using his American passport. After availing of RA 9225, he filed his
certificate of candidacy. And you remember your Mercado VS Manzano…
Si Manzano, declared by the SC that his filing of COC effectively renounced
his American Citizenship, showing that he had only one allegiance to the
Republic of the Philippines. So A invoked Manzano case.
But the SC ruled in Maquiling vs. COMELEC, July 2, 2013 -
Maquiling vs. COMELEC (April 16, 2013; July 2, 2013)
Arnado, by using his US passport after renouncing his American
citizenship, has recanted the same Oath of Renunciation he took. Section
40(d) of the Local Government Code applies to his situation. He is
disqualified not only from holding the public office but even from becoming
a candidate.
The use of foreign passport after renouncing one’s foreign
citizenship is a positive and voluntary act of representation as to
one’s nationality and citizenship; it does not divest Filipino
citizenship regained by repatriation but it recants the Oath of
Renunciation required to qualify one to run for an elective
position.
So dual allegiance siya.
As to the question, ngano wla gi-apply ang Mercado vs. Manzano? Dili diay
to effective renunciation of citizenship? G- abandon na ba? SC Clarified.
Arnado's category of dual citizenship is that by which foreign citizenship is
acquired by applying for naturalization. Unlike in Manzano, he acquired dual
citizenship by BIRTH. So involuntary to sya. So dili stricto an rule. Because
they are not required to take the oath of renunciation. The mere fact of
filing of COC carries with it the implied renunciation of foreign citizenship.
32
But kung dual citizen ka by naturalization, there is a requirement to take an
oath of allegiance to the Republic of the Philippines and you are required to
personally renounce foreign citizenship. And in Mercado, the SC warned
that the moment you renounce your foreign citizenship, it must be coupled
with overt acts compatible with renunciation. In Arnado, it is not therefore
a sincere renunciation of American Citizenship.
So you distinguish how he acquired dual citizenship, by birth or by
naturalization.
Arnado’s category of dual citizenship is that by which foreign citizenship is
acquired through a positive act of applying for naturalization. This is distinct
from those considered dual citizens by virtue of birth, who are not required
by law to take the oath of renunciation as the mere filing of the certificate
of candidacy already carries with it an implied renunciation of foreign
citizenship. Dual citizens by naturalization, on the other hand, are required
to take not only the Oath of Allegiance to the Republic of the Philippines
but also to personally renounce foreign citizenship in order to xxxxxx
candidate for public office.
FUGITIVE FROM JUSTICE
Rodriguez vs. COMELEC (1996)
“Fugitive from justice” includes not only those who flee after conviction to
avoid punishment but likewise who, after being charged, flee to avoid
prosecution. The definition thus indicates that the intent to evade is
the compelling factor that animates one’s flight from a particular
jurisdiction. And obviously, there can only be an intent to evade
prosecution or punishment when there is knowledge by the
fleeing subject of already instituted indictment, or of a
promulgated judgment of conviction.
Not only fleeing after conviction to avoid punishment but also fleeing after
being charged to avoid prosecution. But it’s a question of intent at the end
of the day.
3-TERM LIMIT RULE
The “Three Term Limit Rule”
Elements:
1) That the official concerned has been elected for three
consecutive terms in the same local government post and
2) That he has fully served three consecutive terms.
The problems revolve around whether there was interruption. It can be
either voluntary or involuntary. If ordered for example by COMELEC or any
other governmental entity, then such interruption is considered
INVOLUNTARY. This interrupts the running of the “consecutiveness”.
Otherwise, if the interruption was voluntary, either through resignation or
abandonment, through the transfer to a different position for example, it
would be considered considered as voluntary resignation and will not
interrupt the consecutiveness of the service of the term.
Another important rule is the effect of SUSPENSION. This is an on-going
question even amongst those who are already practicing law. The case of
Aldovino involved PREVENTIVE SUSPENSION. Preventive Suspension does
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not interrupt the consecutiveness, it does not interrupt the term. If one is
preventively suspended, he is merely prevented from exercising the
functions, but the officer still holds the office. There is no interruption of
the term.
What if suspension was imposed as a PENALTY? This happened to Gov.
Gwen (Garcia) who was penalized with suspension months before the
expiration of her third term. Will she be allowed to run for a 4th term? Is
there an interruption to the consecutiveness if suspension was imposed as
a penalty?
My (Atty. Daryl Bretch Largo’s) humble opinion is this—under the Code,
when one is suspended, the suspension being a penalty, a temporary
vacancy is created. The one who occupies the position of the suspended
official will merely be Acting (in an acting capacity).
For me, there is no distinction between mere preventive suspension, and
suspension as a penalty. The reasoning of the Supreme Court in Aldovino
was that preventive suspension merely barred the official from discharging
his functions. Is this not the same idea when one is suspended? I don’t
think there is removal from office, otherwise, if the penalty of suspension
really causes removal, meaning you are taken out of your post, it should
create a permanent vacancy.
You can also argue otherwise, that it would no longer constitute a penalty if
the official is not removed, that is possible. When you step down as a result
of an order of the penalty of suspension, you can argue that you are
removed from your office within the period of suspension therefore
effectively interrupting the term. I have yet to see a definitive ruling of the
Court in that regard. This is a “wait and see” situation. But going back,
insofar as preventive suspension is concerned it does not interrupt the
term.
The following are the bar questions relating to this that came out:
2008 Bar
Abdul ran and won in the May 2001, 2004, and 2007 elections for
Vice-Governor of Tawi-Tawi. After being proclaimed Vice-Governor in 2004
elections, his opponent, Khalil, filed an election protest before the
Commission on Elections. Ruling with finality on the protest, the COMELEC
declared Khalil as duly elected Vice-Governor though the decision was
promulgated only in 2007, when Abdul had wholly served 2004-2007 term
and was in fact already on his 2007-2010 term as Vice-Governor.
a) Abdul now consults you if he can still run for Vice-Governor of
Tawi-Tawi in the forthcoming May 2010 elections on the premise
that he could not be considered as having served a Vice-
Governor from 2004-2007 because he was not duly elected to the
post, as he assumed office merely as a presumptive winner and
that presumption was later overturned when the COMELEC
decided with finality that he had lost in the May 2004 elections.
What will be your advice?
2011 Bar
Adela served as mayor of Kasim for 2 consecutive terms. On her
third term, COMELEC ousted her in an election protest that Gudi, her
opponent, filed against her. Two years later, Gudi faced recall proceedings
and Adela ran in the recall election against him. Adela won and served as
Mayor for Gudi’s remaining term. Can Adela run again for Mayor in the next
succeeding election without violating the 3 term limit?
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Let me go straight to another update—take note of Ong vs. Alegre. One
person. Three terms. The middle term was disputed. The final resolution of
the COMELEC was that the person elected during the middle term was not
the winner but such decision was released only after the third term. Was
there an interruption? According to the Court, there was no interruption.
The term was fully served but it was served in a de facto capacity. Thus,
whether the official was de facto or de jure, for as long as the term was
fully served, the full service of the term is counted.
2011 Bar
Alfredo was elected municipal mayor for 3 consecutive terms. During
his third term, the municipality became a city. Alfredo ran for city mayor
during the next immediately succeeding election. Voltaire sought his
disqualification citing the 3 term limit for elective officials. Will Voltaire’s
action prosper?
ANSWER: Lataza vs. COMELEC (asked in the 2005 Bar)—Alfredo is
DISQUALIFIED. An interpretation allowing a fourth term in the new city
would effectively allow him to serve for 18 years. The reasoning of the
Supreme Court was that even if it was a new city, the mayor would still be
serving the same territory (same territorial jurisdiction) and the same
inhabitants. The spirit behind the three-consecutive-limit rule is really to
prevent service of more than 9 consecutive years. A contrary ruling would
be a circumvention allowing the service of 18 years.
Disqualified even if it’s a new city because the official will be serving the
same territorial jurisdiction and same inhabitants and besides it will
circumvent the spirit of the 3 term limit rule.
Problem
X, Y, and Z were the candidates for Mayor in Municipality of ABC. Y
had earlier filed a petition for the cancellation of X’s certificate of candidacy
on the ground that X failed to comply with the 6-month residency
requirement. During the election, and while the disqualification case was
still pending, X received the highest number of votes followed by Y.
Thereafter, the COMELEC disqualified X. W, the elected Vice-Mayor insisted
that he should become the Mayor. Should W be allowed to assume the
office of the Mayor?
Solbad na ni sa Election Law. Note that the ground for disqualification
affects eligibility. Therefore, any decision that will affect the eligibility of the
candidate would have the effect rendering the Certificate of Candidacy is
null and void ab initio. Therefore, the supposed candidate will be
considered as no candidate at all. You do not apply the rejection of the
second placer rule because there is no first placer to speak of. He is not a
candidate. So who is now entitled to this? The “second” placer. You do not
reject him. Therefore, the VM cannot insist to be installed as the Mayor.
This is in Election Law.
In Local Government Law, you can offer this explanation. Jalosjos v.
COMELEC.
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Svetlana Jalosjos vs. COMELEC (June 25, 2013)
The rule on succession in Section 44 of the Local Government Code
cannot apply in instances when a de facto officer is ousted from office and
the de jure officer takes over. The ouster of a de facto officer cannot create
a permanent vacancy as contemplated in the Local Government Code.
There is no vacancy to speak of as the de jure officer, the rightful winner in
the elections, has the legal right to assume the position.
If election contest lang and not based on eligibility, so like fraud etc., there
is no de jure or de facto. In this case, there is de jure and de facto so
cannot apply to instances when a de facto officer is ousted from office and
the de jure officer takes over. The disqualified candidate from the very
beginning (his COC is void ab initio; he not a candidate) cannot create a
permanent vacancy to trigger succession. Since there is no permanent
vacancy, it cannot trigger succession. The Vice Mayor cannot insist. The
rightful winner in the election (“second” placer) will get the position.
Concurrent Jurisdiction with Ombudsman
In administrative cases involving the concurrent jurisdiction of two or
more disciplining authorities, the body where the complaint is filed first, and
which opts to take cognizance of the case, acquires jurisdiction to the
exclusion of other tribunals exercising concurrent jurisdiction.
Under RA 7160, the Sangguniang Panlungsod or Sangguniang Bayan has
disciplinary authority over any elective barangay official. Since the
complaint against petitioner was initially filed with the Office of the
Omdusman, the Ombudsman’s exercise of jurisdiction is to the exclusion of
the Sangguniang Bayan whose exercise of jurisdiction is concurrent.
(Alejandro vs. Office of the Ombudsman, GR No. 173121, April 3, 2013)
Disciplinary proceeding. Option on the part of the private complainant. If
you want to sue a local government official under the Ombudsman, apply
the Ombudsman Law; otherwise, apply the Local Government Code. Look
at Sec. 60 for the grounds of disciplinary action (grave abuse of authority
etc.) then file it before the appropriate office. In the case of cities and
provinces, file it with the Office of the President. All others, go to the
Provincial Board. Go to Sec. 60 and 61. It’s very important.
Aguinaldo Doctrine
-mere fact that misconduct is committed in the prior term regardless if it
was known to the voters or not, upon re-election, it will operate as a
condonation of the misconduct. Principle of Condonation.
Practice of Profession
 All LCE’s cannot practice profession nor engage in any
occupation other than the exercise of their functions as LCE’s.
 SP Member can practice profession or engage in any
occupation except during session hours, with certain
limitations to lawyers on grounds of conflict of interests.
 MDs may practice profession even during officer hours in
case of emergency w/o comp.
May a Mayor practice a profession?
General Rule: No.
Unless: Mayor is a doctor of medicine even during office hours provided he
receives no compensation.
SP members including the Vice Mayor can practice profession with
34
limitations involving usually conflict of interest cases.
Example: They cannot defend accused in a criminal case where the private
complainant is the LGU in which he is a Sanggunian member.
The Sanggunian has no subpoena and contempt power. Negros Oriental
Case. Remember that also. It has been asked in the bar many times.
{September 5, 2014}
When you were under me in Local Government Law, there were several
cases that illustrate the application of the 3 term limit rule as applied to
different scenarios. In 2013, the case of ABUNDO VS. COMELEC
summarizes the basic scenarios on the rules on three term limit rule.
If you look at the elements of the three term limit rule, there is this
element that the official must be elected, had been elected for three
consecutive term and in the same position, second, there is full service for
three consecutive terms.
The “Three Term Limit Rule”
Elements:
1) That the official concerned has been elected for three
consecutive terms in the same local government post and
2) That he has fully served three consecutive terms.
Problem No. 1
1993: X, the Vice Mayor succeeded Y, the Mayor who died. X served as
Mayor until 1995.
1995-1998: X was elected and served as Mayor
1998-2001: X was re-elected and again served as Mayor
2001 Elections: Was X barred to run as Mayor?
This is based on the case of BORJA, JR. VS. COMELEC, the vice-mayor
succeeded Y who died, and the vice-mayor served as mayor until 1995.
That happened in 1993 and he served until 1995. For two consecutive
terms, X, then the vice-mayor and became the mayor got elected for
mayor. So when he ran in the 2001 elections, his candidacy was questioned
on the ground that such was already his 4th consecutive term.
Borja, Jr. v. COMELEC (1998)
Private respondent was first elected as vice- mayor, but upon the death of
the incumbent mayor, he occupied the latter’s post for the unexpired term.
He was, thereafter, elected for two more terms. The Court held that when
private respondent occupied the post of the mayor upon the incumbent’s
death and served for the remainder of the term, he cannot be construed as
having served a full term as contemplated under the subject constitutional
provision. The term served must be one “for which [the official
concerned] was elected.”
Answer:
First, X was not elected when he became mayor in 1993. Second, he was
elected, but for the position of vice-mayor. So when he assumed the
position of vice-mayor, he was not elected as mayor. So there was no
consecutiveness in this case. The term served must be one for which the
official concerned was elected.
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Problem No. 2
1988-1995: X was elected and served as Mayor for 2 consecutive terms
1995: X was re-elected and started serving as Mayor
1997: COMELEC ruled that X was not validly proclaimed and X stepped
down as ordered by the Comelec.
1998 elections: Was X barred to run as Mayor?
Answer:
This is with the element of consecutiveness. So there was interruption. The
idea of interruption connotes involuntariness on the part of the official. It
was involuntary when X step down because he was ordered to step down.
An example of voluntary renunciation of office is resignation or
abandonment. Here there is involuntary relinquishment of office. This is the
case of LONZANIDA VS. COMELEC. Petitioner did not fully serve 1995 –
1998 because when he step down in 1997, it was involuntary
relinquishment of office.
Lonzanida vs. COMELEC (1999)
Petitioner was elected and served two consecutive terms as mayor from
1988 to 1995. He then ran again for the same position in the May 1995
elections, won and discharged his duties as mayor. However, his opponent
contested his proclamation before the RTC, which ruled that there was a
failure of elections and declared the position of mayor vacant. The
COMELEC affirmed this ruling and petitioner acceded to the order to vacate
the post. During the May 1998 elections, petitioner therein again filed his
certificate of candidacy for mayor. A petition to disqualify him was filed on
the ground that he had already served three consecutive terms. The Court
ruled, however, that petitioner cannot be considered as having been duly
elected to the post in the May 1995 elections, and that petitioner did not
fully serve the 1995- 1998 mayoralty term by reason of
involuntary relinquishment of office.
Problem No. 3
1992-1998: X was elected and served as Mayor for 2 consecutive
terms
1998: X ran as Mayor but lost to Y
2000: Y faced a recall election and X was elected in the recall election
and served as Mayor
2001: Was X barred to run as Mayor?
Answer:
According to the court there was interruption in the continuity of his
service. The reason for the rule on interruption is that when he lost in 1998
and until he got elected in 2000 in the recall election, X was a private
citizen.
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Adormeo vs. COMELEC (2002)
The issue was whether or not an assumption to office through a
recall election should be considered as one term in applying the
three-term limit rule. Private respondent was elected and served for two
consecutive terms as mayor. He then ran for his third term in the May 1998
elections, but lost to his opponent. In June 1998, his opponent faced recall
proceedings and in the recall elections of May 2000, private respondent
won and served for the unexpired term. For the May 2001 elections, private
respondent filed his certificate of candidacy for the office of mayor. This
was questioned. The Court held that private respondent cannot be
construed as having been elected and served for three consecutive terms.
His loss in the May 1998 elections was considered by the Court as
an interruption in the continuity of his service as mayor. For nearly
two years, private respondent therein lived as a private citizen.
Problem No. 4
1992-2001: X was elected and served as Mayor for 3 consecutive terms
2001 elections: X did not run; Y was elected Mayor
2002: Y faced recall election and X filed certificate of candidacy for the
recall elections
Can X participate in the recall elections?
Answer:
The same rule in the earlier case, there was an interruption. Even for one
day, although it was legally impossible to be a private citizen in just 1 day.
But assuming that such happens, then apply the thinking of the court, that
such should serve as an interruption of the continuity of service.
Socrates vs. COMELEC
The principal issue was whether or not private respondent Hagedorn was
qualified to run during the recall elections. Hagedorn had already served for
three consecutive terms as mayor from 1992 until 2001 and did not run in
the immediately following regular elections. On July 2, 2002, the barangay
officials of Puerto Princesa convened themselves into a Preparatory Recall
Assembly to initiate the recall of the incumbent mayor, Socrates. On August
23, 2002, Hagedorn filed his certificate of candidacy for mayor in the recall
election. A petition for his disqualification was filed on the ground that he
cannot run for the said post during the recall elections for he was
disqualified from running for a fourth consecutive term. The Court ruled in
favor of Hagedorn, holding that the principle behind the three-term
limit rule is to prevent consecutiveness of the service of terms,
and that there was in his case a break in such consecutiveness
after the end of his third term and before the recall election.
Problem No. 5 (2005 Bar)
1992-2001: X was Mayor of a municipality for 3 consecutive terms
Before May 2001 elections: The municipality became a new city
2001 elections: X filed COC for mayor of the new city
Was X qualified to run for Mayor of the new city?
Answer:
The SC said NO. Number one, the argument that it was a new local
government having a new personality would be a circumvention of the
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mandate and spirit of the three-term limit rule as this rule is not only
mandated by the Code but also the Constitution. Otherwise, an
interpretation in favor of X would allow X to serve the same territory,
constituents and jurisdiction for 18 years. This was the ruling in the
case of Latasa vs Comelec.
Latasa vs. COMELEC (2003)
 It can be seen from Lonzanida and Adormeo that the law
contemplates a rest period during which the local elective
official steps down from office and ceases to exercise power
or authority over the inhabitants of the territorial jurisdiction
of a particular local government unit.
 Should petitioner be allowed another three consecutive terms
as mayor of the City of Digos, petitioner would then be
possibly holding office as chief executive over the same
territorial jurisdiction and inhabitants for a total of eighteen
consecutive years. This is the very scenario sought to be avoided by
the Constitution, if not abhorred by it.
Problem No. 6
1995-1998: X was elected and served as Mayor
1998-2001: X was re-elected and served as mayor, but an election
protest was filed against X in 1998
2001-2004: X was re-elected and served as mayor, and the 1998
election protest was decided against X
2004 elections: Was X qualified to run as mayor?
First term: X was elected and served as mayor.
Second term: elected and served but a protest was filed but not yet
decided.
Third term: the COMELEC ruled with finality that he was not the winner in
the second term.
So X contended that his disqualification in the second term should be
considered as an interruption. The SC said that even if you serve as a de
facto officer the term shall be counted against him. The case of Franis Ong
vs. Alegre.
Francis Ong vs. Joseph Alegre (2006)
Petitioner Ong was duly elected mayor (San Vicente) in the May 1995
elections and again in the May 2001 elections and serving the July 1, 1995-
June 30, 1998 and the July 1, 2001-June 30, 2004 terms in full. The
controversy revolved around the 1998-2001 term. Ong ran for mayor of the
same municipality in the May 1998 elections and actually served the 1998-
2001 term by virtue of a proclamation initially declaring him mayor-elect of
San Vicente. But after the term 1998-2001, it was declared that Ong was
not the real winner in the elections. The question was whether or not Ong’s
assumption of office as Mayor of San Vicente from July 1, 1998 to June 30,
2001, may be considered as one full term service.
36
Francis Ong case, cont’d …
The Supreme Court held that such assumption of office constitutes,
for Francis, “service for the full term”, and should be counted as a
full term served in contemplation of the three-term limit prescribed
by the constitutional and statutory provisions, supra, barring local elective
officials from being elected and serving for more than three consecutive
term for the same position.
His proclamation by the Municipal Board of Canvassers of San
Vicente as the duly elected mayor in the 1998 mayoralty election
coupled by his assumption of office and his continuous exercise of
the functions thereof from start to finish of the term, should
legally be taken as service for a full term in contemplation of the
three-term rule (even if he was later on, after the full term, declared that
he was not the winner in the election).
Problem No. 7
1995-1998: X was elected and served as Mayor
1998-2001: X was re-elected and served again as Mayor, but a protest
was filed in 1998
2001-2004: X was re-elected and served again as Mayor, but in July of
2001, the 1998 protest was decided against X.
2004 elections: X filed COC for mayor but it was cancelled, although
he won and was proclaimed Mayor
May 17, 2007: X stepped down as mayor as ordered
2007: X was elected again as mayor
Was X qualified to run as mayor for 2007?
Dizon vs. COMELEC
We concede that Morales occupied the position of mayor of Mabalacat for
the following periods: 1 July 1995 to 30 June 1998, 1 July 1998 to 30 June
2001, 1 July 2001 to 30 June 2004, and 1 July 2004 to 16 May 2007.
However, because of his disqualification, Morales was not
the duly elected mayor for the 2004-2007 term. Neither did Morales
hold the position of mayor of Mabalacat for the full term.
Morales cannot be deemed to have served the full term of 2004-
2007 because he was ordered to vacate his post before the
expiration of the term. Morales’ occupancy of the position of mayor from
1 July 2004 to 16 May 2007 cannot be counted as a term for purposes of
computing the three-term limit. Indeed, the period from 17 May 2007 to 30
June 2007 served as a gap for purposes of the three-term limit rule. Thus,
the present 1 July 2007 to 30 June 2010 term is effectively Morales’ first
term for purposes of the three-term limit rule.
Problem No. 8
In 1994, 1997 and 2002: X was elected Punong Barangay
2004: X ran and won as municipal councilor, leaving his post as punong
barangay
2007: X filed COC for the position of punong barangay (the same
barangay)
Is he qualified?
Bolos vs. COMELEC. This case was about abandonment. That
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abandonment is considered as voluntary renunciation
He said the 2002-2007 should not be counted because he was serving as a
municipal councilor, so there was an interruption. The SC said that there
was in interruption but it was voluntary. Therefore, it should not be
considered an interruption in the continuity of his service.
Bolos, Jr. vs. COMELEC
The Court agrees with the COMELEC that there was voluntary
renunciation as Punong Barangay. The COMELEC correctly held: It is
our finding that Nicasio Bolos, Jr.’s relinquishment of the office of
Punong Barangay of Biking, Dauis, Bohol, as a consequence of his
assumption to office as Sangguniang Bayan member of Dauis, Bohol, on
July 1, 2004, is a voluntary renunciation.
All the acts attending his pursuit of his election as municipal councilor point
out to an intent and readiness to give up his post as Punong Barangay once
elected to the higher elective office. He knew that his election as municipal
councilor would entail abandonment of the position he held, and he
intended to forego of it. Abandonment, like resignation, is voluntary.
Problem No. 9
X was elected mayor 3 times during the terms: 1998-2001, 2001-2004 and
2004-2007
In September 2005, X was ordered “preventively suspended” by the
Sandiganbayan
In 2007, X filed a COC and ran for mayor.
Was X qualified to run for the 2007 elections?
This is the case of Aldovino vs COMELEC. Preventive suspension was not
considered as an interruption because when we speak of an event that
should cause an interruption it should refer to an involuntary loss of
title. When one is preventively suspended you are simply barred from
discharging functions. There is no corresponding loss of title so it should
not be considered as loss of title.
Aldovino vs. COMELEC (2009)
Problem 10: Is the preventive suspension of an elected public official an
interruption of his term of office for purposes of the three-term limit rule?
A: “Interruption” of a term exempting an elective official from the three-
term limit rule is one that involves no less than the involuntary loss of
title to office. An officer who is preventively suspended is simply
barred from exercising the functions of his office but title to office
is not lost.
37
Problem 11 205592/G.R. No. 205852/G.R. No. 206360. September 2, 2014 )]

For four (4) successive regular elections, namely, the 2001, 2004, 2007 and
2010 national and local elections, A vied for the position of municipal
mayor. In both the 2001 and 2007 runs, he emerged and was proclaimed
as the winning mayoralty candidate and accordingly served the
corresponding terms as mayor. In the 2004 electoral derby, however the
municipal BOC initially proclaimed as winner B, who, in due time,
performed the functions of the office of mayor. A protested B’s election and
proclamation. A was eventually declared the winner of the 2004 mayoralty
electoral contest, paving the way for his assumption of office starting May
9, 2006 until the end of the 2004-2007 term on June 30, 2007, or for a
period of a little over one year and xxxx month. Was A qualified to run for
the 2010 elections?
Abundo vs. COMELEC. Unlike in the case of Ong vs Alegre, he was able
to serve a portion of the term of 2007 for a couple of months. Was A
qualified to run for the 2010 elections? Diba pag 2004 wa man siya ni daog.
Ni assume lang siya ug office pag hapit na mu end ang term. Should it be
counted against him? If we say that B was a de facto officer beginning
2004 until May 9 2006 and the capacity of a de facto officer serving an
office is to be counted against him. Then, conversely, it should not be
counted against the de jure officer because he did not in fact serve the
term. So it was in this case that the SC narrated all possible scenarios
involving the three term limit rule. The 2-year period during B was serving
as mayor is considered as an interruption which effectively removed A from
the ambit of the three-term limit rule. This is a new case.
Abundo, Sr. vs. COMELEC (2013)
The consecutiveness of what otherwise would have been Abundo’s
three successive, continuous mayorship was effectively broken during the
2004-2007 term when he was initially deprived of title to, and was veritably
disallowed to serve and occupy, an office to which he, after due
proceedings, was eventually declared to have been the rightful choice of
the electorate. The two-year period during which his opponent,
Torres, was serving as mayor should be considered as an
interruption, which effectively removed Abundo’s case from the
ambit of the three-term limit rule.
The 2013 case of Abundo, Sr. vs. COMELEC summarized the
prevailing jurisprudence on issues affecting consecutiveness of terms
and/or involuntary interruption.
{POST-MOCK BAR, September 26, 2014}
LOCAL GOVERNMENT LAW
(Municipal Corporation Law)
Questions:
What is “local autonomy”?
True or False:
1. The National Government exercises general supervision over
a Province.
2. The National Government exercises general supervision over
the ARMM.
1. False. why?
Student: it is the president that exercises general supervision.
Atty: Ah, it wrong to say national gov’t? So, we have to specify the agency
in the national gov’t or authority in the national gov’t that for who
exercises the power of general supervision. Ok? You were right if it were
the president then the statement becomes true. Because in so far as
congress is concerned, it can be considered as one of control because in
the first place the LGU is created by law and therefore its existence and
powers are derived from Congress. The President exercises general
supervision only. Of course the SC exercises judicial review over acts of
LGU.
2. False.
What would be the correct statement? I’m asking this question because
there is a need to clarify WON all gov’t units, including ARMM or
autonomous region for that matter, are under the general supervision of
the President. Let us say, the President exercises general supervision over
LGU, included ba na ang ARMM? Considering that there seems to be a
difference in the level or degree of autonomy between the LGUs (provinces,
cities, municipalities and barangays) and the autonomous regions. So this is
again a reminder.
I am talking about the case of Limbona vs. Mangelin.
Local Autonomy

Limbona vs. Mangelin Now, autonomy is either decentralization of

So if you have not read the other cases, you just read Abundo vs.
administration or decentralization of power.
COMELEC.

There is decentralization of administration when the

[UPDATE ON ELECTION LAW: Another update in Election law by the way
central government delegates administrative powers to political
was in the news 3 or 4 days ago, the SC nullified the rule on computation
subdivisions in order to broaden the base of government power and in
or limitation/restriction on the airtime campaign. So, instead of the more
the process to make local governments “more responsive and
stringent totality rule, meaning aggregate bah, gibalik to per station. Murag
accountable,” and “ensure their fullest development as self-reliant
overbreadth to. I have not read the case yet but I can only surmise it’s
communities and make them more effective partners in the pursuit of
more of unreasonable restriction to the freedom of expression. Overbreadth
national development and social progress.”
because if the concern of the COMELEC is to prevent rich candidates from
abusing or taking advantage of airtime during their campaign, there is still
a limitation to that noh. So dili diay necessary nga i-aggregate, pwede ran a
It was in here that the SC explained two concepts of autonomy. One is the
per station. Anyway, your fear is addressed by a different provision which is
decentralization of administration and the other is the decentralization of
limitation on election expenditure. (See GMA Network, Inc. Vs.
powers. Decentralization of power is not being applied or implemented in
Commission on Elections/ABC Devt. Corp. Vs. COMELEC/Manila
our jurisdiction. The SC mentioned or makes this comment, now the
Broadcasting Co., Inc., et al. Vs. COMELEC/Kapisanan ng mga
autonomy is either decentralization of administration or decentralization of
Brodkaster ng Pilipinas, et al. Vs. COMELEC/Radio Mindanao
power. The SC was simply referring to the general idea of autonomy
Network, Inc. Vs. COMELEC G.R. No. 205357/G.R. No. 205374/G.R. No.
meaning autonomy in any particular jurisdiction.

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Limbona case, cont’d …
Decentralization of power, on the other hand, involves an
abdication of political power in favor of local government units
declared to be autonomous . In that case, the autonomous
government is free to chart its own destiny and shape its
future with minimum intervention from central authorities.
According to a constitutional author, decentralization of power
amounts to “self-immolation,” since in that event, the autonomous
government becomes accountable not to the central authorities
but to its constituency.
But it was clarified later on in the case of Pimentel that in the Philippines
the kind of decentralization that is being applied or implemented is
decentralization of administrative powers. There is no total abdication of
political powers on the issue.
Remember I mentioned relevant provisions in the Constitution in Art. 10 on
the extent of the President over autonomous region? So may basis ta for
saying that the President exercises general supervision.
Administrative Powers or Political Powers?
What is the kind of decentralization adopted or practiced in the
Philippines?
Pimentel v. Aguirre, GR No. 132988, July 19, 2000: Under the
Philippine concept of local autonomy, the national government has not
completely reqlinquished all its powers over local governments
including autonomous regions. Only administrative powers over
local affairs are delegated to political subdivisions. Thus,
policy-setting for the entire country still lies in the President
and Congress.
(Also cited in Kida vs. Senate, October 18, 2011)
Problem
Confident that Municipality of Consolacion can qualify as a new
city under existing laws, its officials ask you whether the whole
Province of Cebu will participate in the plebiscite that will be conducted
(assuming that they succeed in persuading Congress to pass a law
converting Consolacion into a city). What will be your advice?
In downgrading (like from independent component city to component city)
there is a need for plebiscite. Who will participate? That specific city (its
inhabitants).
If it’s a case of upgrading, (involving a highly urbanized city) the Supreme
Court ruled in the case of Umali, that if you upgrade, it will become
independent of the province. If it’s a component and it becomes
independent or a highly urbanized city, it’s beyond the supervision of
province, and since it is beyond the supervision of the province, it is not
part of the province anymore, territorially speaking. In fact, it will not
anymore contribute to the funds of the province. The Supreme Court ruled
that this is substantial alteration of boundaries.
Theoretically, you can qualify your answer, but legally, you cannot because
when you create a city today, you need to take 100 million income in the
past 2 preceding years. As was mentioned before, RA 9009 only amended
the section about a newly created city but it did not any corresponding
changes or amendments to that section about highly urbanized city (which
is still 50 million). This means that if you create a city today, legally, it can
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exist as a highly urbanized city already because the requirement is just 50
million and it is then beyond the supervision of the province of Cebu.
Applying Umali doctrine, mother province of Cebu should participate in the
plebiscite.
Miranda vs. Aguirre (Sept. 1999)
The Supreme Court ruled that plebiscite was required even in cases of
“conversion”.
It observed that the common denominator in Section 10, Article X of the
1987 Constitution is the material change in the political and economic rights
of the local government units directly affected as well as the people
therein. It is precisely for this reason that the Constitution requires the
approval of the people in the political units “directly affected.”
Umali vs. COMELEC (April 2014)
While conversion to an HUC is not explicitly provided in Sec. 10,
Article X of the Constitution, xxxx the conversion of a component city
into an HUC is substantial alteration of boundaries. As the phrase
implies, “substantial alteration of boundaries” involves and necessarily
entails a change in the geographical configuration of a local government
unit or units. The phrase “boundaries” should not be limited to the mere
physical one, referring to the metes and bounds of the LGU, but also to its
political boundaries.
Specific Criteria
Barangays: Population
Municipalities: Income, Population & Land Area
CC: Income & Population OR Land Area
HUC: Income & Population
Province: Income & Population OR Land Area
Question
In the LGC of 1991, a municipality may be created with less than 50
sq. kms. if it is an island. Under the LGC of 1991, however, there is no such
exception when it comes to creation of a province which normally requires
at least 2,000 sq. kms. May the implementing rules of the LGC of 1991
provide for a similar exception?
Navarro vs. Ermita
– this is a case involving a province, which has a different rule when
compared to a municipality in terms of land area requirement
 Par. 2 of Art. 9 in the IRR of the LGC of 1991, which states that
“the land area requirement shall not apply where the proposed
province is composed of 1 or more islands” violates the LGC of
1991 and therefore null and void.
 Nowhere in the LGC is the said provision stated or implied.
Under Sec. 461 of the LGC, the only instance when the territorial or
land area requirement need not be complied with is when there is
already compliance with the population requirement.
39
2010 Navarro vs. Ermita, reversed in 2011!
 SC through J. Nachura, ruled that Congress intended to apply the
exemption on land area requirements enjoyed by municipalities
and cities which have islands as territories to the Province
(Province of Dinagat)
contiguity is required, but American law states that that should
be a requirement insofar as the merger of LGUs is concerned. So,
territories that are merely adjacent but are not contiguous may
not be merged.
What will happen to the corporate personality of the merged units?

 Note of J. Carpio’s Dissent that the majority opinion will allow the - Ma extinct na ang existence or personalities. Based on American
creation of a province with only one (1) unit (say a municipality) jurisprudence, they will lose their respective corporate
instead of various component LGU’s. personalities and there is now just one corporate personality.

What will happen to the ordinances that were passed in the LGUs that have
Question: ceased to exist?

- The rule again, based on American jurisprudence, is that until

For the purpose of determining compliance with the income
and unless the new unit can come up with its own ordinance,
requirements for the creation and/or conversion of a local government unit
then the respective ordinances of the merged units will continue
(LGU), what constitutes the “annual income” of an LGU?
to be effective, but only with respect to their own territories, until
new ordinances shall have been passed. Those are important
considerations.
Again, clarification, RA 9009 increasing to 100M and restricting the
component to locally generated income, therefore excluding all other
Problem
sources not internally generated, like Internal Revenue Allotment (IRA)
applies only in the creation of a city. Meaning, if there is a creation of a
In preparation for the 2016 local and national elections, the
province or a municipality, we go back to the general rule that IRA, being
COMELEC conducted investigations in order to ascertain the veracity of
distributed or released automatically to all LGUs, is not subject to any
reports of “ghost precincts”. Based on the investigations it conducted,
condition or restriction, and it can also be considered as forming part of the
COMELEC discovered that there are no inhabitants in Barangay Diwata in
gross annual income. So, regular siya kai regularly released man. Caveat
Municipality of Lazi, Siquijor. Consequently, the COMELEC removed
lang ni siya. Not yet tested sa SC ruling but I’m sure it’s an important issue.
Barangay Diwata among the list of precincts in the Municipality of Lazi,
So, RA 9009 only applies to the creation of cities, and I don’t know if gi- Siquijor for purposes of the 2016 elections. Is the act of the COMELEC
overstretch nasad nako but I’m thinking also that it restricts the manner of valid?
creating a city, because it mentions of two kinds of creations of cities. One,
when you convert a municipality into a city and the other is when you make
The act of the Comelec in delisting a precinct would result to delisting a
the city out of clustered barangays. Ang ako lang thinking nga who knows,
barangay because under the Omnibus Election Code, every barangay must
there’s another way of creating a city, other than municipality converted
have at least one precinct. If that barangay is not provided with a precinct,
into a city or cluster of barangays made into a city. What if a province is to
it is equivalent to abolition of that barangay and this is not the correct
be converted into a city? Di na muapply ang RA 9009. Ingon si Pimental
process of abolition. There is a specific requirement in case of abolition of
this is to prevent this mad rush into becoming a city para lang makakuha
a local government unit, in particular a barangay.
ug IRA, sila sad ga mad rush sad sila sa paghimo ug RA 9009. Just a
question.
The Omnibus Election Code mandates that every barangay must have at
least one precinct. If you remove a barangay from the list of precinct that
MERGER OF LGU’s
would mean that you are not recognizing that particular barangay.
Merger of LGU’s Supreme Court said, it does not necessarily follow that just because there
are no inhabitants at the time of the investigation that it is a ghost precinct
 Should territory to be annexed be “contiguous”? because people move.
 What will happen to the “corporate personalities” of the merged
It could be possible that at the time of the creation of a barangay, which
units?
could be many decades ago, there were inhabitant and when the Comelec
 What will happen to the ordinances of the merged units, will
conducted the investigation, the inhabitants transferred to another
these ordinances be considered ineffective?
barangay. Don’t you think it is possible? It is possible.

I mentioned earlier that abolition is not automatic because there is a

Let’s proceed to the basic distinction first. If you create a legislative district,
process. Let me go to this next problem which is related to the issue on
the requirement is that the district should be contiguous, compact and
abolition.
adjacent. Pero a local government unit, is the only requirement contiguity?
What’s the difference between adjacent and contiguous?
Problem

- In American law on municipal corporations, gidistinguish ang

Barangay Pobre is the poorest of all barangays in the Municipality of
adjacent and contiguous. Ang contiguous mas restrictive siya in
Carmen mainly because of its rocky, hilly, and mountainous topography. It
the sense that the two LGUs should touch each other in their
thrives mainly on the IRA that it receives. Without the IRA, it could hardly
boundaries. Adjacent only requires that the territories are near
pay even the honoraria of the barangay tanods.
each other. Dili mag require ug touching. Contiguity would
require a higher threshold while adjacent is more general, pwede
1. Can it lawfully be abolished?
near. Of course, exception kung islands, dili mana nimo ma
2. If yes, what is the procedure for the abolition of Barangay Pobre?
require na contiguous.
- As to merger, there’s no specific provision in the law whether

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Abolition
Ground:
When its income, population, or land area has been irreversibly
reduced to less than the minimum standards as certified by the
national agencies concerned. (Sec. 9, LGC)
Note: Irreversible reduction to less than the minimum standard only offers
a ground for abolition. Hence, a further act (law or ordinance) is still
required to effect abolition. [DILG Opinion NO. 17 Series of 2006]
Remember the rule: the ground for abolition is irreversible reduction to less
than the minimum standards but income is not a criterion for the creation
of a barangay. This is a bit tricky but this is just a reminder.
When its income, population or land area has been irreversibly reduced to
less than the minimum standards as certified by the appropriate agency;
income in barangay is irrelevant. No matter how poor the barangay may
be, it may not be considered right away as a ground for the abolition.
But even if it is a ground for abolition, there is still a procedure. What is the
procedure?
First, there should be an ordinance of the Sanggunian Panlalawigan of
which the Municipality of Carmen is a part;
Next, what should be stated in the ordinance abolishing the barangay?
Second, the ordinance should specify the territory to which this barangay
will become part. As you know when you abolish a barangay, it does not
mean it will disappear. Hence, the ordinance must specify to which territory
the barangay abolished will become part of.
This brings me to Section 9 and 10 of RA 7160 –
 Section 9, RA 7160 x x x. The law or ordinance abolishing a
local government unit shall specify the province, city,
municipality, or barangay with which the local
government unit sought to be abolished will be
incorporated or merged.
 Section 10, RA 7160. Plebiscite Requirement. No creation,
divison, merger, abolition, or substantial alteration of
boundaries of local government units shall take effect
unless approved by a majority of the votes cast in a
plebiscite called for the purpose in the political unit or
units directly affected. Said plebiscite shall be conducted
by COMELEC within 120 days from the date of effectivity
of the law or ordinance affecting such action unless such
law or ordinance fixes another date.
In regard to abolition I have three (3) important questions:
Questions
 What will happen to the properties owned by the abolished LGU?
 What will happen to the obligations incurred by the abolished
LGU?
 Will the officers of the abolished LGU continue to exercise their
functions?
What will happen to the properties owned by the abolished LGU? They will
not of course disappear. The relevant question there is, will there be
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payment of compensation? Automatic absorb? If there will be payment of
compensation who will receive when the LGU is already annexed to another
LGU?
- Ownership of the properties will be transferred to the territory to
which the abolished LGU is annexed.
What will happen to the obligations incurred by the abolished LGU?
- The rule therefore on obligations is that, obligations are
shouldered or assumed. In fact, based on American
Jurisprudence, the territory to which the abolished LGU is
annexed, will have the right to dispose of the abolished LGU’s
properties in order to pay off the abolished LGU’s obligations.
Will the officers of the abolished LGU continue to exercise their function?
- Certainly, they will not. The moment there is valid abolition of an
office, then there is no more relationship between the public
officer and the office itself.
This came out in the bar exam. Settlement of boundary dispute –
2005 Bar
There was a boundary dispute between Dueñas, a municipality, and
Passi, an independent component city, both of the same province. State
how the two local government units should settle their boundary dispute.
Before the Old Local Government Code of 1983, the Revised
Administrative Code provided for two levels of boundary disputes. The
Provincial Governments were then allowed to hear and decide settlement
disputes.
It was changed by the old Government Code where the
Sanggunian of the mother province for example were not anymore given
the power to decide. In a very long time during the time of Marcos, any
disputes as to boundary had to be filed in the Regional Trial Court.
Although there may be a requirement on exerting efforts to settle a case,
the Sanggunian panlalawigan did not have authority to decide sitting as a
quasi judicial body or probably a judicial body since this would require a
specific decision on matters of law.
Under the Local Government Code of 1991, the Sanggunian can
now decide and the Regional Trial Court will only have jurisdiction if a
decision by the Sanggunian has already been made.
Steps in Settlement:
1st level: Amicable Settlement
2nd level: Sanggunian
3rd level: Appeal to the RTC
Settlement of Boundary Disputes
1. It is mandated that boundary disputes between and among local
government units shall, as much as possible, be settled amicably.
2. Amicable settlement is within the jurisdiction of the Sanggunian/s
of the mother unit/s as a general rule.
3. In case of failure to settle, the Sanggunian concerned tries the
case.
4. Within the time and manner prescribed by the Rules of Court,
any party may elevate the decision of the Sanggunian
concerned to the proper Regional Trial Court having jurisdiction
over the area.
41

Bar question: State how two Local government units can settle their
boundary dispute.
See Sec. 118 & 119 LGC
LOCAL POLICE POWER
Local Police Power
 THE “GENERAL WELFARE CLAUSE”:
Sec. 16. General Welfare. Every local government unit shall
exercise the powers expressly granted, those necessarily implied
therefrom, as well as powers necessary, appropriate, or incidental
for its efficient and effective governance, and those which are
essential to the promotion of the general welfare.
In the past (bar) you will be given an ordinance, and you will be asked to
determine the validity of the ordinance. In many cases the ordinance
involved a police power measure.
Requisites for Validity of Local Police Power
Tatel vs. Mun. of Virac:
7. must not contravene the Constitution AND statute
8. not unfair or oppressive (also a constitutional requirement)
9. not partial or discriminatory (also a constitutional
requirement)
10. not prohibit, but only regulate lawful trade (see: De la Cruz
vs. Paras where an ordinance prohibited the operation of night
clubs)
11. consistent with public policy (because of the requirements of
valid delegation of legislative power) see: (Lim vs. Pacquing)
where it was found out that the “national policy”was for National
Government, not for LGU’s, to grant “franchises” for operation of
jai-alai. LGU’s can only regulate but not grant operation of jai-
alai.
12. not unreasonable (also a constitutional reqt.) (See: Balacuit
case where an ordinance penalized movie houses that charged
full payment for admission of children between 7-12)
13. xxx also applies “lawful subject” and “lawful means”
requirements!
Simplified by Supreme Court as:/All 6 are covered by: lawful subject”
and “lawful means”
Lawful subject – any act that affects the public, not just a private group or
class; a lawful subject of regulation/ the act affects the public and therefore
it is subject to regulation
Lawful means – the means employed in order to achieve or accomplish the
purpose of the law, shall be reasonable necessary and not unduly
oppressive upon individuals.
Q: Do you know how to apply the second requisite of lawful means?
A: There are two tests usually applied to determine compliance on the
lawful means requirement…
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Two (2) Tests are usually applied:
3. Rational Relationship Test
4. Strict Scrutiny Test
Using the rational basis examination, laws or ordinances are upheld if they
rationally further a legitimate governmental interest. Governmental interest
is extensively examined and the availability of less restrictive measures is
considered.
Applying strict scrutiny, the focus is on the presence of compelling, rather
than substantial, governmental interest and on the absence of less
restrictive means for achieving that interest. [Fernando vs. St. Scholastica’s
College, G.R. No. 161107, March 12, 2013]
On the first Test (Rational basis examination/Rational Relationship Test),
there are only two things to remember. Namely, these are the following:
a) That there must be a “Legitimate Governmental Purpose” (e.g. general
welfare health, traffic, etc.), and
b) It is the “Least Intrusive means”
- meaning, there must be no other means of accomplishment that are
available. Otherwise, it is considered to be an overbreadth (or not the least
intrusive).
On the other hand, Strict Scrutiny Test requires a higher threshold. It does
not only require a legitimate governmental interest. It rather requires
“compelling state interest”. Examples of which are on accounts of national
security, maintenance of peace and order, territorial integrity, etc.
Q: Since there are two tests, when do apply one and not the other?
A: The courts are guided by what the nature of the right, liberty or freedom
is. It must be determined whether or not it involves “high value freedom”.
If what is involved, is a high value freedom then Strict Scrutiny Test must
be applied. Otherwise, what is applicable is the Rational Relationship Test.
High value freedom includes right to privacy, expression, religion and the
like.
Consequently, the burden of proving the unconstitutionality does not lie on
the one assailing it. Instead, the burden of proving the existence of
compelling state interest belongs to the state. The presumption of
constitutionality is not observed in this situation.
In the case of non-high value freedoms like socio-economic rights,
business, etc., the test applicable is the Rational Relationship Test.
Moreover, there is also a presumption of constitutionality of the regulation.
These rules are also applicable to ordinances issued as police measures
.
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Lucena Grand Central Terminal, Inc. vs. JAC Liner (2005)
As with the State, the local government may be considered as having
properly exercised its police power only if the following requisites are met:
(1) the interests of the public generally, as distinguished from
those of a particular class, require the interference of the State,
and (2) the means employed are reasonably necessary for the
attainment of the object sought to be accomplished and not
unduly oppressive upon individuals. Otherwise stated, there must be a
concurrence of a lawful subject and lawful method.
Lucena Grand Central Terminal, Inc. vs. JAC Liner (2005)
Facts: There were certain terminals in the interior part of the city. The
existence of these terminals was believed to be the cause of the traffic
congestion. The solution was to have a terminal and make it a central
terminal outside the city. Indeed it was implemented by the LGU but at the
same time it ordered through the ordinance that existing terminals inside
the city cannot operate as terminals anymore. Aggrieved, the owners filed a
case in court questioning the ordinance on the ground that it took away
from them their property without just compensation. The LGU countered by
contending that it was an exercise of Local Police Power.
Issue: Was it a valid exercise of Police Power?
Ruling: No, it was an invalid exercise of Local Police Power.
A valid exercise of Local Police Power presupposes that it is of lawful
subject and lawful means. Furthermore, the lawful means requirement
holds that the means used to accomplish the subject must be reasonably
necessary.
In the present case, the means employed by the City was not reasonably
necessary. It is because there are other more conservative means available
to resolve the issue on traffic congestion. To wit, it could have implemented
strictly the traffic rules, or resorted to road-widening—the City did not.
Hence, the City’s act was an overbreadth.
CAVEAT: Most recent Jurisprudence now teaches that the Overbreadth
Doctrine should be merely contained to Freedom of expression cases.
LOCAL EMINENT DOMAIN
Heirs of Alberto Suguitan vs. City of Mandaluyong (G.R. No.
135087, March 14, 2000)
Despite the existence of this legislative grant in favor of local
governments, it is still the duty of the courts to determine whether
the power of eminent domain is being exercised in accordance
with the delegating law. In fact, the courts have adopted a more
censorious attitude in resolving questions involving the proper
exercise of this delegated power by local bodies, as compared to
instances when it is directly exercised by the national legislature.
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Local Eminent Domain, cont’d…
Specific Requirements: (Sec. 19, LGC and Jesus is Lord Christian School vs.
City of Pasig case)
5. An ordinance is enacted by the local legislative council
authorizing the local chief executive, in behalf of the local
government unit, to exercise the power of eminent domain or
pursue expropriation proceedings over a particular private
property.
6. For public use, purpose, or welfare, or for the benefit of
the poor and the landless. (cf. Sec. 33 of xxx IRR)
The specific requirements, diba you’ve learned this already. Just a
reminder, it’s now ordinance instead of resolution which was the
requirement before in the old code.
But the case of VM Paranaque is open to the possibility that even if a
resolution was passed in order to authorize the local chief executive to
expropriate, if the resolution was passed following the procedure for
passing an ordinance, it may comply with the requirements. So that’s the
important thing that you need to remember. So you cannot be strictly
positivist with your approach that and law kay ordinance so there’s no way
that a resolution can take the place of an ordinance. What the Supreme
Court said in MV Paranaque was that if a resolution was passed, but then
again you would ask why would the Sanggunian would pass that, but
maybe only after realizing that the requirement now is an ordinance. And
the ordinance must be specific in the sense that it should specify the
particular private property. So you should not have an ordinance that is too
sweeping simply authorizing the local chief executive mura bag general
power of attorney ba, so it must be specific over a particular private
property. This is just a reminder kay basin imo focus ang ordinance ra then
ang other requirements makalimot ka.
City of Cebu vs. Dedamo (2002)
 While Sec. 4 of Rule 67 of the Rules of Court provides that just
compensation shall be determined at the time of the filing of the
complaint for expropriation (or, time of taking whichever came
first), such rule cannot prevail over RA 7160, which is a
substantive law.
 Sec. 4, Rule 67 (time of filing of complaint or taking, whichever
came first) vs. LGC: at the time of “taking”.
You know na noh nga ang reckoning point of the just
compensation is the TAKING. Unlike in the case of expropriation of the
national government that the just compensation will have to be based on
the fair market value of the property at the time of taking or filing of a
complaint whichever comes first. Sa local government expropriation,
time of taking gyud. Specific. And then, immediate possession would
require a deposit. 15% of the fair market value based on the current
tax declaration. In the case of national expropriation, how much is the
deposit for immediate possession while pending pa ag expropriation? That’s
another important difference. You should take note of that. The Rules of
Court would require a deposit of the value of the property . Meaning 100%.
100% gyud para nay immediate possession while the case is still pending.
Now Republic vs. Lim, familiar?
43
Republic vs. Lim (2005)
The landowner is entitled to recover possession of the property
expropriated if the government fails to fully pay just
compensation to the owner within a period of five (5) years from
the finality of the judgment in an expropriation proceeding.
MCIAA vs. Lozada, Sr. (2010)
Reversing “Fery vs. Municipality of Cabanatuan” (1921):
“The expropriator should commit to use the property pursuant to
the purpose stated in the petition for expropriation filed, failing
which, it should file another petition for the new purpose. If not, it
is then incumbent upon the expropriator to return the said
property to its private owner, if the latter desires to reacquire the
same.”
Anunciacion Vda. De Ouano vs. Republic (Feb. 9, 2011)
If the genuine public necessity of expropriation of private land ceases or
disappears, then there is no more cogent point for the government’s
retention of the expropriated land. The same legal situation should hold if
the government devotes the property to another public use very much
different from the original or deviates from the declared purpose to benefit
another private person.
So the case of Fery v. Cabanatuan had been reversed. Now
remember pamo sa ruling sa Fery v Cabanatuan? Nag expropriate for a
particular public purpose pero iyang gi abandon ang public purpose of the
expropriation. Gi change niya for lain na public purpose. So two purposes.
Let’s say ni expropriate siya for public plaza nya diay to giconvert niya to
recreational facility. What was the ruling of the court in the case of Fery ?
Para makasabot mo unsay gireverse. In Fery v. Municipality of Cabanatuan,
Supreme Court said the moment the expropriator completed the
expropriation and a certificate of title is issued pursuant thereto, the
expropriator becomes kuno class an absolute owner or an owner in fee
simple. Sa ato pa, he has all the discretion on what to do with the property.
So pwede niya I abandon ang public purpose, pwede sad niya icontinue,
pwede sad niya ireplace. Such that the original owner cannot necessarily
recover the property if the expropriator will not use it for the public purpose
for which the expropriation was initiated.
Gireverse ni sa Supreme Court. First in MCIAA v Lozada, 2010,
second, Anunciacion Vda. De Ouano vs. Republic. Nya may reasoning
ang court. No. 1 ang Fery case penned by an American jusrtice, 1921
Spreme Court America nya gitrace sa Spreme Court ug unsa ba gyud diay
ng sa US. Mao na ang conception sa US. Nya niingon dayon ang Supreme
Court: Since 1921, we had the 1935 Consti, the 1973 Consti and then of
course the 1987 Constitution. Nya common kuno aning 3 Consti class the
requirement of public purpose. Maong niingon ang Supreme Court na,
indeed correct si Lolo Bernas, na while our constitutional law is basically
patterned from that of the US, we cut the umbilical cord.. karemember mo
ana? Sakit sakit gyud to. (hahaha) So kini, for obedience ra gud na gud.
Kung applicable ang rule sa US, I apply nato. Pero kung tan-aw nato nay
change in circumstances or a different scenario, di nato iapply. We come up
with our own. This is one example. So nachange na ang legal landscape. So
Supreme Court now says the expropriator should commit its use pursuant
to the purpose stated. Kay ug absolute owner ka, kining the disposition was
unconditional. Sa Fery v Cabanatuan naai expection ang court na unless the
expropriation proceeding provided for a condition. Kung wala ang condition
sa decision, absolute siya. Unconditional. But now, Supreme Court said it is
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subject to the condition .
Anunciacion Vda. De Ouano vs. Republic (Feb. 9, 2011), cont’d
The taking of a private land in expropriation proceedings is always
conditioned on its continued devotion to its public purpose. As a
necessary corollary, once the purpose is terminated or peremptorily
abandoned, then the former owner, if he so desires, may seek
reversion (return), subject of course to the return, at the very least, of
the just compensation received. The notion that the government, via
expropriation proceedings, acquires unrestricted ownership for a fee simple
title to the covered land, is no longer tenable.
Either i-abandon ang public purpose or ilisan ug lain na purpose.
Interestingly, niingon ang Supreme Court na dapat mu-file kuno ug laing
information.
In case of Immediate Possession
Before a local government unit may enter into the possession of the
property sought to be expropriated, it must (1) file a complaint for
expropriation sufficient in form and substance in the proper court and (2)
deposit with the said court at least 15% of the property’s fair market value
based on the current tax declaration. The law does not make the
determination of a public purpose a condition precedent to the
issuance of a writ of possession. [Francia vs. Meycauayan (2008)]
{September 27, 2014}
(Discussion of Mock Bar Exam question earlier raised by Miguel
Lumapas pertaining to the reclassification of land containing mineral oil
deposits into commercial and ordering the oil establishments to transfer
their properties and the Secretary of Energy assailing the same ordinance:
The case of Social Justice Society vs Chevron or Atienza (2008), involving
the Pandacan Oil, something like that. And the zoning ordinance was
upheld as a police power measure. Apparently the Supreme Court made a
finding on the hierarchy of rights, chevron and those other oil companies
affected, invoked the right to property, kay business man, so property right
daw. On the other hand, promotion of the right general welfare, involves
the right of the locality to life. Between right to property or life, mo prevail
ang right to life. Kay ang right to life daw is irreplaceable. But you can
replenish loss from property. Like love, irreplaceable, cannot be quantified.
)
Problem
The City of Cebu entered into a contract for services with DBL Corporation
under which the latter will provide machineries, equipment, and facilities for
the dumping of garbage in a dumpsite. The contract is for a term of 5 years
at a rate of P1.5M per month. After two years, the City of Cebu, which was
already under a new administration, stopped paying the monthly fees to
DBL Corporation on the ground that the contract was not authorized by the
SP and not covered by actual appropriation for the full amount of the
contract. May the City of Cebu be held liable to DBL Corporation?
44
Requisites for Validity of Contracts entered into by LGU’s
A. The local government unit must have the power to enter into
the particular contract;
B. Pursuant to Section 22(c) of the Local Government Code, there
must be a prior authorization by the Sanggunian concerned,
and a legible copy of the contract shall be posted at a
conspicuous place in the provincial capitol or the city, municipal,
or barangay hall;
C. In accordance with Secs. 46 and 47, Chapter 8, Subtitle B, Book
V, 1987 Admin. Code, if the contract involves the expenditure of
public funds, there should be an actual appropriation and a
certificate of availability of funds by the treasurer of the
local government unit (Except in the case of a contract for
supplies to be carried in stock)
D. The contract must conform with the formal requisites of
written contracts prescribed by law
Requisites for validity of contracts entered into by local government units:
1. The local government unit must have the power to enter into a
particular contract;
2. there must be a prior authorization by the Sanggunian
concerned, the authorization is posted
3. there must be actual appropriation and certificate of
availability of funds
4. the contract must conform with the formal requisites
Q: What will happen if one of the requisites is lacking? What will be the
effect of the contract?
A:
if absent ang 1 and 3 void, not subject to ratification (Doctrine of
Estoppel will not apply)
if absent ang 2 and 4  voidable, subject to ratification
What I am asking you in the question is about actual appropriation and
certification of availability of funds. The question in the problem was, the
contract is for five years at the rate of 1.5 million per month, question: at
the time that it is covered by the contract, is the LGU required to state in
the certificate of availability of funds that there will be (1.5m x 12 months
x 5 years) 90million.
Contract, kay usa ra baya ang contract unya mo-comply baya ka sa
requirements supposedly one time kay naa na man tong contract so-
icomply nimo ang requisites karon kay karon man nako pirmahan ang
contract. Required ba nga mag certificate of availability of 90 million? That
is an important thing to consider. Or, 1.5million per month multiplied by 12
months every year kay ang meeting raba sa council, yearly man. Anah ba
nah? The answer is per year. So it depends on the contract class. If the
obligation in the contract is to be complied with at one time, or payable one
time lang, the certificate of availability of funds should cover the exact
amount. But if the expense, and therefore the obligation, will accrue over a
long period of time, then the certificate of availability of funds does not
have to cover the entire project amount. Pwede siya as will accrue. So that
is important rule to remember.
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When to make actual appropriation for a contract:
The facts in the Osmeña case are not parallel to the facts in the instant
case. While in the former, the construction of the abattoir entailed the
payment in full of a fixed amount, the case at bar involved a contract
for services still to be rendered which was payable on a monthly basis,
just as in the Imus case. In the latter case, the Supreme Court did
not declare the contract null and void ab initio for the reason
that appropriation for the project can be made subsequent to
the execution of the contract. (Quezon City vs. Lexber, Inc. 2001)
This was the ruling of the court in Quezon City vs. Lexber. When to make
actual appropriation for a contract. Distinguishing old cases Osmena and
Imus cases, the first case, it involved payment in full of its amount. While in
the latter case, it involved services and therefore to be rendered not at one
time and therefore payable on a monthly basis. In the Imus case, it was
not declared void ab initio even if it did not cover the entire amount
because the services were to be rendered over a period of time. So as will
accrue ang ma-cover sa budget.
Alright. Kani, wala pa gyud nuon ni gi-ask since it was promulgated in
2008. Remember this Quisumbing vs. Governor Garcia case? Resolution, or
General Appropriation Ordinance? Resolution ang requirement, correct?
Ohh.
Resolution or General Appropriation Ordinance?
 Quisumbing v. Gov. Garcia (2008):
The fact that the Province of Cebu operated under a reenacted budget in
2004 lent a complexion to this case which the trial court did not apprehend.
Sec. 323 of RA 7160 provides that in case of a reenacted budget, “only
the annual appropriations for salaries and wages of existing
positions, statutory and contractual obligations, and essential
operating expenses authorized in the annual and supplemental
budgets for the preceding year shall be deemed reenacted.
In this case, it was argued that pwede baya ug General Appropriation
Ordinance because, asa man nah kuhaa ang funding, diba sa General
Appropriation Ordinance? And what is required is authorization lang. Prior
authorization by the Sanggunian. Pero wala gi-specify kung unsa nga
authorization. Resolution ba, or ordinance. That is the effect of combination
of American and Civil law legal system. Kay kani man gud nga mga words
like prior authorization, American origin man gud nah. Dili specific ba as to
the form. Unya for example, kanang mga posting requirements on
ordinances or resolutions, sa USA anah class, ang ila rang requirement is
that it shall be posted in a conspicuous place…or in a manner…kanang mga
ingon anah raba. Kita class, sobra ka specific. Ibutang gyud nga posted in
three consecutive weeks…specific gyud ba. In this case, gibutang nga prior
authorization. Wala gyud gibutang kung unsay form. Tan-awa ning Garcia,
naa pay argument nga: Is it not nga ang ordinance, gikan sa Sanggunian?
Ang resolution, gikan sab sa sanggunian. Nganong dili man mu-take the
form of a resolution ang ordinance and consider it as a prior authorization?
Ang problema class is this. The General Appropriation Ordinance usually,
kay general gani, it cannot specify each and every project. And you know,
each and every project shall be covered with a specific contract. So kung
mu-ingon ka ug road widening of Pelaez Street, kana lang street daan, one
contract nah nah. Over-pass in another area, another project na pud nah
siya, then another contract nasad. As a rule, every specific project covered
by a contract, and because it is covered by a contract, it should likewise
carry a specific and definite resolution for that contract. Kay ang imung
resolution specific man. Example is a resolution authorizing the city mayor
45
to sign a contract for the construction of an overpass. So specific siya. Unya
ibutang pud kung kinsa ang contractor. Lain-lain pa gyud gani nah. Pwede
man nga lain ang mu-trabaho sa cement, and lain pud ang sa earthmoving.
Naa man nang mga ingon anah. Daghan ang mga contractors nga involved.
So lain-lain man nah nga contract so separate sad nah nga authorization or
resolution. Mao nga ni-ingon ang SC nga depende. If the general
appropriation ordinance is specific as to the project, which by the way does
not happen kay imagina ninyo nga mu-ingon “15 million for road widening”
pero walay gisulti nga street. Pero bisan ug nag sulti pa ug street, it is not
pa jud specific as to the type of the project. Diba? So you remember this
rule. This has never been asked in the bar.
Should the appropriation ordinance, for instance, already contain
in sufficient detail the project and cost of a capital outlay such that
all that the LCE needs to do after undergoing the requisite public bidding is
to execute the contract, no further authorization is required, the
appropriation ordinance already being sufficient.
But that is more of a theoretical explanation by the court than actual
because lisud man na pangitaon sa general appropriation ordinance nga
specific.
On the other hand, should the appropriation ordinance described the
projects in generic terms such as “infrastructure projects”, “inter-
municipal waterworks, drainage and sewerage, flood control, and irrigation
system projects”, “reclamation projects”, or “roads and bridges”, there is
an obvious need for a covering contract for every specific project
that in turn requires approval by the sanggunian.
Specific sanggunian approval may also be required for the
purchase of goods and services which are neither specified in the
appropriation ordinance nor encompassed within the regular
personal services and maintenance operating expenses.
LIABILITY FOR DAMAGES
For defective public works: ownership is not the rule; only supervision. (Sir
says to check reviewers.)
2011 Bar
A collision occurred involving a passenger jeepney driven by
Leonardo, a cargo truck driven by Joseph, and a dump truck driven by
Lauro but owned by the City of Cebu. Lauro was on his way to get a load of
sand for the repair of road along Fuente Street, Cebu City. As a result of
the collision, 3 passengers of the jeepney died. Their families filed a
complaint for damages against Joseph who in turn filed a third party
complaint against the City of Cebu and Lauro.
Is the City of Cebu liable for the tort committed by its employee?
This copied the case of San Fernando La Union vs. Firme. So are they
liable for damages for torts?
It was for the purpose of loading sand for governmental purpose. So in this
case you distinguish governmental from proprietary. If it is governmental it
is not liable but for proprietary, liable. But under section 24 of the LGC
there is no such distinction.
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Problem
The Sangguniang Panlungsod (SP) of Carcar City ordered the
construction of a wooden stage for a play during its fiesta celebration. The
stage, however, collapsed causing serious physical injuries to the
participants of the play. The participants sued Carcar City and all its SP
members for Damages. May the suit prosper? If yes, who should be held
liable?
Apply the Torio vs. Fontanilla case, fiesta celebration is proprietary, but
who will be held liable? The members of the SP will not be liable because of
the principle of distinct and separate personality.
Since a LGU may be held liable for damages in some instances, we need to
know how to enforce monetary judgment. Our case in course here is the
municipality of Makati vs CA.
Enforcement of Monetary Judgment
1. Levy on the patrimonial properties of the judgment local
government unit;
2. When a municipality fails or refuses, without justifiable reason, to
effect payment of a final money judgment rendered against it,
the claimant may avail of the remedy of mandamus in order
to compel the enactment and approval of the necessary
appropriation ordinance, and the corresponding
disbursement of municipal funds therefore.” (Mun. of Makati
vs. CA)
You cannot go straight to the funds of the LGU because as you know public
funds will be taken from the public treasury only by law for congress and
ordinance for local government officials
2005 Bar
In the May 8, 1995 elections for local officials whose terms were to
commence on June 30, 1995, Ricky filed on March 20, 1995 his certificate
of candidacy for the Office of Governor of Laguna. He won, but his
qualifications as an elected official was questioned. It is admitted that he is
a repatriated Filipino citizen, and resident of the Province of Laguna. To be
qualified for the office to which a local official has been elected, what at the
latest should he be:
(a) A Filipino citizen? Explain.
(b) A resident of the locality? Explain.
For local elective officials, the applicable case is Frivaldo vs. COMELEC
As ruled in Frivaldo the rule of retroactivity on the effects of repatriation. So
if you have been repatriated a year before the filing of the certificate of
candidacy the court in this case that it should be given a retroactive effect.
It should retroact from the day of filing of the application so by the time
you filed for the certificate of candidacy you are considered as a Filipino
and you were elected and voted upon he was already a Filipino.
Section 39 of the LGC qualifications of elective officials and not of
candidates so an official is considered as an elective official upon
proclamation, taking oath and assumption of office. So at that moment ang
required nga mu possess sa citizenship requirement. Because some other
requirement has a specific reckoning point like the second question,
So an “elected” official is considered only an “elected” official upon
proclamation, taking oath and assumption of office. So at that moment siya
46
required mo possess sa citizenship requirement. Only citizen requirement
because some other requirements, naay specific reckoning point. Like the
second question, the residency requirement: it is 1 year on the day of
election not noon of June 30.
Citizenship
- Natural-born or otherwise, including “naturalized” citizen
of the Philippines
Frivaldo Case: The qualifications in the LGC refer to that of
“Elective” Officials (and not of “candidates”), hence, these
qualifications need to be possessed by the official not at the time
he filed his certificate of candidacy but at the time he takes his
oath of office and assumes his post. [2005 Bar Exam]
2008 Bar
On August 8, 2008, the Governor of Bohol died and Vice-Governor
Cesar became the Governor by operation of law. Accordingly, Benito, the
highest ranking member of the Sangguniang Panlalawigan was elevated to
the position of Vice-Governor. By the elevation of Benito to the office of the
Vice-Govenor, a vacancy in the Sangguniang Panglalawigan was created.
How should the vacancy be filled?
It depends whether Benito is a member of a political party. First, you need
to know what are the instances of permanent vacancy (as shown below).
Second, you need to know the formula. Third, you need to know who
caused the last vacancy. (Also what is the meaning of last vacancy in the
sanggunian)

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

2011 Bar Formula for ranking the Sanggunian members:

Alfredo was elected municipal mayor for 3 consecutive terms. During

his third term, the municipality became a city. Alfredo ran for city mayor “Ranking”
during the next immediately succeeding election. Voltaire sought his
disqualification citing the 3 term limit for elective officials. Will Voltaire’s  Formula:
action prosper?
Votes Obtained
______________________________________
(No discussion by Sir. He presumed we know this already) Total Registered Voters in each district
(not votes cast)
(see Sec. 44, Victoria vs. COMELEC)
2011 Bar
Note: A tie between and among the highest ranking sanggunian members
Adela served as mayor of Kasim for 2 consecutive terms. On her shall be resolved by “drawing of lots.”
third term, COMELEC ousted her in an election protest that Gudi, her
opponent, filed against her. Two years later, Gudi faced recall proceedings
and Adela ran in the recall election against him. Adela won and served as Ang kuyaw lang diha ang “in each district” kay instead of votes cast which
Mayor for Gudi’s remaining term. Can Adela run again for Mayor in the next is the usual way of computing like in the case of party-list, it is votes
succeeding election without violating the 3 term limit? obtained over votes cast for the party-list. Kani siya dili votes cast but “total
registered voters in each district”. Technical siya nga requirement.

Vacancies and Successions How do you break the tie between the highest ranking sanggunian
members? DRAWING OF LOTS.
Issues:

1. Meaning of “permanent vacancy”

2. Method of “ranking”
3. Meaning of “last vacancy in the Sanggunian”

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Vacancy
 How to fill up the vacancy?
It depends on the kind of LGU and it depends on whether the one
who “caused the last vacancy” is a member of a political party or
not.
If not a member of political party, the Sanggunian concerned
“recommends” to either the President (Prov, HUC, ICC) or the Governor (CC
& Mun), as the case may be. If a member of political party, the party of the
official who “caused the last vacancy” shall nominate to the President or the
Governor, as the case may be. If in the Barangay Sanggunian, since there
is no political party, the Sanggunian concerned recommends to the Mayor.
(See Sec. 45; Farinas vs. Barba)
It depends on the LGU because mag depende man gud kinsay mo appoint.
Provinces, HUC’s – President
All others – Governor except for Barangay
Barangay – Mayor
By appointment man ang pag fill-up sa vacancy. So for example (refer to
the illustration below), Mayor X died, what is the rule on succession?
Illustration:
Mayor: X (XXX)
Vice-Mayor: Y (PPP)
Councilors:
A (KKK)
B (XXX)
C (PPP)
D (PPP)
E (KKK)
F (Independent)
G (YYY)
H (PPP)
The death of Mayor X results in permanent vacancy. As a result, Y will
become the Mayor. Another vacancy will be created and that is the office of
the Vice-Mayor. So it will now be the highest ranking sanggunian member
who will become Vice-Mayor. So in the case, A will the Vice-Mayor and then
B will now be the highest ranking councilor. Now we need to fill up the
vacancy.
B will come out as the number one councilor, and then si H will be the 7 th
councilor. Now, we will have to fill up the vacancy. Meaning, there shall be
someone who will be appointed to become councilor. Nya ang rule class
kay ingon ani man: that someone should come from the political party if
the one who caused the last vacancy has a political party. Mao na
importante na makibaw ka who caused the last vacancy. Our prospects
would be: Mayor, because had he not died, wala’y vacancy. The Vice-
Mayor, because had he not assumed the post of the Mayor, walay sa’y
succession. The other prospect is A, because he succeeded the post of the
Vice-Mayor. And finally, si H, kay ni-succeed pud siya sa number 7 spot. So
who caused the last vacancy? (Navarro vs. CA)
In this case, it is A who caused the last vacancy. Si Councilor A. Since A is
a member of KKK political party, it is his party that will nominate. The
recording has to be this kind of interpretation is because the purpose of the
rule is to maintain party representation as willed by the people in the
election. As a result nga si A ni succeed sa post sa Vice-Mayor, ang KKK
party would lose a representative in the person of A. So it is but a sound
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interpretation to say nga ang KKK ang maka appoint. Once appointed by
the appointing authority, then i.restore ang party representation in the
Sanggunian.
Navarro vs. CA (2001)
The reason behind the right given to a political party to
nominate a replacement where a permanent vacancy occurs in the
Sanggunian is to maintain the party representation as willed by
the people in the election.
The case of Damasen vs. Tumamao, which can still be considered as a
recent case on the matter, states the requirements as to nomination:
1. Appointee shall come from the same political party who caused the
vacancy.
2. Appointee must have a nomination and a certificate of membership that
he is a bona fide member of the political party, from the highest official of
the political party concerned.
Damasen vs. Tumamao (2010)
Conditions for the rule of succession under Section 45 of the LGC to
apply:
1. The appointee shall come from the same political party as that
of the Sanggunian member who caused the vacancy;
2. The appointee must have a nomination and a Certificate of
Membership (bona fide membership) from the highest
official of the political party concerned.
- So kung provincial chairman lang siya of the party ang ni issue sa
certificate, dili na mao ang gi require sa code. Dapat ang highest-ranking
official of the political party concerned.
Problem
Mayor X of Cebu City went to the United States for one month.
Vice-Mayor Y acted as Mayor in the meantime.
A. What powers may and may not be exercised by Y? Can Y
solemnize marriage?
B. While Y is acting as Mayor of Cebu City, may the SP select elect a
new Presiding Officer?
ANS:
(A)
(1) The powers and functions that the acting local chief executive can
exercise would be all powers and functions. The only powers and functions
that may not be exercised would be the power to appoint, suspend ,
dismiss employees but subject to this exception where temporary incapacity
exceeds thirty (30) days. In which case, pwede na cya ka appoint, pwede
na cya ka dismiss , pwede na cya ka suspend. Otherwise, the public service
will be prejudiced.
(2) Yes, because it does not involve the power to appoint, suspend or
dismiss employees. It was upheld, kay gikiha pa gud og usurpation of
powers ang Vice Mayor in the case of People vs Bustamente, for
solemnizing marriage in his capacity as acting mayor. SC said, dili man na
48
usurpation because an acting mayor can exercise all the powers and
functions of a mayor except only the three powers mentioned earlier.
(B) When that happens, it results also to temporary vacancy in the position
of the presiding officer. So it is not wrong for the Sanggunian to elect an
acting presiding officer. In the case of Gamboa vs Aguirre, kay gusto man
sa Vice Governor nga while nag acting siya as Governor, siya lang japun
ang presiding officer. Sc said no, your acting as Governor creates a
temporary vacancy in the position of the presiding officer. It was correct for
the Sanggunian to elect for an acting presiding officer. (BAR)
Temporary Vacancy, cont’d …
 In case of temporary incapacity, the Vice or the Highest
Ranking Sanggunian member (HRS) shall automatically
exercise the powers and functions of the Local Chief
Executive (LCE)
 All powers and functions of the LCE can by exercised by the
Vice or the HRS, except the power to appoint, suspend, or
dismiss employees, unless the temporary incapacity
exceeds thirty (30) days.
 Hence, in People vs. Bustamante, the Vice Mayor (who
was the Acting Mayor) was held to have the power to
solemnize marriage which is a power belonging to the Mayor
under the LGC.
 A Vice-Governor who acts as Governor effectively
creates a temporary vacancy in the position of
Presiding Officer of the SP, entitling therefore the SP
to select an acting Presiding Officer during the
period that the Vice-Governor acts as Governor.
[Gamboa vs. Aguirre (2009)]
Problem:
Mayor X of Cebu City went to Manila for three days to attend a two-
day seminar.
A. Will Y, the VM, act as Mayor during X’s absence?
B. Who shall perform the powers and functions of the Mayor of
Cebu City during X’s absence and what are the scope and
limitations to such powers and functions?
The Officer in Charge (OIC)
 To be designated by the LCE when he is “travelling within the
country but outside his territorial jurisdiction” for a period not
exceeding three (3) days
 The OIC [Vice or HRS of Brgy] shall perform the powers and
functions as may be delegated to him by the LCE except
the powers to appoint, suspend or dismiss employees.
 If the LCE has not designated an OIC, the Vice or the HRS has
the right to assume the office of the LCE on the 4th day.
Q: What is the distinction between an OIC mayor and an acting mayor?
If the local chief executive is travelling within the Philippines; og abroad,
regardless of days, bisag one day lang – temporary vacancy na cya. Pero
kung within the Philippines lang unya not exceeding three days, wala’y
temporary vacancy. But the mayor will designate an OIC.
A: Ang sa acting mayor, all the powers and function of the local chief
executive except for the 3 exceptions; ang OIC, ang first nimong tan-awon
ang designation kay e-designate man cya, unsa nga powers ang gihatag sa
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local chief executive niya. He shall perform powers and functions as may be
delegated to him.
Ang sa acting, all; ang sa OIC based on the designation letter.
Q: Kung OIC, bisag kinsa ang e-appoint?
A: Dili pud. Una sa list nga e-designate ang Vice-Mayor.
PREVENTIVE SUSPENSION
Naay specific requirements ang Sec. 63 in the imposition of preventive
suspension, this is administrative disciplinary action.
Q: Who can impose preventive suspension during the pendency of an
administrative disciplinary proceeding?
A: Kung administrative case, duha’y options , whether you go to the Office
of the Ombudsman or you go to the proper agency or officer under the
Local Government Code. Unya concurrent na siya, in the sense nga nag file
ka sa Mayor of a highly urbanized city pero ang imong gi-file nga
administrative complaint kay Office of the President which means dili na
pwede ang mo act Ombudsman. Kung gusto ka adto lang ka sa
Ombudsman, may technique man sad ron when to go to the Office of the
Ombudsman or to the Office of the President.
Kung ka political party nimo ang President, you go to the Office of the
President, assuming nga ang respondent kontra partido sad, quick ang
resolution didto.
Kung kontra partido nimo ang President unya ang iyang ka party mate kay
ang respondent, you know, you should not go to the Office of the
President, katulgan na diha. Instead you go to the Ombudsman then.
Preventive Suspension
Authority:
1. President, in the case of HUC and ICC;
2. Governor, in the case of CC and Mun;
3. Mayor, in the case of Barangay.
REQUISITES FOR PREVENTIVE SUSPENSION:
(a) Issues have already been joined;
(b) Evidence of guilt is strong;
(c) Given the gravity of the offense, respondent might influence
witnesses or pose a threat to records/evidence (Sec. 63; Jason
III vs. CA, 2006)
What I would like you to remember is that, may requisite sad diay for
preventive suspension, of course hearing is not a requirement because it is
not a penalty as you know it is just a preventive suspension, unlike labor
law that after giving show cost memo, preventive suspension dayun.
First it is required that Issues have already been joined,, which means that?
What do you mean by issues have already been joined? That presupposes
that.. What is an issue?
An issue is that allegation of the plaintiff or the complainant have been
specifically denied by the defendant or respondent, mao na ang technical
meaning ug ng make ka ug issue ug wla pa na gi deny, wala pay issue,
issues have not been joined yet until and unless allegations are denied,
what does it mean? Kanus.a man d i deny ang allegation? Filing of an
answer or any responsive pleading.
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So what does it tell you? Ang preventive suspension diay ani nga mga cases
sa local government code, after pa diay pg file sa answer, I think this is
important dili na siya nga inig ka receive nimo sa sub poena to file answer
dungan sad ang preventive suspension.
Under sec. 63 and as interpreted by SC in Jason III vs CA , there are three
conditions sine quo-non for the position of preventive suspension, of course
among others EVIDENCE OF GUILT IS STRONG, common mana sa
preventive suspension.
Given the gravity of the offense, respondent might influence witnesses or
pose a threat to records/evidence, kana understandable na man sila nga
mga elements, what will surprise you is the first issues have already been
joined. But caveat in the case of Jason III dili answer ang gi-file it was like
motion for bill of particular and several other motions, according to the SC
dili kinahanglan nga answer ang gi file, any pleading that will tender an
issue, so whatever pleading is filed in response to the sub-poena, but nag
tender ug issue then issues have been joined. Wala pa gi ask sa bar;
pwede pa sud pa within 10 years.
PRINCIPLE OF CONDONATION
What is the principle of condonation?
Actually Aguinaldo doctrine nah, and that was the first case after the
effectivity of the LGC, so pwedi ra tawgun ug Aguinaldo doctrine. But
actually principle of condonation.
The famous (or infamous) “Aguinaldo Doctrine”
 A public official cannot be removed from office for
administrative misconduct committed during a prior term,
since his re-election to the office operates as a condonation of
the officer’s previous misconduct to the extent of cutting off his
right to remove him therefor.
 It applies only to administrative case for misconduct, so the
official may still be held criminally or civilly liable for the
same act. (Cf: “Three-fold Liability Rule”)
Ang issue lang karun class naay expanded understanding or application of
Aguinaldo doctrine not by the SC but kana lng mga chika2 lang bah, ang
principle of condonation historically applies to RE-ELECTION. Meaning, let’s
say you are serving your term 2013–2016 as governor, and during your
incumbency you committed misconduct kay end na mana sa imung 3
consecutive term, ni dagan ka pgka congressman can you be sued for the
misconduct that you committed during the term that you are the governor
at the time that you are a congressman? Matay pangutan.a nang uban diba
mu ana gyud na Aguinaldo doctrine, ang Aguinaldo doctrine is not original
as I’ve said, the original principle is principle of condonation.
Aguinaldo doctrine is not original. The original doctrine is the principle of
condonation. In the US, it is applied in reelection. Here in Phils, we used
the term Aguinaldo doctrine but I think the better term is principle of
condonation. If there is no reelection, I respectfully submit that there is no
application of principle of condonation. What is the difference if there is
any?
- You are elected as local city executive and then you became a
law maker
- Possibly lain lain ni sila ug mga voters. You cannot say for
example (refers to gwen) ang nag reelect ra nya kana ra ang 3rd
district whereas if ni dagan pa siya ug governor, the principle of
condonation would require the entire province. So hain mn na mo
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apply? It is very hard. Maayo lang if province unya isa ra ka
district diba ky dili na mo matter. Kung governor ka the same
constituents pag dagan nimo ug congressman and ni daug ka the
same constituents ky isa raka province isa ra sad ka district pero
if ingon ana na nga dghan ug district imo gyd e.apply ang
principle of condonation? Ang minority nga condonation mo apply
sa majority? Hard to tell. Curious ko na e.clarify na sa court if
ever there will be an issue on that matter.
Three fold liability rule is important principle. Discussed already…
RECALL
Removal of a local government official during his term on the
ground only of loss of trust and confidence and the issue of loss of trust
and confidence is resolved via recall of election.
2011 Bar
Anton was the duly elected Mayor of Tunawi in the local elections of
2004. He got 51% of all the votes cast. Fourteen months later,
Victoria, who also ran for mayor, filed with the Local Election Registrar,
a petition for recall against Anton. The COMELEC approved the petition
and set a date for its signing by other qualified voters in order to
garner at least 25% of the total registered voters or total number of
those who actually voted during the local election in 2005, whichever
is lower. Anton attacked the COMELEC resolution for being invalid. Do
you agree with Anton?
[Transcribers note: I think ang pasabot nya sa 2005 katong barangay
election. (sir is not sure if there had been election in 2005) if there is an
election sa 2004 the only election possible is for the barangay ra jd…]
ANS: It only involves procedure for the recall. There is an amendment in
the recall provision section 70 and 71 Chapter 5 Title 1 Book 1 of the code
had been amended by RA9244. So preparatory recall assembly in the past
is no longer visible. Sauna preparatory assembly man, mao btaw na usahay
mga materials na gamit nnyo and notes still talks about preparatory recall
assembly. However, wala na na siya rn. Sauna 2 modes of inititiating recall
registerd voters and preparatory recall assembly. Wala ng preparatory
recall assembly, only registered voters nlng.
What is the procedure? (provided in the codal RA 9244)
The rule now is to file a petition. That is why dili ni midala ug wido wido.
Not the same as filing petition for people’s initiative. It has its own
procedure provided in the RA 9244.
Basic Procedure
The Recall of any elective provincial, city, municipal or barangay
official shall now be commenced by a petition of a registered voter in
the local government unit concerned and supported by the registered
voters in the local government unit concerned during the election in which
the local official sought to be recalled was elected subject to certain
percentage requirements.
The process will be: first, petition by a registered voter. Isa lang para lang
pag trigger ug process sa petition for recall didto sa Comelec. Under the
new law, it shall be commenced by a petition by a registered voter in the
LGU concerned and then supported by the registered voters in the LGU
concerned during the election in which the local official sought to be
recalled was elected.
Dili pwede nga ang basihan sa registration ang percentage which would be
50
the percentage of voters at the time a petition for recall was filed but at the
time the election was conducted. Basin mag overlap ang registration, what
if nay magconduct nga barangay. It’s possible that there will be different
voters. Basihan sa percentage would be the registered voters in which the
local official sought to be recalled was elected and of course with the
required percentage.
PROHIBITIONS IN RECALL PROCEEDINGS (important)
Prohibitions in Recall Proceedings:
 No resignation during recall process;
 Recall election should only be once during the term of the
official. (note of “election”, not “proceeding”)
 No recall (election) shall take place within one (1) year from
date of official’s assumption to office or one (1) year
immediately preceding a regular election (day of election
and that election affecting the office of the official
concerned).
1. The Local Government officials subject for recall is not allowed to
resign. In fact, automatic candidate siya.
2. In the recall election, it will be conducted only once during the
term of the official.
3. No recall election in the first year and in the last year, so middle
term ra pwede. But what is prohibited is the conduct of the
recall not the election. But pwede ka mag initiate earlier, dili
magkinahanglan nga pag initiate nimo middle gyud. Ang
kinahanglan ana ehold lang kay recall elections shall take place in
the middle term.
PRACTICE OF PROFESSION
Question
Who among the following local elective officials can practice his profession?
A. Mayor X, who is a doctor
B. Vice-Mayor Y, who is an Engineer
C. Councilor Z, who is a lawyer
ANS:
A mayor is absolutely barred to practice his profession during his
incumbency. This includes two: any profession or occupation. That
includes radio announcers. Mayor X, who is a doctor cannot practice his
profession with the exemption of course in emergency situations where the
mayor doctor is not receiving compensation.
Practice of Profession
 All LCE’s cannot practice profession nor engage in any
occupation other than the exercise of their functions as LCE’s.
 SP Member can practice profession or engage in any
occupation except during session hours, with certain
limitations to lawyers on grounds of conflict of interests.
 MDs may practice profession even during officer hours in
case of emergency w/o comp.
Doctors of medicine can practice his profession during emergency situations
but without compensation.
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Sangguniang Panlungson/Panlalawigan: They can practice their profession
or occupation except during session hour. Councilors can practice their
profession/occupation but outside session hour.
PUBLIC INTERNATIONAL LAW
{PRE-MOCK BAR, September 5, 2014}
So first, I don’t know if it will be asked in your [mock] bar but I think it’s
good to begin with the definition of Public International Law kay lisod man
sad ug “What is public international law?” unya muingon ra sad ka ug
“…the law of nations.” Because in the past that really was the name given
to the rule or norm regulating the conduct of States. That’s why in the book
of Hans Kelsen, when it was first used “inter-national law” ang pagka suwat
ana niya indeed governing nations. But as you have already learned, the
modern definition of public international law would no longer focus on
states. The importance of this one is that while this is very elementary,
please do not write state/states in your definition. But instead you write
“international persons”. As you know in the past states were the only
considered subjects of international law, no other. But modern PIL
welcomes other international persons. Even individuals are considered
possessing international legal personality under certain conditions as we will
later on discuss.
Definitions of “Public International Law”
Brierly: “the body of rules and principles of action which are binding upon
civilized states in their relations with one another.”
Hackworth: “it is that branch of public law which regulates the relations of
states and other entities which have been granted an international
personality.”
Section 101, Restatement [Third] of the Law by the American Law Institute
of Foreign Relations Law of the United States: “rules and principles of
general application dealing with the conduct of states and of
international organizations and with their relations inter se, as
well as with some of their relations with persons, whether natural
or juridical.”
But of the many definitions given by authors, the one that is usually used in
defining public international law is that found in the Restatement [Third] of
the Law by the American Law Institute of Foreign Relations Law of the
United States.
That therefore brings me to my next point. The concept of SUBJECT.
“Subjects” of International Law
 Subjects: those that enjoy international legal personality
and being capable of possessing international rights and
duties, including the right to bring international claims.
 Primarily: STATES
 Secondarily: International Organizations (e.g. UN, WTO),
individuals (protected persons of IHL, insurgents and national
liberation movements, minorities), juridical persons (multinational
companies), and NGO’s (e.g. ICRC, Greenpeace, Amnesty Int’l)
 Case: -Reparation for Injuries Case (ICJ Advisory Opinion 1949)
Subjects are those that possess international legal personality capable of
possessing international rights and duties and will have the capacity to
bring international claims. I said already that the states are the primary
subjects of international law but modern international law would include all
51
other. But for some we don’t put in the same level other international
persons with states. But the better approach is that all of these are subjects
of international law. We can refer to states as primary subjects of SOURCES (Formal or Legal) of PIL
international law; and all others if they have international personality as
secondary subjects of international law. I’m talking about international Art. 38 (1), Statute of ICJ:
organizations, like the UN. Primary:
(a) International conventions
In the Reparation for Damage case involving the death of the negotiator of (b) International custom
UN when he was killed in Israel. The UN filed a claim for and in behalf of (c) General principles of law
the Swedish negotiator. We will talk about this in details after mock bar. Subsidiary:
Even individual are considered international persons or rather subjects of (d) Judicial decisions and teachings of most highly qualified publicists
international law. They are also entitled to some protections. And they are
protected by the effects of war under IHL.
We call this as sources of international law, but sources can be viewed as
Even the Philippines adheres to this. Even international financial formal or legal.
organizations are considered international persons. Look at this 2014 case.
(Sir is not sure of the title---landbank of the Philippines case) Loan When we say formal source meaning how the international law came about
Agreement and International Bank for Reconstruction and or how did it exist. When we say legal source meaning where did you get
Development (IBRD), that’s the name of the bank, SC here class said it?
that even IBRD is an international person.
So muingon ka ug this problem should be resolve on the basis of the
Loan Agreement and International Bank for Reconstruction and general principle of good faith. So unsa source ana niya? Is it a source of
Development (IBRD), an Executive Agreement public international law? So if you say source, are you referring to where
the principle had its origin? So the answer would be, general principles of
Loan Agreement No. 4833-PH is in the nature of an executive agreement. law as practice by most civilize nations.
In Bayan Muna vs. Romulo, the Court defined an international agreement
as one concluded between states in written form and governed by So if you say formal or how it came about, usually that is applicable in the
international law, “whether embodied in a single instrument or in two or case of customary international law because they are in fact to be form. So
more related instruments and whatever its particular designation,” and there is a process except to the extent probably according to authors that
further expounded that it may be in the form of either (a) treaties that there can be an instant customary international law.
require legislative concurrence after executive ratification; or (b) executive
agreements that are similar to treaties, except that they do not In the absence of the primary sources, we have judicial decisions and
require legislative concurrence and are usually less formal and teachings of most highly qualified publicists. If you will use the teachings
deal with a narrower range of subject matters than treaties. you must make sure it must be complete. This was applied in 1 case
decided by the Supreme Court. You cannot just make use of opinions of a
supposed authority if he cannot be considered as most highly qualified
The reason SC said that the Philippines should comply with the terms and publicists.
conditions of this executive agreement is because of the principle of pacta
So kung highly qualified publicist lang, it is not an instructive opinion. It
sunt servada. The nature of this executive agreement, even if without the
should be most highly qualified publicists.
concurrence of senate, still it has the character of an international
agreement. So ana ang SC ang international agreement is considered a
treaty and kanang treaty class, by definition, can be entered into by states.
So you know that, technical nana ang treaty. You cannot use treaty if it
International Conventions/Treaties
does not involve states. Although there is a contention that treaty can be
 Whether general or particular and establishing rules expressly
entered into by states and other international persons. But under the
recognized by the contesting States;
definition of Vienna Convention of the Law of the Treaty, a treaty can only
 The term “convention” includes (and actually means) “treaty”
be entered into by states.
 Other terms: agreement, pact, understanding, protocol, charter,
statute, act, covenant, declaration, engagement, arrangement,
So ingun and SC sa case, the IBRD possess an international personality. So
accord, regulation and provision.
that is an affirmation that dli ra jud states ang international persons.
 “Law-making treaties” vs. “contract treaties”
Because you cannot apply the principle of pacta sunt servanda if this
agreement by the Philippine through Landbank is with a non international
person.
INTERNATIONAL CONVENTIONS
Ang gilalisan man gud ani class kung unsa man ang mo govern ang
This includes treaties. So the term international convention is generic and
procurement act sa Philippines or the guidelines set by IBRD for the
there are other terms covered by convention, this includes agreement,
implementation of a project. Ingun ang SC, procurement act set aside sa ka
pact, understanding, protocol and charter.
kay this is an international agreement. So it should be governed by
international law.
These names arise because the manner of creating the conventions vary.
Usually the convention, tawagon na siya ug convention if it is initiated by
(question from student: if FIBA is international organization   --- sir
the UN. Either directly by the general assembly, like the CAT or convention
said: I don’t think that this has something to do with international law kay
against torture. This is a convention of course but directly passed by the
not an organization of states but sports organization only. But im not sure,
general assembly of the UN. It is also possible that the UN will initiate but it
pwede akong tun.an? its sports man gud, nothing political, I don’t know
will be signed somewhere else or it will be agreed upon or formalize
studihan sa nko. )
somewhere else like in Hague or in Geneva but this is initiated by UN that is

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why nagcarry gihapon siya sa name nga convention.
Some authors say, with regard to the law on treaty, that the treaty perceive
in the 1969 Vienna Convention on the law of treaties should only cover law-
making treaties. So kanang gitawag ug contract treaties, meaning not
involving political, governmental, economic and other substantial terms and
conditions but mostly or probably on business dli daw ni govern by the
Vienna convention on the law of treaties. It should be govern by private
international law on contracts. So we have law on private international law
and we should just consider this as an ordinary contract. But this is just
more on a normative approach than explaining on what really is the rule on
the matter.
Now in our case, wala ta nagdeal anang rule making ba or contract
treaties. To simplify we don’t distinguish that. In the US apart from
distinguishing law making and contract treaties nag distinguish pud na sila
ug executing and non-executing treaties but in the Philippines we don’t.
Custom
 Art. 38(1), ICJ Statute: “As evidence of a general practice
accepted as law”;
 Sec. 102, Restatement (Third): “Customary international law
results from a general and consistent practice of states
followed by them from a sense of legal obligation.”
 Two elements:
(a) Objective Element [general practice]
(b) Subjective Element [opinio juris]
Let’s talk about Customary International Law or CIL. This is how it was
worded in the statute:
International custom “as evidence of a general practice accepted as law”.
As base on the definition there are therefore elements. The objective
element, general practice, and the subjective element, opinio juris.
So apart from the ICJ Statute on Customary International Law, we can also
make use of the Restatement of Foreign Relations Law by the United
States. (as above)
Q: How do we know the presence or absence of general practice or the
objective element? The same question applies to the subjective element.
A: The way to understand that is to go back to the cases. The leading case
on this matter is the Paquete Habana case. The US and Spain had war at
that time. Some fishing vessels of Spain were captured by the US armed
forces. These were claimed to be prize of war and therefore, they could
validly take custody of the fishing vessels. There was an argument that you
cannot consider fishing vessels (merchant, commercial vessels) as prize of
war. Only the vessels used during war may be considered prize of war. The
fishing vessels, because these are commercial, cannot be considered
legitimate prize of war. The US did not subscribe to this argument saying
there is no Customary International Law that says that one of the
limitations of a prize of war is when the object has nothing to do with war,
like in the case of fishing vessels for commercial purposes.
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The Paquete Habana Case
175 U.S. 677 (1900)
Facts: Fishing vessels of Spain were captured by US Armed Forces as prize
of war. It was established that the vessels were not aware of the existing
war between Spain and the U.S.
Held: It is customary international law that coast fishing vessels, pursuing
their vocation of catching and bringing in fresh fish, are exempt, with their
cargoes and crews, from capture as prize of war. This the U.S. has also
recognized as law as shown in the various treaties it had entered into in the
past.
Q: how did the xxx xxxx state practice of this norm?
The Supreme Court of the US itself said this is customary international law,
and even the US acknowledged that this is a customary international law.
What were the pieces of evidence constituting state practice in this case? In
other words, the SC looked into whether this was practiced among
members of the family of nations. (see slide below)
By the way, there is no requirement of unanimity. It is not required that all
states practice. All that is needed is “general” practice.
Take note however that Customary International Law also can be regional
or international. So there is such thing as regional customary international
law. Because of the variations in cultures and practices, Regional CIL will
have to arise. The threshold now for Regional Customary International Law
will be higher as compared to International CIL.
The SC said:
Some evidence of “state practice” in Paquete Habana case:
 In 1403 and 1406, Henry IV of England issued orders protecting
fishermen of foreign states;
 1521 Treaty between Emperor Charles V and Francis I of France;
 1536 Dutch edicts (orders) which permitted herring fishing in
time of war;
 During the American war, Louis XVI of France addressed a letter
to his admiral exempting fishermen from capture;
 1785 Treaty between the US and Prussia calling for the
protection of fishermen in time of war;
 184x Treaty between the US and Mexico incorporating the xxx
xxx 1785 US-Prussia Treaty
The above are examples of a general practice of states. Later on, you will
also learn that there is a corollary requirement to the practice of states: the
general practice must be a practice performed by affected states. That is
called “relevant state practice”. The practices of states not involved in
fishing are not (as) relevant. But the states who are heavily involved in
fishing and involved in war, those states’ practice are the relevant state
practice(s).
That is important because we said “general practice”. Unanimity is not
required. What is required is “relevant state practice.”
Another case that illustrated the concept of state practice is Nicaragua vs.
USA.
If you read CIL, this case has an extensive discussion of the topic.
53
Nicaragua vs. USA, ICJ Report (1986)
Facts: Following the overthrow of the right wing government in Nicaragua
in 1979, the US in 1981 ceased economic aid on the ground that the left
wing Sandinista government in Nicaragua had aided the guerillas fighting
against the El Salvador government with which the US enjoyed good
relations. Nicaragua complained of violations of customary international law
when the US used armed force against it and when it provided assistance
to Nicaraguan guerillas (the Contras) who had been fighting to overthrow
the Sandinista government. The US denied ICJ jurisdiction on the basis of a
reservation it made to the jurisdiction of the ICJ in matters that involve
multilateral treaty. Nicaragua argued that customary international law had
xxxxxx xxxxx xxxxnded by the UN Charter.
Nicaragua supported some rebels fighting against El Salvador and El
Salvador was an ally of the US. US attacked Nicaragua. Nicaragua said
there was violation on the part of the US of the CIL prohibiting the use of
force, as well as a violation of the CIL of non-intervention. US said those
are no longer CIL because they were already incorporated in the UN
Charter. The US had a reservation when it comes to application of multi-
lateral treaties. The moment there is a claim to apply a multi-lateral treaty
against the US, the US made a reservation as to its being subjected to the
jurisdiction of the ICJ.
But ICJ said that whether or not codified in the UN Charter – the principle
against the use of force and principle on non-intervention – they did not
lose their character as Customary International Law. Customary
International therefore can co-exist with a treaty or convention.
As we study treaty later on, you will learn there are 2 kinds of treaty in
relation to customary international law. A treaty may be considered
as a clarification or simply a manifestation of what already existing
international law. If you apply Nicaragua vs. US, that should not have the
effect of diminishing the status of the norm as customary international law
if it is codified in a treaty. If that is the case, ang non-party to the treaty,
kng tang-tangon na nimu ang customary international law, dna cya ma
govern sa customary international law, that make sense.
A treaty or convention may (1) just be a manifestation or a clarification of
already existing customary international law or (2) it is an evidence of a
progressive development of new customary international law.
Possible man sd class nga dunay existing customary international law
before, and then the family of nations or states realized, there is need to
adapt to changing circumstances and therefore to develop a new norm, to
replace an old one. How is it done? By putting in a convention or a treaty
that desired norm and that shall be considered as an evidence or a
progressive development of a new customary international law. Therefore a
treaty or a convention can actually override an existing customary
international law, because a treaty or convention can be an evidence of a
new customary international law.
Under the perspective that a treaty can be a progressive development of
international law, the only customary international law that the treaty
cannot of course violatate is a customary international law that has already
achieve a status of a jus cogens norms ( a peremptory norm where
no derogation is allowed). But if ordinary customary law lng, any
convention can replace that. So a treaty can be a progressive development
of a customary international law either expression, manifestation,
clarification or progressive development of customary international law.
So we go back to Nicaragua vs. US, these were the customary international
law norms involved, I wrote here, this was asked in 1994 BAR, I just
couldn’t remember now, how it was asked exactly. I don’t remember if all
of these principles were asked and how it was asked but this slide has
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something to do with that 1994 BAR. So this case of Nicaragua vs. US
involved 4 customary international law:
Nicaragua vs. USA, ICJ Report (1986)
Customary International Law norms involved: [1994 Bar]
 Principle of Non-intervention. [The US trained, armed,
equipped, and financed the Contras]
 Prohibition against violation of Sovereignty of another
State. [The US entered/laid mines in the territorial and internal
waters of Nicaragua]
 Prohibition against use of force against another State.
(Art. 2(4) UN Charter) [The US attacked ground and naval forces
of Nicaragua] (2009 Bar)
 Right to self-defense (Art. 51 UN Charter) requires armed
attack against the invoking State. [That Nicaragua armed
the rebels in El Salvador did not necessarily constitute armed
xxxxxx El Salvador] {2009 Bar}
The Principle of Non-intervention. [it was violated by the US when, the
US trained, armed, equipped, and financed the Contras, the rebels in
Nicaragua. ]
Prohibition against violation of Sovereignty of another State.
[when the US entered/laid mines in the territorial and internal waters of
Nicaragua, didtu sa lawum]
Prohibition against use of force against another State. (Art. 2(4) UN
Charter) [It was observed, the US attacked ground and naval forces of
Nicaragua] (nigawas 2009 Bar, I don’t remember if it was a problem or
probably, it was a problem)
Kining Nicaragus vs. US is an important case to read when it comes to
sources of international law.
Another principle of law, the Right to self-defense (in Art. 51 UN
Charter) requires armed attack against the invoking State.
[requires armed attack against the invoking state. Because the US said,
there was an attack on an ally of the US, El Salvador. And El Salvador and
the US had a treaty of a cooperation and mutual defense and therefore an
attack to an ally is an attack to the US. But ingon ang ICJ, ‘No, if you’re
invoking self – defense, the attack must be directed against you. }
Nicaragua vs. USA, ICJ Report (1986)
Key Principles:
1. General customary international law must be determined by the
general practice of the states and not just by the states party
to the dispute before the ICJ. Opinio juris may be deduced from
the attitude of the Parties concerned and that of states to certain
General Assembly Resolutions.
2. The prohibition on the use of force is jus cogens.
3. Principle of “non-intervention” is customary international law
and, therefore, not affected by treaty stipulation.
4. Customary international law can exist alongside treaties.
The third one is General Principles of Law. Actually ang gihimu nila ani
class, they expected, that some controversies or problems could not be
covered by Customary International Law and Convention. So the way to fill
the gap is to come up with the third source of public international law that
is general principle of Law. And general principles of law are actually
principles of law already practiced domestically. So these are principles of
law practiced domestically but they can be transported at the international
54
level to solve a particular problem.
General Principles of Law
 Recognized by civilized (peace-loving) nations;
 Aimed at providing solutions to controversies where treaty law
or customary law provides no guidance;
 “Law” refers to both “international law” and “municipal
law” (common municipal law)
 Examples: estoppel, good faith, exhaustion of local remedies,
prescription, etc.
 See: -South-West Africa Case (2nd Phase, ICJ Report, 1966;
-Barcelona Traction Case (Belgium vs. Spain, 2nd Phase, ICJ
Report, 1970)
So these are usually practiced by States at the domestic level. Of course,
there may be principles at the international level for those principles that
are not definitely customary international law. Problema lng ky wlay book
nag enumerate jd categorize kng ang principle of international law belongs
to customary international law or just a general principle of law. That is the
reason why in our constitution, we don’t use either customary international
law or general principle of law or simply international law. Unsa atu
gigamit? Generally Accepted Principles of International Law to cover all
possible norms of international law, either customary, general principle or
even convention.
 Naa pa diay question: is there a hierarchy among the sources of
international law?
Naay primary, naay subsidiary, no dispute about it. But among the first
three ba nga primary, mai hierarchy ba ni sila…nga dapat, convention,
customary international law, unya ug wala, general principle of law?
The preparatory works, did not show evidence of treating this hierarchical,
walai hierarchy. Although nag dugay sila ug debate ani class kung dapat
hierarchical ba or dili. They ended up nga ayaw nalang, butangi nalang ug
primary ug secondary because of so many theories against treating the first
three in a hierarchical order. First argument was, dapat mai priority or
authoritative ang treaty or convention over customary international law.
Why? Because there is a theory that kana gud convention or treaty,
evident, visible, tangible, observable ang intent sa parties. So the intent to
be bound by the terms and conditions, express.
Unlike in customary international law that you will rely on inferences and is
in fact open to persistent objector doctrine. A state cannot be bound by
your customary international law if at the outset before the formation of
the customary international law, the state concern had already categorically
manifested an objection to the application of the norm to its territory. If
you say at the outset, meaning to say before it became a customary
international law, consistent ang objection sa state not to be bound by the
norm. Exception of course is jus cogens, applicable to all, no exception.
That is the problem of customary international law. Evidence ba na ang
intent to be bound when we resort to inferences, nganu mo resort man ta
ug inference? State practice requirement, objective element. Subjective
element pa gyud, opinio juris. Mai acts done by that state showing that it
intended to be bound by the norm, in opinio juris there is the
understanding that the law is viewed as obligatory and usually this is found
by acts of our governmental agencies. Tan.awon na sa ICJ, beh kung ang
Philippines naa bai opinio juris on that particular practice, check nato, naay
Supreme Court decisions ba nga nag uphold ani, about sa mga writings sa
executive officials, official pronouncements, verbal or written, statute, kung
naay statute gi pass ana nga customary law, so we believe the obligatory
nature of that norm, so that is evidence na of opinio juris. So all of this will
be taken together just to established whether or not a particular state is
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bound by the norm.
On the other hand, we cannot make treaty or convention as more
persuasive or authoritative over customary international law because treaty
and conventions are valid and binding in so far as the parties to the treaties
or conventions are concerned whereas kuno ang customary international
law naa na ang objective element of general state practice. Tinuod man ky
convention or treaty is international law only in so far as the parties are
concerned, that we are talking of a treaty or convention that is not a
customary international law at the same time. Ug mo ingon ka, what is the
source of international law, mot bag ka treaty or convention, that is true
only in so far as the parties are concerned. So between state A and state B,
ni execute sila ug treaty, that treaty is international law between state A
and state B. So ang iyang scope therefore is not that all-encompassing
compared to customary international law nga mo require ug general state
practice.
Tungod sa debate class nga wa sila mgka uyon, they decided nga wa
nalang ang hierarchy. All of them shall be considered as primary with no
specific source of law as having more persuasive effect than the others
except to the extent the customary international law may be jus cogens.
Art. 38 (2), ICJ Statute
(Ex aequo et bono)
Ex aequo et bono: a decision in which equity overrides all other rules
Art. 38(2), ICJ Statute:
The list of sources in Art. 38(1) “shall not prejudice the power of the
Court to decide a case ex aequo et bono, if the parties agree thereto”
The list of sources in 38 (1) kadtong gi discuss ka ganiha shall not prejudice
however the ICJ to decide a case on the basis of other rules such as equity,
not on the basis of international law but simply on the rule of equity or that
probably the parties agreed that instead of applying the treaty between
them, mangita nalang sila ug laing norm if all the parties agreed that
should be the case. So, it’s possible therefore to disregard specific rules
applicable to parties to a case in ICJ if they agree and the ICJ will be
allowed to apply rules of equity other than the rules found in the treaty.
What’s the difference between a custom and a usage? Bar exam question
also.
Custom vs. Usage
Custom is a practice that states believe themselves to be under a legal
obligation to follow (opinio juris) [ex. State immunity]
Usage is a practice that states generally follow without believing
themselves legally bound to do so. [ex. alternat]
Of course custom, customary international law. Elements of state practice
and opinio juris are present but where a practice has not yet attained the
status of customary international law but it is a state practice just the same
or even probably general state practice but usually what’s lacking is opinio
juris, so the objective element of general state practice is present but the
subjective element of opinion juris is absent, usually we call it mere usage,
not customary international law.
Typical example of customary international law is the Principle of State
Immunity.
A good example of usage is alternat. Practiced generally in diplomatic
55
relationship but there is no perception of it as binding or obligatory. This is
just a manifestation of the co-equality idea of states. When you sign a
treaty, for example there are 50 states to a multi-lateral treaty or
convention, how do you put the names? Alphabetical? So, in the
convention, mag-una og pirma Afghanistan nya uwahi ang Zimbabwe?
It looks like it suggests that since Afghanistan is first in the list, it would
seem that it is superior than other states, so the way to solve that problem
is that all the parties will bring with them a copy of the convention back
home because usually it is not the Head of State who signs or even if it is
the head of state who signs, when they return to their home state, there is
still a constitutional process of concurrence, like the Philippines and the
United States. How much more if it is not the Head of State who signs but
only the authorized representative like the Secretary of the Department of
Foreign Affairs, what should be done next here in the Philippines? There
should be ratification by the President. It became a practice in order to
make sure that this is really what was agreed upon and that the authority
to sign is within the scope of authority given, so the President will look into
that. So it may happen that it is signed by the representative but if not
ratified, you have nothing to submit to the Senate for concurrence, it has to
be ratified first by the President.
So, don’t use the term ratification by the Senate, that’s wrong. The correct
term should be concurrence by the Senate; ratification by the President in a
situation where it is signed by a representative.
So in alternat, what happens is that the copy brought by the representative
which will be ratified by the President, the first to sign is his state. So, the
copy brought back to the Philippines by the representative, which is ratified
by the President, the ‘#1’ who signs in that copy is the Philippines. In the
same manner that the copy brought to US by their representative, the #1
who signs in that copy is also US. So, there is co-equality among states.
There is no superiority or inferiority in paper. That’s the idea of alternat.
After which, it will be deposited with the Secretary-General of the UN,
because if not, the parties who did not deposit the treaty cannot invoke the
provisions of the treaty to resolve the conflict.
Alternat is just a usage, not a custom.
Philippine Practice on Sources of International Law
Sec. 2, Art. 11 (1987 Constitution):
“The Philippines renounces war as an instrument of national
policy, adopts the generally accepted principle of international law as part
of the law of the land and adheres to the policy of peace, equality, justice,
freedom, cooperation, and amity with all nations.”
Sec. 2 Art. II we call this the Incorporation Clause but remember that does
not mean that the Philippines is not adopting Transformation. In fact, we
both adopt transformation and incorporation.
We adopt incorporation clause for Generally Accepted Principles of
International Law (GAPIL). We adopt transformation through the backdoor
system through the execution of treaties because treaties are sources of
international law. GAPIL, automatically incorporated through incorporation
clause but treaties, assuming that they do not represent Customary
Internationnal Law (CIL), treaties that govern the Philippines and the other
signatory to that treaty, the provisions of that become part of the law of
the land the moment it is concurred by the Senate. That is transformation.
Ocampo vs. Abando Feb. 11, 2014
Members of the CPP-NPA NDF were prosecuted for murder because they
have this Purging System wherein members and non-members alike who
are military informants were salvaged. A mass grave was found and
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somebody testified that it was where the CPP-NPA would bury the bodies of
those who were salvaged. The relatives testified that the persons who
disappeared were abducted by members of the NPA prior to their
disappearance. Satur Ocampo was charged along with 40 or 50 others.
Their defense was that they cannot be charged of murder because of the
Political Offense Doctrine (POD) which absorbs any common crime (murder
in this case) committed in the pursuit of a political crime like rebellion thus
the proper charge would only be rebellion.
SC: The fiscal has no duty to follow the Political Offense Doctrine - that the
crime to be charged must be rebellion. So at the level of the prosecutor,
during the preliminary investigation, the issue on WON POD will apply will
not yet be settled because it will require evidentiary facts and would
consequently require a hearing. The proper course of action on the part of
the fiscal is to charge them with murder and the defense of POD will only
be raised during the trial.
Sometime in 1995 or 1998, the CPP-NPA made a statement that in the
Philippines it will abide by the Common Article III of the 4 Geneva
Conventions. This article is applicable to non-international armed conflicts
and embodied therein are the prohibitions agianst torture and the non-
derogable right to life.
Associate Justice Leonen:
The Philippines is bound to punish the perpetrators if it will be proven that
this is a violation of International Humanitarian Law (IHL). It is not a sound
policy to immediately, at the level of the prosecutor, apply the POD
because of the duty of the Philippines to enforce IHL.
The Philippines is bound to enforce International Humanitarian
Law (IHL)
IHL and the rules and principles contained in the Geneva
Conventions are largely regarded in the international sphere as having the
character of general or customary international law given the fundamental
nature of the rules and “because they constitute intransgressible principles
of international customary law.”
In the Philippines, Republic Act No. 9851 was enacted in view of its
policy to “[renounce] war …, [adopt] the generally accepted principles of
international law as part of the law of the land and [adhere] to a policy of
peace, equality, justice, freedom, cooperation and amity with all nations.”
{September 6, 2014}
The case of Land Bank of the Philippines vs Atlanta Industries, July 2,
2014; this is one case that you have to read very quickly before mock bar
in relation to a case decided by the Court 2 years earlier, China National
Machinery and Equipment Corporation vs. Santamaria, February 7, 2012.
Now why is this important? Two years earlier in this case of China National
Machinery and Equipment Corporation, the Supreme Court distinguished
between executive agreement and treaty. But after making a distinction, of
course the distinction being that in the case of executive agreement as you
already know, it (a) does not require legislative concurrence; (b) is usually
less formal; and (c) it is narrower in scope compared to a treaty. And of
course a treaty is more or less permanent compared to an executive
agreement.
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Executive Agreement vs. Treaty
An executive agreement is similar to a treaty, except that the former (a)
does not require legislative concurrence; (b) is usually less formal;
and (c) deals with a narrower range of subject matters.
Depsite these differences, to be considered an executive agreement, the
following three requisites provided under the Vienna Convention must
nevertheless concure: (a) the agreement must be between states;
(b) it must be written; and (c) it must be governed by
international law
[China National Machinery & Equipment Corp. v. Santamaria, G.R. No.
185572, February 07, 2012]
But after making that distinction, the Supreme Court enumerated 3
elements for an executive agreement to exist. These elements are: (1) that
the executive agreement must be between states, (2) it must be written,
(3) it must be governed by international law. In doing so, it would seem
that the Supreme Court likened the executive agreement to a treaty. Ang
distinction lang therefore is domestic. Whether or not we require legislative
concurrence. In other words at the international level, whether it is
executive agreement, international agreement, treaty, convention or
whatever, the nomenclature as you have learned already does not govern
for as long as the elements are present entered into by states in written
form and to be governed by international law the we say that that is a
document that will be governed by the Vienna Convention of the Law of
Treaties or VCLT. And our SC acknowledged that in this case of China
National Machinery & Equipment Corp vs Santamaria.
So there you go the statement of the court. An executive agreement is
similar to treaty and the distinction basically is at the domestic level
because we distinguish executive agreement and a treaty in our
Constitution insofar as the requirement of concurrence by the Senate is
concerned. So that’s the only difference apart from probably nature.
Because if you look at the definition of a treaty under the Vienna
Convention on the Law of Treaties (VCLT) -
But, China National Machinery & Equipment Corp. (CNMEG) is not
an international person
Article 2(1) of the Vienna Convention on the Law of Treaties (Vienna
Convention) defines a treaty follows:
[A]n international agreement concluded between States in written form and
governed by international law, whether embodied in a single instrument or
in two or more related instruments and whatever its particular designation.
So what I’m saying is at the international level, we treat all these
international agreements similarly, but we treat these documents differently
at the local level.
But what confused me is the pronouncement of the court in this Land Bank
of the Phil. v. Atlanta Industries, Inc. because here the parties involved are
not states. One of course is the Republic of the Philippines but the other
one is an international multinational corporation, lending institution rather,
although organized by World governments. And this was the thing that we
discussed yesterday that it was again likened to a treaty only because IBRD
was considered as possessing international personality and the effect of the
characterization is that your basin principle of pacta sunt servanda was
applied here in this case.
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Examining its features, Loan Agreement No. 4833-PH between the IBRD
and the Land Bank is an integral component of the Guarantee Agreement
executed by the Government of the Philippines as a subject of
international law possessed of a treaty-making capacity, and the IBRD,
which, as an international lending institution organized by world
governments to provide loans conditioned upon the guarantee of
repayment by the borrowing sovereign state, is likewise regarded a subject
of international law and possessed of the capacity to enter into executive
agreement with sovereign states. (Land Bank of the Phil. v. Atlanta
Industries, Inc., G.R. No. 193796, July 02, 2014)
Another update is the case of Biraogo v. Del Rosario. As you know Foreign
Affairs is a prerogative of the Executive Department. And this prerogative
being discretionary cannot be compelled by mandamus. Here Biraogo
etitioned the Court asking the Secretary of Department of Foreign Affairs be
compelled to pursue our claim over Sabah. Supreme Court said its not
subject of mandamus because it is not ministerial duty. The submission to
the ICJ of the Philippine claim over Sabah involves conduct of our foreigh
relations. This is primarily an executive prerogative and therefore
mandamus will not apply.
The Executive Department cannot be compelled to make
international claim
The Secretary of Foreign Affairs cannot be compelled by mandamus
to press the Philippine claim to North Borneo (Sabah) before the ICJ or
such other fora authorized under international law. The submission to the
ICJ of the Philippine claim over Sabah involves the conduct of our foreign
relations. This is primarily an executive prerogative, and the courts may not
inquire into the wisdom or lack of it in the exercise thereof. [Biraogo v. Del
Rosario, G.R. No. 206323, April 1x, 2013]
The case of Navia vs. Pardico involving Writ of Amparo, SC discussed the
concept of Writ of Amparo and the elements. SC traced the history of our
Writ of Amparo that it was basically taken from the International
Convention for the Protection of All persons from enforced disappearance.
And the definition of enforced disappearance as it appears in this
convention:
Philippine Writ of Amparo on Enforced Disappearance is based on
international law
International Convention for the Protection of All Persons from Enforced
Disappearance’s definition of enforced disappearances: “the arrest,
detention, abduction or any other form of deprivation of liberty by agents
of the State or by persons or groups of persons acting with the
authorization, support or acquiescence of the State, followed by a refusal to
acknowledge the deprivation of liberty or by concealment of the fate or
whereabouts of the disappeared person, which place such a person outside
the protection of the law (Navia vs. Pardico, G.R. No. 184467, June 19,
2012)
And when the SC enumerated the elements of the Writ of Amparo, it
invoked the definition. The Writ of Amparo has also its international law
origin. In this case the SC said it is not sufficient to allege mere
disappearance. There should likewise be an allegation of the participation
by the state either by the authorizing, supporting or with acquiescence the
disappearance of a particular person.
And of course our older cases, applying international law include Kuroda v.
Jaladoni where the Philippines created military commission to prosecute
57
certain military officers for war crimes during the WWII. The authority of
the military commission was questioned as without authority and basis
because the Philippines. Was not a signatory to the Hague Convention. It
was at that time the Hague Convention as the international document that
recognized and defined war crimes. But as you know, the ruling of the SC is
since punishment of war crimes is erga omnes, meaning duty towards
international community, and war crimes as a crime internationally is also
jus cogens. So you know these terms erga omnes and jus cogens. So
regardless of the fact that we were not a signatory of The Hague
Convention, since The Hague Convention is a manifestation of a customary
international law there was no objection to the creation of a military
commission.
Kuroda vs. Jalandoni (83 Phil. 171)
In accordance with the generally accepted principles of international
law of the present , including the Hague Convention, the Geneva
Convention and significant precedents of international jurisprudence
established by the United Nations, all those persons, military or civilian,
who have been guilty of planning, preparing, or waging a war of aggression
and of the commission of crimes and offenses consequential and incidental
thereto, in violation of the laws and customs of war, of humanity and
civilization are held accountable therefor. In the promulgation and
enforcement of Execution Order No. 68, the President of the Philippines has
acted in conformity with the generally accepted principles and policies of
international law which are part of the our Constitution.
The rules and regulations of the Hague and Geneva
conventions form part of and are wholly based on the generally
accepted principals of international law. In fact, these rules and
principles were accepted by the two belligerent nations, the United State
and Japan, who were signatories to the two Conventions. Such rules and
principles, therefore, form part of the law of our nation even if the
Philippines was not a signatory to the conventions embodying them, for our
Constitution has been deliberately general and extensive in its scope and is
not confined to the recognition of rules and principle of international law as
contained in treaties to which our government may have been or shall be a
signatory.
Now, we have the International Criminal Court, in the case of USA v.
Guinto, this is the case of your Doctrine of Restrictive Immunity. You
distinguish Doctrine of Restrictive Immunity from your state immunity from
suit. Your Doctrine of State Immunity provides that states are not always
liable to all the consequences of their acts and we only make them liable
for acts that are proprietary. But for acts that are governmental then a
foreign state can invoke state immunity. So even contracts in international
law, you have to distinguish between jus imperii and jus gestionis. Note
that the principle of state immunity is customary international law. Know
that the doctrine of state immunity is either an international concept or a
domestic concept. It is an international law concept if the situation calls for
the exercise of jurisdiction by a local court against a foreign state.
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U.S.A. vs. Guinto (182 SCRA 645)
The rule that a state may not be sued without its consent, now expressed
in Article XVI, Section 3, of the 1987 Constitution, is one of the generally
accepted principles of international law that we have adopted as part of the
law of our land under Article II, Section 2. Even without such affirmation,
we would still be bound by the generally accepted principles of international
law under the doctrine of incorporation. Under this doctrine, as accepted by
the majority of states, such principles are deemed incorporated in the law
of every civilized state as a condition and consequence of its membership in
the society of nations. Upon its admission to such society, the state is
automatically obligated to comply with these principles in its relations with
other states.
In the case of the foreign state sought to be impleaded in the local
jurisdiction, the added inhibition is expressed in the maxim par in
parem, non habet imperium. All states are sovereign equals and cannot
assert jurisdiction over one another. A contrary disposition would, in the
language of a celebrated case, "unduly vex the peace of nations.”
So if X, a citizen of the Philippines, sues the USA in the Cebu City Court,
that calls for the application of state immunity from suit in international
law. In which case we follow the Restrictive Theory of State Immunity from
Suit. We distinguish between jus imperii and jus gestionis So even if
contracts are involved in the case, if the contract is carried out in its
governmental capacity, in the USA in this example, Cebu City court will not
exercise jurisdiction.
Jus imperii vs. Jus gestionis: There is no question that the
United States of America, like any other state, will be deemed to have
impliedly waived its non-suability if it has entered into a contract in its
proprietary or private capacity. It is only when the contract involves
its sovereign or governmental capacity that no such waiver may
be implied. This was our ruling in United States of America v. Ruiz, where
the transaction in question dealt with the improvement of the wharves in
the naval installation at Subic Bay. As this was a clearly governmental
function, we held that the contract did not operate to divest the United
States of its sovereign immunity from suit
Invocation of state immunity from suit will have to prosper if it is
governmental. But state immunity from suit in the domestic level is
different because in the Philippines we allow suit against the state on the
basis of contracts. Our relevant law is Act No. 3083. So what I am saying is
state immunity from suit is both an international law concept and a
domestic concept. That in the international law level, we apply the Doctrine
of Restrictive Theory, at the domestic level, for contracts the Philippines
government has already consented to be sued under Act No. 3083. Let me
show you the provision. So this is Act No. 3083 and it says:
Caveat:
Act No. 3083: Subject to the provisions of this of this Act, the Government
of the Philippine Islands hereby consents, and submits to be sued upon any
moneyed claim involving liability arising from contract, expressed or
implied, which could serve as basis of civil action between private parties.
C.A. No. 327 and PD 1445: File claim with COA, if denied, go to SC on
Certiorari.
So this is the basis for the precept that when the government enters into a
contract, we have to specify. So if the Philippine government enters into a
contract, then it has descended to the level of individual when it said “as
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basis of civil action between private parties.”
Now how to effect the claim. CA 327 provides for the period of 2 months on
the part of the Commission on Audit (COA) to decide whether to accept or
reject a claim on the basis of a contract against the Philippine government.
PD 1445 is an amendment to the CA 327 such that where the claim is
rejected, the claimant can go to the SC on certiorari after that claim before
COA, in CA 327 it was called Auditor General, in PD 1445 it is now the
Commission of Audit. So, just please take note of that.
INTERNATIONAL LAW & MUNICIPAL LAW
International Law and Municipal Law
 Which law prevails in case of conflict?
- Theories: Monism & Dualism
 How do rules of international law take effect in domestic legal
system?
- Theories: Incorporation & Transformation
(Strong and Weak)
 What is the status of PIL in Philippine Legal System?
- GAPIL
- TBPIL
In case of conflict between an International Law and Municipal Law which
law prevails?
This could be answered by applying the theory of Monism or Dualism.
Under the theory of Monism, there is only one legal system in
this world and that is natural law which means that if there is a conflict
between International Law (“IL”) and Municipal Law (“ML”) then
International Law prevails since International law is perceived under this
theory as reflective of Universal Law on the basis of natural law. (Basically,
this is influenced by the teachings of natural law theorist Hans Kelsen
himself. international law is perceived by Hans Kelsen as reflective of
universal law, the basis of natural law, then international law prevails.
International law prevails for a monist.)
Under the theory of Dualism, there are two sets of legal systems
in the world. One is IL and the other is ML and there is no necessary
connection between the two. So, if there is a conflict you cannot say that IL
prevails over ML or vice versa. IL or ML will prevail depending on the forum
deciding the case. If the forum is in the international field it is expected
that international law will prevail. On the other hand, if the controversy is
presented before a municipal forum ML will prevail. But this is not an
absolute rule because even a domestic court may uphold international law.
It is just a matter of expectation. There is no duty on the part of any
domestic court to be domestic also on its approach.
How do rules of international law take effect in domestic legal system?
By incorporation which is influenced by monism, principles of IL
become part of the law of the land automatically. The Philippines adopts
this doctrine as can be gleaned from Section 2, Art. II of the Constitution.
By Transformation which is a process by which IL becomes part
of domestic law by an affirmative act of the government either at the level
of the legislature (passage of a law), executive (conscious application by
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the executive department of IL) or judiciary (SC applying IL principles in a
particular controversy). There are two kinds of transformations. One is
Strong transformation while the other is Weak transformation. The former
is restrictive while the latter is not. The former requires a process
that IL becomes part of the law of the land only by Congressional Act.
While the latter allows transformation of IL law into domestic law by a
governmental act other than Congressional Act thus it is weak.
In the Philippines, we can say that we can transform IL on the
basis of either congressional, executive or even Supreme Court decisions.
So that is weak transformation. In England it is strong transformation.
What is the status of PIL in Philippine Legal System?
Insofar as GAPIL is concerned, we adopt the doctrine of incorporation.
As to treaty based public international law we apply the doctrine
of transformation. This is done by a treaty being concurred in by the
Senate. Thus, it is a process through Congressional act. In our jurisdiction,
treaty has the same effect of a Statute. Consequently, we apply our rules
on statutory construction in case of conflict between a treaty and a statute.
However, our domestic statutes will prevail over a treaty when our statutes
are reflective of police power and other statutes manifesting public policy.
Determination of Statehood Scenarios
 Break-up of a large state into several states (e.g. USSR,
former Yugoslavia, and Czechoslovakia in 1990’s)
 Secession by part of a territory (e.g. Kosovo’s declaration of
independence from Serbia in 2008)
 Foreign control is exercised over affairs of a state (e.g.
US’s control over the island of Palau in the Pacific ocean before
1994)
 Merger or union of states (e.g. Egypt and Syria merged in
1958 to form the United Arab Republic [Syria the seceded from
the UAR in 1961 and Egypt renamed itself Egypt])
 Claims by constituent units or a union or federation to
the attributes of statehood (e.g. separatist claims in Quebec)
 Territorial or non-territorial communities which have
special international status (e.g. Palestine’s “non-member
observer state” of UN status in 2012)
What happened in the conflict of Russia and Ukraine involving Crimea? It
involves the situation of statehood. What happened in Crimea was that
there was a referendum and the result was more than 90% which favored
the separation of Crimea from Ukraine. It could probably involve the issue
of cessation. Now, is there such a right to secede?
The problem of “Secession” vis-à-vis the right of states to
Territorial Integrity
 Opinion of the SC of Canada in re: Secession of Quebec
[1998]:
- Secession is not authorized by the Constitution of Canada;
- International law does not specifically authorize nor prohibit
unilateral secession;
- But, states have the implied duty to recognize people’s “right to
self-determination”’
- Right to self-determination must be exercised within the
framework of sovereign states and consistent with territorial
integrity of those states (“right to internal self-determination”)
and “right to external self-determination” (unilateral secession).
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Is there such a right to secede? If yes, under what condition? Can
secession be done unilaterally? It’s a continuing issue in international law.
But we have a Supreme Court decision, not an international court decision,
that’s considered by many authorities as instructive on the issue of
unilateral secession. And I’m talking about the decision of the Supreme
Court of Canada on the issue of Quebec. Quebec exercised unilateral
secession, the SC of Canada made an instructive outline as to when
unilateral secession may be made.
The problem with unilateral secession is this: It seems like there is a
conflict between the right to secede, and the right of the state to its
territorial integrity. So the better formula according to SC of Canada, the
rule is territorial integrity. A group of person may only separate if it is one
via constitutional proceess. That’s the general rule. So if one group wants
to separate from the rest of the territory, it has to be done constitutionally.
Second rule: where that group, however, exercises right to self-
determination, which right is recognized as customary international law,
then we ask 2 questions:
Has that right been recognized and addressed by the national government?
If the answer is yes, that it had been addressed therefore the group has
not been denied by its right to self-determination, like what we’ve been
doing with our Muslim brothers in Mindanao and anywhere else where we
allow them to have their own personal laws. We separate our theory on
criminalization on polygamy and many other practices. So we recognize this
right to self-determination. But where there is a valid exercise of self-
determination but rejected or denied by the national government, then this
is where the group may unilaterally secede because such unilateral
secession can be justified by the exercise of the right to self-determination.
That’s how the case of Crimea should be resolved. We call it the right to
external self-determination.
When right to “self-determination” may be exercised
SC of Canada:
The international law right to self-determination only generates, at
best, a right to external self-determination in situations of former colonies;
where a people is oppressed, as for example under foreign military
occupation; or where a definable group is denied meaningful access to
government to pursue their political, economic, social, and cultural
development (meaning, where the people have been denied the right to
internal self-determination)
Peoples’ “Right to Self-determination”
 A customary international law; a jus cogens and erga omnes
norm;
 Set out in Art. 1(2) and Art. 55 of the UN Charter, Art. 2 of G.A.
Resolution entitled Declaration on the Granting of Independence
(1960) [“All peoples have the right to self-determination;
by virtue of that right they freely determine their political
status and freely pursue their economic, social, and
cultural development’]; in ICCPR and ICESCR, and in 1970
Declaration of Friendly Relations of the G.A.
 Article 1(4) of Protocol I of the 1949 Geneva Conventions make
the laws of international armed conflict applicable to “armed
conflicts in which peoples are fighting against colonial
domination and alien occupation and against racist regimes
in the exercise of the right of self-determination.”
 Any group within a territory claiming to be fighting against
colonial domination, alien occupation or a racist regime
(national liberation movement) is now protected by the laws
of war, and that its members are entitled to prisoner-of-war
status.
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Basicallly murag diha ra na nga situations makaingon ka there is, actually
we call it national liberation movement. Because national liberation
movements are considered movements exercising the right to self-
determination, and the way such national liberation movement is defined to
trigger international armed conflict, the Geneva Convention focused on 3
areas where the right to self-determination maybe validly exercised. Where
there is no colonial domination, alien occupation and racist regime, any
armed group that would try to liberate itself may be treated as criminals
and not as national liberation movement.
Recognition of State
-Theories on Legal Effects of Recognition of State in International Law:
(1) Constitutive
(2) Declaratory
-Article 3 of Montevideo Convention acknowledges “Declaratory Theory”, to
wit: “The political existence of the State is independent of recognition by
the other States. Even before recognition, the State has the right to defend
its integrity and independence….”
Let me proceed to jurisdiction. As you know, jurisdiction is the clear
manifestation of sovereignty. That’s why each time sovereignty is
discussed, there is also a need to discuss jurisdiction because states
exercise sovereignty by exercising jurisdiction. In international law,
jurisdiction may be classified as: jurisdiction to prescribe law, jurisdiction to
adjudicate, and jurisdiction to enforce.
JURISDICTION
 Jurisdiction to prescribe law (the authority of the state to
make its policy applicable to persons or activities) (See:
Restatement 402, except for universal jurisdiction, which is in
Restatement 404)
 Jurisdiction to adjudicate (authority of the state to subject
particular persons or things to its courts)
 Jurisdiction to enforce (concerned with the authority of a
state to use the resources of government to induce or compel
compliance with its law; includes authority to arrest.
a. Jurisdiction to prescribe law- Congressional, enactment of
statute whether it becomes applicable within or without. i.e.
Art 2 of the RPC on extraterritorial application of Penal Laws
b. Jurisdiction to adjudicate- Judicial
c. Jurisdiction to enforce- Executive
The issues usually emerge when it comes to Criminal Jurisdiction.
There are four theories that will justify the acquisition of jurisdiction over
the person of the accused.
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Criminal Jurisdiction
Various Principles/Theories:
Territorial Principle (Subjective vs. Objective)
Nationality Principle (Active vs. Passive)
Protective Principle
Universality Principle
Of the four theories, more acceptable is are the Territorial
Principle and Universality Principle, which means courts all over the world
are not unanimous they way Nationality Principle and Protective Principle
are applied. That would therefore depend on the kind of State involved. In
the case of the United States of America, the US Courts usually have more
leeway and more aggressive application of all of these principles.
Territorial Jurisdiction
-State has jurisdiction over property, persons, acts or events occurring
within its territory.
 Subjective Territorial Principle: jurisdiction to prosecute or
punish crimes commenced within their territory but completed or
consummated in the territory of another state.
 Objective Territorial Principle: certain states apply their
territorial jurisdiction to offenses or acts commenced in another
state, but (i) consummated or completed within their territory, or
(ii) producing gravely harmful consequences to the social or
economic order inside their territory.
Under the Subjective Territorial Principle, an example is if X from
State A, using a long ranged riffle killed Y in State B, which has the proper
jurisdiction of the crime?
From the given example, the crime commenced in State A and
the Court therein has the option to exercise jurisdiction or not depending
on which principle it will apply. If it chooses to exercise jurisdiction over the
said crime, it should then choose to apply the Subjective Territorial
Principle, wherein the jurisdiction to prosecute or punish crimes
commenced in State A but completed or consummated in another state or
in State B. However, if it chooses not to exercise jurisdiction over the said
crime, it should then choose to apply the Objective Territorial Principle,
wherein State B where the crime was consummated or completed
acquires the jurisdiction although the offense commenced in State A.
United States vs. Vasquez-Velasco (1972)
Facts:
Javier Vasquez-Velasco, a member of a drug cartel in
Guadalajara, Mexico and several other members, beat and killed (John)
Walker [an American citizen writing a novel in Mexico] and (Alberto)
Radelat [a photographer and US legal resident]. At trial, the US argued that
Velasquez-Velasco and his three co-defendants committed the crimes to
further their positions in a Guadalajara drug cartel. The murders Velasco
was charged with were allegedly retaliatory actions against a US Drug
Enforcement Agency (DEA) crackdown. He was convicted under US law. On
appeal, Vasquez-Velasco argued that US penal laws do not apply
extraterritorially.
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Nationality Principle in Jurisdiction
 Active Nationality
- states may regulate the conduct of their nationals wherever they
are in the world
 Passive Nationality
- a state may prescribe law for situations where its nationals are a
victim of the conduct being regulated
- this has limited scope, usually applicable to terrorist attacks
Active Nationality- Offender/ Actor
Passive Nationality- Victim
But of course, Nationality Principle is not equivalent to assessing
citizenship, so mere citizenship is not equivalent to nationality when it
comes to nationality principle. Remember the case of Nottebohm where the
real and effective link with the State of Nationality is necessary.
Nottebohm Case
(Liechtenstein vs. Guatemala, ICJ, 1955)
Key Principle:
Nationality as a basis for exercising jurisdiction must be
real and effective to give a right to a state who has conferred it.
Real and effective link with the state of nationality necessary.
Right to diplomatic protection and protection by means of
international judicial proceedings only arises when proper
nationality link exists between the individual concerned and the
state seeking to exercise such rights. [“Effective Nationality
Theory”]
THE FACT THAT A PERSON IS A CITIZEN OF A STATE DOES NOT
AUTOMATICALLY TRIGER THE APPLICATION OF NATIONALITY PRINCIPLE
BECAUSE IN PUBLIC INTERNATIONAL LAW, THERE MUST BE A REAL AND
EFFECTIVE LINK IN THE SUPPOSED NATIONAL AND THE STATE.
In Passive Nationality, it has been perceived to have limited scope and
usually applicable in terrorist attacks. For the 1998 bombings of the US
Embassy in Kenya. Kinsa ma’y victims? Passive man? Americans. So that
was justified by the United States because US Court man. As I told you
earlier, option na sa court, kung gusto siya muexercise of jurisdiction, pili
lang siya asa’y applicable. Apparently the Passive Nationality Principle
justified the exercise of jurisdiction over Usama Bin Laden and others.
United States vs. Usama Bin Laden (2000)
Facts: Defendants are charged with a variety of crimes stemming from the
August 1998 bombings of the US Embassies in Nairobi, Kenya.
Court: The passive personality principle is increasingly accepted as
applied to terrorists and other organized attacks on a state’s
nationals by reason of their nationality, or to assassination of a
state’s diplomatic representatives or other officials…” (citing
Restatement 402). “…..Universal jurisdiction is increasingly accepted for
certain acts of terrorism…” (citing Restatement 404)…Both universal
jurisdiction and the protective principle xxxxxx xxxxx for jurisdiction by the
United States over the death of xxxxx citizens.”
Then we go to Protective Principle in jurisdiction. Leading practitioner of
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Protective Principle is the United States.
Protective Principle in Jurisdiction
- a state can legislate crimes that it considers to be a threat to its
security, integrity, or economic interests
- common examples: espionage, counterfeiting (terrorism?)
Restatement 402: “…a state has jurisdiction to prescribe the law with
respect to…(3) certain conduct outside its territory by persons not its
nationals that is directed against the security of the state or against a
limited class of other state interests.”
 This principle is limited to conduct that occurs outside a state’s
territory, by noncitizens
So we have here perceptions that this Protective Principle, being narrow in
scope, would usually apply only to situations where there is threat to
security, integrity or economic interest. Economic interest is very much
practiced in the US but anywhere else, courts only focus on security and
integrity. So that makes it narrower in scope. Di na siya applicable in all
cases – ang protective principle.
We have here examples of the application of Protective Principle.
Panamanian ship outside of the territory of any court, in the high seas, the
Supreme Court of the US affirmed the validity of the acquisition(?) on the
basis of Protective Principle. Because the ship was instrumental in the
introduction of prohibited drugs to the US. In the US, kanang introduction
of prohibited drugs, would be a threat to the security.
United States vs. Romero-Galue, 757 F.2d 1147 (11th Cir. 1985)
US could still exercise jurisdiction over the Panamanian ship even if there is
no treaty because the protective principle would allow the US to prosecute
foreign nationals on foreign vessels on the high seas for possession of
narcotics (and in some way inherently harmed the US)
 “The protective principle permits a nation to assert
jurisdiction over a person whose conduct outside the
nation’s territory threatens the nation’s security or could
potentially interfere with the operation of governmental
functions.”
Universality Principle (Universal Jurisdiction) –
Our leading case is Attorney General of Government of Israel v. Eichmann.
Involves one of the trusted generals of Hitler. So Eichmann was in
Argentina, captured by Israeli agents and prosecuted in Israel for crimes
committed in Germany. Crime committed is Genocide.
Attorney General of Government of Israel vs. Eichmann (1961)
Israel tried and convicted Adolf Eichmann, who had been captured by
Israeli agents in Argentina and brought to Israel for trial. Eichmann was
charged of committing crimes against Jewish people, crimes against
humanity, war crimes, and membership in hostile organization as defined in
Israel’s Nazis and Nazi Collaborators Punishment Law. Eichmann argued
that the court had no jurisdiction because he was captured in a foreign
country in violation of international law.
What should justify the exercise of jurisdiction? Universal Jurisdiction
because universal jurisdiction is usually applicable for crimes that are
violation of erga omnes norms, or jus cogens, one of which of course is
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genocide. Torture, slavery.
Court:
“From the point of view of international law, the power of the
State of Israel to enact the law in question…is based… on a dual
foundation: the universal character of the crimes in question and their
specific character intended to exterminate Jewish people.”
The case of Pinochet is also a leading case in jurisdiction. Pinochet was
then dictator in Chile and there were allegations of torture against Spanish
citizens in Chile. When ousted by a democratic group, he went to England
for medical purpose. There he was arrested. Spain had earlier issued an
international warrant of arrest against Pinochet. When he was arrested in
England, Spain wanted to exercise jurisdiction over Pinochet.
How was it justified? Spain invoked Universal Jurisdiction because the crime
committed is a universally punished crime – torture. And acts of torture
have already been considered customary international law and in fact we
now have CAT as its clear manifestation of its being a customary
international law. Convention Against Torture.
Also, Spain relied on Passive Nationality Principle because the victims were
Spanish. Blue Spanish Eyes. 
Pinochet Case
- Spain relied on Universal Jurisdiction to argue for Pinochet’s
extradition from England to Spain
- It also relied on Passive Nationality/Personality (Spanish citizens
were killed in Chile)
- Passive Nationality/Personality was found to be more persuasive
than Universal Jurisdiction
- No Territorial Jurisdiction – happened in Chile, not Spain
- No Active Nationality – Pinochet was not Spanish
- No Protective Principle – there was no imminent threat to Spain’s
national security from Chile
EXTRADITION
These are the six fundamental rules in extradition – all of them asked in the
bar exam.
Basic Principles in Extradition
1. No treaty, no “obligation” to extradite
2. Pacta sunt servanda applies
3. Dual purposes: 1. Prosecution, 2. Execution
4. Could not cover “political offenses”
a. Cf: “Attentat Clause”
5. “Rule of Specialty” must be followed
6. Ex post Facto Law prohibition does not apply
1. Extradition is treaty-based. Where there is no extradition treaty,
there is no obligation to extradite.
2. The only way by which a state can be compelled to extradite is
pacta sunt servanda.
3. There are two purposes: prosecution and execution. Prosecution
before conviction, and execution for those who have already
been convicted but were able to go to a foreign territory.
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 4. Because there is the Right to Asylum, we don’t apply extradition
to political offenses.
- What is this attentat clause? Attentat clause is usually found in
extradition treaties would provide that the mere killing of a head
of state should not constitute automatically as a political offense
to avoid extradition.
5. Then we have the rule of specialty in extradition. What does it
mean? What are the kinds of crimes that can be subject of
extradition? There are two kinds, one considered listed and one
through the application of double criminality principle. So pwede
mag enumerate ang 2 ka parties sa treaty kung unsa na crimes
ang pwede ma subject sa extradition then it will provide a clause,
double-criminality clause which provides that if in the event a
crime is committed which is not among those listed. The reasons
being the characters of people change or new crime laws will be
passed. That's why most states would stipulate on double-
criminality clause which means that even if a crime is not listed in
the treaty, if the crime is punishable in both states, then it can be
a subject of extradition. The rule of specialty means that if a
request for extradition is done on a specific offense or crime let's
say murder, it is a violation of due process and international law
will not allow a prosecution of the extraditee or extradited person
for another offense. So kung gi extadite ka on the basis of the
request for murder then pag balik na sa receiving state,
iprosecute ka for rape, then whether or not extraditable offense
siya or dili, it does not matter. If the extradition is for murder
then the extraditee must be prosecutecd for murder.
6. Ex post facto law does not apply because it is not a penal law. So
pwede na crimes committed in the past, let's say committed on
2010 and then extradition treaty took effect on 2012, pwede mu
apply.
Of course the issue of legality of the abduction of criminals in foreign
territory is also a relevant issue in jurisdiction.
Legality of “Abduction” of criminals in foreign territory:
 Three modes of “Rendition”: Extradition, Deportation, and
Abduction.
 Abduction of criminals in the territory of another is understood as
“intervention” and therefore violates customary law and the UN
Charter (Art. 2(4));
 It can only be justified if done invoking self-defense;
 But, the illegal apprehension will not necessarily affect
the jurisdiction of the apprehending state (male captus,
bene detentus) unless the defendant was secured
through torture, brutality, or similar outrageous conduct.
There are 3 modes of rendition as observed by experts in international law.
The two are institutionalized extradition. Deportation is also
institutionalized, abduction is not. It is an accepted mode of rendition.
Theoretically of course, if you abduct a criminal or any person for that
matter from foreign soil, it's a violation of international law, the principle of
non-intervention. That's a given. If abduction is made in a foreign territory,
there is violation of international law but will that violation affect the validity
of the abduction to the point that the court will be divested of its
jurisdiction? We are guided by the general principle of male captus bene
detentus or wrongfully captured, validly detained, meaning the illegal
apprehension of a criminal will not necessarily affect the jurisdiction of the
apprehending state.
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Bar exam question: What is the justification for the rule? The justification
is this: apprehension or arrest of a criminal is not a function of the court
therefore, any conduct or misconduct or whatever manner is employed in
the arrest of the criminal should not affect the jurisdiction of the court for
as long as according to the court in the case of Ker vs. Illinois: for as long
as the person arrested when already in court will be afforded due process.
And the rules on criminal procedure and the rights of an accused will be
afforded to the accused. He will be presumed innocent until proven
otherwise, evidence obtained in violation of due process and evidentiary
rules will not be admitted in evidence. So those principles will still be
applied. So the court said: di mo matter ang manner of abduction basta the
moment he is prosecuted, he will have all the rights of the accused,
including his rights to due process.
The principle of male captus bene detentus was affirmed in the case of
Attorney General of the Government of Israel v. Eichmann 1961 but
as early as 1886, you have the cases of Ker vs. Illinois and Friesbie vs
Collins in 1952. Abduction in and on itself does not invalidate a
prosecution against a foreign national.
Attorney General of Israel vs. Eichmann (1961)
Israeli agents had abducted Eichmann from Argentina without consent of
Argentinian government. Eichmann argued before the Israeli Court that the
illegal act of abduction took away the jurisdiction of Israeli courts to try him
and he should be returned to Argentina to be tried there. Argentina
complained to the UN about this abduction, demanding not only
compensation for unlawful intervention on its territory, but also for the
return of Eichmann. The issue was however mooted by an agreement
entered into by Argentina and Israel.
Ker vs. Illinois (1886)
The treaties of extradition to which the United States are parties
do not guarantee a fugitive from the justice of one of countries an asylum
in the other. They do not give such person any greater or more sacred right
of asylum than he had before. They only make provision that for certain
crimes, he shall be deprived of that asylum and surrendered to justice, and
they prescribe the mode in which this shall be done…How far such
forcible transfer of the defendant so as to bring him within the
jurisdiction of the state where the offense was committed may be
set up against the right to try him is the province of the state
court to decide, and presents no question in which this Court can
review its decision.
Frisbie vs. Collins (1952)
Court: This court has never departed from the rule announced in Ker v.
Illinois, … that the power of a court to try a person for crime is not
impaired by the fact that he had been brought within the court’s
jurisdiction by reason of a “forcible abduction.” No persuasive
reasons are now presented to justify overruling this line of cases. They rest
on the sound basis that due process of law is satisfied when one present in
court is convicted of crime after having been fairly apprised of the charges
against him, and after a fair trial in accordance with constitutional
procedural safeguards. There is nothing in the Constitution that requires a
court to permit a guilty person rightfully convicted to escape justice
because he was brought to xxxxx xxxx (against) his will.
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United States vs. Alvarez-Machain (1992)
The presence of an extradition treaty between the United States
and another nation does not necessarily preclude obtaining a citizen of that
nation through abduction. It has long been the rule that abduction, in
and of itself, does not invalidate a prosecution against a foreign
national. The only question, therefore, is whether the abduction violates
any extradition treaty that may be in effect between the United States and
the nation in which the abductee was to be found. Here, the US-Mexican
authorities presumably were aware of the United States’ long-standing law
regarding abductions and did not insist on including a prohibition against
abductions.
Now, let's go to the exception: unless the defendant was secured through
torture, brutality or similar outrageous conduct. Our authority on the matter
is the case of US vs Toscanino 1974. Why was this case applied and not
Ker vs. Illinois and Friesbie vs Collins in 1952? You look at the date
when it was decided. The SC of the US in the Toscanino case traced back
the perception of the world of an individual at the international level. In the
past, it's easy to disregard certain rights of individual in favor of state
interest. Utilitarianism. The idea in the past is the end justifies the means.
But because of development of international humanitarian law, perception
of giving an individual more rights at the international level, domestic
courts also adopted to that.
U.S. vs. Toscanino (1974)
Toscanino was abducted in Uruguay by an agent of the United States,
taken to Brazil, and brutally tortured and interrogated for 17 days. He was
then placed on a civilian aircraft bound for the U.S. and arrested on arrival.
He contended that the district court lacked jurisdiction over him because of
the circumstances of his arrest. Notwithstanding Ker-Frisbie, the U.S. Court
of Appeals for the Second Circuit agreed, ruling that, if the allegations were
true, they were so shocking to the conscience that due process
required that the district court divest itself of jurisdiction.
Court (through J. Mansfield):
“We view due process as now requiring a court to divest itself of
jurisdiction over the person of a defendant where it has been acquired as
the result of the government’s deliberate, unnecessary and unreasonable
invasion of the accused’s constitutional rights.”
And so the court said, due process would now require the court to divest
itself of its jurisdiction over the person of the defendant where it has been
acquired as a result of government’s deliberate, unnecessary, and
unreasonable invasions of the constitutional rights of an accused. Abduction
is a violation of principle of non-intervention. However, the court held that
abduction per se will not divest the court of jurisdiction. If the abduction is
accompanied by brutality, torture and other similar outrageous conduct, the
court is also duty bound to consider such situation, and part of due
process, to divest itself of its jurisdiction. That is the case of US vs.
Toscanino (1974).
But a few months after Toscanino, the case of Lujan v. Gengler (1974)
wherein the Toscanino was not applied, and it reverted back to Ker-Frisbie
applying male captus, bene detentus because according to the court, mere
kidnapping or abduction will not divest the court of its jurisdiction, unlike in
Toscanino where the kidnapping was accompanied by torture (the brutality
in Toscanino was to the extent that he was hit with the butt of a gun, and
such brutalities were done in front of his wife). In Lujan, he was
blindfolded, kidnapped and detained in a secret place but there was no
allegation of brutality, torture or similar outrageous conduct, thus, the court
went back to the basic principle of male captus, bene detentus.
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Lujan v. Gengler (1974)
Government-sponsored abduction, in and of itself, did not constitute
conduct sufficiently “shocking” to violate due process and therefore did not
trigger the Toscanino exception to Ker-Frisbie. Rather, the Toscanino
exception required more - - such as kidnapping combined with torture at
the hands of agents of the US Government. Here and unlike in Toscanino,
there is no showing that police brutality, torture or similar
outrageous conduct accompanied the abduction.
HEAD OF STATE AND DIPLOMATIC IMMUNITY
There are two kinds of immunity: ratione personae and ratione materiae. In
immunity ratione personae, we look at the person and the law as it is
applicable to the person, i.e., we look at the head of state while he is the
head of state or a diplomat. On the other hand, immunity ratione materiae
becomes relevant when we look at a FORMER head of state or a diplomat.
Two categories of diplomatic immunity:
 Immunity ratione personae
- Immunity that attaches to the person of the diplomat while he is
a diplomat
- This is irrelevant for former diplomats
 Immunity ratione materiae
- For former officials, the focus is on the act. This is normally
irrelevant while a person is a diplomat;
- When a person ceases to be a diplomat, or his government
waives his immunity, the person retains substantive immunity for
actions he performs in his civil function while still diplomat.
Head of State
What is the rule on head of state? Is the head of state immune from suit?
If he’s incumbent, immunity ratione personae—during incumbency a head
of state is immune from suit, even foreign ministers (in the case of Congo),
and even diplomatic officials are immune from arrest, detention, and
processes while they are incumbent. However, in the case of head of state,
it is absolute in all cases whether civil, criminal, special proceeding, even
for international crimes (although that is still a debatable issue). In the case
of Belgium v Congo, he’s exempt even for international crimes as long as
he’s incumbent, meaning, prosecution comes only after their incumbency
applying immunity ratione personae.
Diplomatic Immunity
Personal and Functional Immunity of Diplomatic Officials
In terms of immunity from jurisdiction, a distinction must be drawn
between civil and criminal process.
In terms of criminal jurisdiction, diplomatic agents have total
immunity from the law of the receiving state and the only remedy
available to the receiving state is to declare the diplomat persona non
grata. The immunity from criminal jurisdiction applies to any offense
committed by the diplomat whether official or not. In terms of civil
jurisdiction, diplomats are immune from the civil jurisdiction of the receiving
state except in three (3) cases. The immunity of diplomats extends to
“arrests” and “detentions”. (See: DR of Congo vs. Belgium, 2002)
In the case of diplomats, when we’re talking about immunity ratione
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personae, there is absolute immunity in criminal suit only, but he is not
immune in civil suit in certain cases. Distinguished from a head of state
who enjoys absolute immunity in all cases whether criminal or civil. Total
immunity in criminal jurisdiction for diplomats, the remedy of the receiving
State is to declare diplomat as persona non grata (an ungrateful person).
The concept of persona non grata is specifically applicable to diplomats (not
applicable to fellow Filipinos, it is a misapplication of such remedy). Persona
non grata is a remedy because the diplomat is supposedly totally immune
from criminal jurisdiction, i.e., arrest, detention, processes whether done in
his official capacity or not.
In terms of civil jurisdiction, diplomats are immune generally, except in
three cases (please just look at our convention on diplomatic and consular
officials), regardless of whether done in their official capacity. Unlike in
consuls we limit their immunity to official conduct only.
Functional Immunity of Consular Officials
As for Consuls, however, although they enjoy more or less the same
immunities and privileges as diplomats, their immunity from criminal and
civil jurisdiction extends to their official acts only.
Ambassadors are for political concerns of the state. Consuls are for
commercial aspects of the state.
After incumbency, a head of State, may already be prosecuted except for
acts done in his official capacity. So, totally exempt during incumbency.
Post-incumbency, we need to distinguish between acts done in official
capacity and acts done not in official capacity. So for acts done in official
capacity even if it is post-incumbency, EXEMPT.
That is why, in the case of PINOCHET since it was an act of torture,
according to the Court, it cannot be official because it is a violation of Jus
Cogens norm prohibiting torture.
Immunity of Former Head of State in Criminal Proceedings
The Pinochet Case (2001):
The House of Lords of UK ruled that “the absolute prohibition of
torture, a jus cogens norm, overrides immunity afforded to a
former Head of State in criminal proceedings. The commission of a
crime against humanity and jus cogens cannot be done in an official
capacity on behalf of a state.”
(Sir skipped TREATY LAW)
LAW OF THE SEA
The Law of the Sea
 Governed by the 1982 UNCLOS III (UNCLOS I – 1958; UNCLOS II
– 1960)
 Basic Zones: 1. Internal Waters, 2. Territorial Sea, 3.
Contiguous Zone, 4. Exclusive Economic Zone, and 5.
High Seas.
 Baseline (Low-water mark Method vs. Straight Baseline Method)
UNCLOS, the latest is UNCLOS III, 1982 and it governs basic zones:
internal waters, territorial sea, contiguous zone, EEZ and the high seas.
Let us explore the rights of the coastal states of these maritime zones.
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First, we have to know the baselines because these zones are computed
from the baselines. The baseline is mandated to be done domestically. So
all member states of the UNCLOS were given a deadline to define their
baselines on the basis of the mandate of the UNCLOS. And the Philippines,
siguro as a manifestation of our character, nag – JIT ta class. ‘Just In
Time’. We already defined our baseline law and it was questioned in the
case of Magallona v. Ermita, and it was upheld as valid. It did not restrict or
expand our territory. It simply defined our baseline.
We use Low-Water Mark for non-archipelagic states. For archipelagic
states, we use the Straight Baseline Method. And the Straight Baseline
Method would require the drawing of an imaginary line, connecting the
outermost points of the outermost islands, including dry reefs of a
particular archipelago. Then, you comply with certain limitations, such as:
1. The straight baseline shall not depart appreciably from the
natural configuration or form of the archipelago.
2. The water to land ratio shall not exceed 9:1 (9-water, 1-land
mass)
These are the common limitations of the straight baseline method.
[This is not complete. Here’s Art.47 of the UNCLOS where these limitations
were lifted:
“1. An archipelagic State may draw straight archipelagic baselines joining
the outermost points of the outermost islands and drying reefs of the
archipelago provided that within such baselines are included the main
islands and an area in which the ratio of the area of the water to the area
of the land, including atolls, is between 1 to 1 and 9 to 1.
2. The length of such baselines shall not exceed 100 nautical miles, except
that up to 3 per cent of the total number of baselines enclosing any
archipelago may exceed that length, up to a maximum length of
125 nautical miles.
3. The drawing of such baselines shall not depart to any appreciable extent
from the general configuration of the archipelago.
4. Such baselines shall not be drawn to and from low-tide elevations, unless
lighthouses or similar installations which are permanently above sea level
have been built on them or where a low-tide elevation is situated wholly or
partly at a distance not exceeding the breadth of the territorial sea from the
nearest island.
5. The system of such baselines shall not be applied by an archipelagic
State in such a manner as to cut off from the high seas or the exclusive
economic zone the territorial sea of another State.
6. If a part of the archipelagic waters of an archipelagic State lies between
two parts of an immediately adjacent neighbouring State, existing rights
and all other legitimate interests which the latter State has traditionally
exercised in such waters and all rights stipulated by agreement between
those States shall continue and be respected.
7. For the purpose of computing the ratio of water to land under
paragraph l, land areas may include waters lying within the fringing reefs of
islands and atolls, including that part of a steep-sided oceanic plateau
which is enclosed or nearly enclosed by a chain of limestone islands and
drying reefs lying on the perimeter of the plateau.
8. The baselines drawn in accordance with this article shall be shown on
charts of a scale or scales adequate for ascertaining their position.
Alternatively, lists of geographical coordinates of points, specifying the
65
geodetic datum, may be substituted.
9. The archipelagic State shall give due publicity to such charts or lists of
geographical coordinates and shall deposit a copy of each such chart or list
with the Secretary-General of the United Nations.”]
So, if as an example, non-archipelagic state, so our zone would look like
this: (Refer to ILLUSTRATION) internal waters, meaning waters inland
before the territorial sea and would include bays, rivers, canals.
Measurements of Zones of Sea
Then you have the Territorial Sea, 12 nm from the baseline (the yellow
color)
Then 24 nm from the baseline, is the contiguous zone. 200 nm from the
baseline is the EEZ. Beyond is the high seas. Remember, the high seas is
not similar to international waters. These zones can be divided into two
kinds: INTERNATIONAL and NON-INTERNATIONAL WATERS. International
Waters are waters after the territorial sea. Within the territorial sea are
non-international waters. So that’s one perspective, ventral (referring to
above illustration).
We have to know this because we have to know the rule regarding the
Continental Shelf. We still have to know the rights of the coastal states over
continental shelves especially in relation with the EEZ. That’s how it should
look. (referring to below illustration)
Baselines – 12NM – 24NM …There can be 350nm from the territorial sea for
the Continental Shelf where the natural prolongation of the shelf extends
200 nm because if this [kanang nag slope, that is the continental shelf (Sir
referring to the Illustration)] Kung shorter na siya sa 200nm, the rights of
the coastal states over minerals and living organisms that would qualify as
sedentary species, would be within the sovereign rights of the coastal state
even if found to be beyond the natural prolongation kung less than 200 nm
siya.
In a situation where the natural prolongation would extend beyond the 200
nm, then it can reach up to 350 nm. There’s a more complicated Isopath
Rule.
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Competences in Zones of the Sea
Let’s go to the different maritime zones.
First, the Internal Waters. ABSOLUTE. Ship in distress is the ONLY
EXCEPTION when foreign vessels can enter Internal Waters.
Internal Waters
- include ports, harbors, rivers, lakes and canals.
- the coastal state can prohibit entry into its internal waters by foreign
ships, except for ships in distress.
- When already within internal waters, different legal questions arise
depending on the kind of vessel that is within the internal waters: merchant
ships, warships, other foreign non-commercial ships.
Internal Waters include ports, harbors, rivers, lakes and canals (man-made
canals in international law).The coastal state can prohibit entry into its
internal waters by foreign ships, except for ships in distress.
Territorial Waters.
EXCEPTION: Right to innocent passage. When is passage considered
innocent, that’s also found in the UNCLOS. Take a look at examples of acts
which do not fall under the right of innocent passage later.
Territorial Sea
- Not Exceeding 12 n.m. from the “baseline”
- Baselines: 1. Normal Baseline (Low-Water Mark method), and 2.
Straight Baseline Method
- Limitation: “Right of Innocent Passage” by foreign ships. It is
innocent if not prejudicial to the peace, good order or security of the
coastal state. Fishing vessels must comply with local laws and submarines
must navigate on the surface and show their flag.
Recap: Internal Waters, exception: Ships in Distress. Territorial Sea,
exception: Right to Innocent Passage.
When is passage considered innocent? It is found in the UNCLOS. Take a
look at examples of acts which do not fall under the right of innocent
passage later.
Territorial Sea, 12nm from the Baseline. For Archipelagic States, straight
baselines; For non- archipelagic states, Low water mark. That’s the point
where the water and the dry land mass meet during low tide.
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Territorial Sea
 Breadth (Art. 3)
- Up to 12 nautical miles from baseline …
 Measurement - baseline (Art. 5):
- Except where otherwise provided in this Convention, the
normal baseline for measuring the breadth of the territorial
sea is the low-water line along the coast as marked on
large-scale charts officially recognized by the coastal State.
So that’s part of the territory ha, ang territorial sea of course. So our laws
extend up to 12 NM in all respects.
Territorial Sea
Sovereignty, subject to the Law of the Sea Convention (Art. 2)
1. The sovereignty of a coastal State extends, beyond its land
territory and internal waters and, in the case of an archipelagic
State, its archipelagic waters, to an adjacent belt of sea,
described as the territorial sea.
2. This sovereignty extends to the airspace over the territorial sea
as well as to its bed and subsoil.
3. The sovereignty over the territorial sea is exercised subject to
this Convention and to other rules of international law.
SO these are the examples of exercise of the right to innocent passage.
Territorial Sea
 Rights of Ships – innocent passage (Arts. 17-18)
Art. 17: Subject to this Convention, ships of all States … enjoy the right of
innocent passage through the territorial sea.
Art. 18: 1. Passage means navigation through the territorial sea for the
purpose of:
(a) Traversing that sea without entering internal waters or calling at
a roadstead or port facility outside internal waters; or
(b) Proceeding to or from internal waters or a call at such roadstead
port facility.
2. Passage shall be continuous and expeditious. However, passage includes
stopping and anchoring, but only in so far as the same are incidental to
ordinary navigation or are rendered necessary by force majeure or distress
or for the purpose of rendering assistance to persons, ships or aircraft in
danger or distress.
Examples of acts that will negate right of innocent passage. This is where
the French Rule and English Rule comes in. But ayaw na nah ninyo iapply
because these were rules followed before the UNCLOS.
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Territorial Sea
Meaning of Innocent Passage (Art. 19):
1. Passage is innocent so long as it is not prejudicial to the peace,
good order, or security of the coastal State. Such passage shall
take place in conformity with this Convention and with other rules
of international law.
2. Passage of a foreign ship shall be considered to be prejudicial to
the peace, good order, or security of the coastal State if in the
territorial sea it engages in any of the following activities:
- [Paraphrased: threat or use of force, weapon exercise,
espionage, launching or landing of aircraft or other military
device, violation of customs, fiscal, immigration or sanitary laws,
willful and serious pollution, fishing, research or surveying
activities, interfering with communications or other facilities, or
“any other activity not having a direct bearing on passage”]
Territorial Sea
Civil Jurisdiction in Relation to Foreign Ships (Art. 28)
1. The coastal State should not stop or divert a foreign ship passing
through the territorial sea for the purpose of exercising civil
jurisdiction in relation to a person on board the ship.
2. The coastal State may not levy execution against or arrest the
ship for the purpose of any civil proceedings, save only in respect
of obligations or liabilities assumed or incurred by the ship itself
in the course or for the purpose of its voyage through the waters
of the coastal State.
3. Paragraph 2 is without prejudice to the right of the coastal State,
in accordance with its laws, to levy execution against or to arrest,
for the purpose of any civil proceedings, a foreign ship lying in
the territorial sea, or passing through the territorial sea after
leaving internal waters.
Territorial Sea
Criminal Jurisdiction on Board a Foreign Ship (Art. 27)
1. The criminal jurisdiction of the coastal State should not be
exercised on board a foreign ship passing through the territorial
sea to arrest any person or to conduct any investigation in
connection with any crime committed on board the ship during its
passage, save only in the following cases:
(a) If the consequences of the crime extend to the coastal
State;
(b) If the crime is of a kind to disturb the peace of the country
or the good order of the territorial sea;
(c) If the assistance of the local authorities has been requested
by the master of the ship or by a diplomatic agent or
consular officer of the flag State; or
(d) If such measures are necessary for the suppression of illicit
traffic in narcotic drugs or psychotropic substances.
Contiguous Zone, this is where the state can exercise protective
jurisdiction. Kung territorial sea, absolute.
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Contiguous Zone
-24 n.m. from the baseline
-Coastal State is limited to Protective Jurisdiction only, that is, to
prevent infringement of its customs, fiscal, immigration, or
sanitary regulations
EEZ
Exclusive Economic Zone
Specific Legal Regime created by UNCLOS
 Art. 55 – the exclusive economic zone is an area beyond and
adjacent to the territorial sea, subject to the specific legal regime
established in this Part, under which the rights and jurisdiction of
the coastal State and the rights and freedoms of other States are
governed by the relevant provisions of this Convention.
Breadth
 Art. 57 – The exclusive economic zone shall not extend beyond
200 nautical miles from the baselines from which the breadth of
the territorial sea is measured.
Difference between the EEZ and Continental Shelf
1. Ang EEZ will have to be claimed by the coastal state, not in the case of
Continental shelf. Exclusive gyud na siya (referring to the continental
shelf). Ang EEZ (exclusive sovereign rights of exploitation) if you cannot
exploit the resources, you are mandated by the UNCLOS to enter into a
joint venture with other states. So kinanglan i-claim na nimo. Ang
continental shelf exclusive gyud na siya sa coastal state. It is not
mandated to enter into a joint venture without the consent of the
coastal state.
2. Sovereign rights of the EEZ would have to cover resources in the waters
superjacent to the seabed and the seabed and the subsoil. SO pag-
imagine lang gud class, nga tubig ni, kaning fish nga superjacent sa
subsoil (sa ibabaw), part na siya sa EEZ sovereign rights. Inig touch na
sa seabed ug subsoil, naa pa diha ang living and non – living resources.
Pero kung ilawm na gani sa seabed ug subsoil, under seabed and
subsoil, MINERALS, maw na nah ang subject sa CONTINENTAL Shelf
sovereign rights.
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Exclusive Economic Zone
Art. 56 – Rights, jurisdiction and duties of the coastal State in
the EEZ
1. In the exclusive economic zone, the coastal State has:
(a) Sovereign rights for the purpose of exploring and
exploiting, conserving and managing the natural
resources, whether living or non-living, of the waters
superjacent to the seabed and of the seabed and
its subsoil, and with regard to other activities for the
economic exploitation and exploration of the zone, such
as the production of energy from the water, currents
and winds;
(b) Jurisdiction as provided for in the relevant provisions of
this Convention with regard to:…..(ii)marine scientific
research; (iii)the protection and preservation of the
marine environment;
(c) Other rights and duties provided for in this Convention
2. In exercising its rights and performing its duties under this
Convention in the exclusive economic zone, the coastal State
shall have due regard to the rights and duties of other
States…..
3. The rights set out in this article with respect to the seabed
and subsoil shall be exercised in accordance with Part VI
[Continental Shelf]
Continental Shelf
Art. 77 – Rights of the coastal State over the continental shelf
1. The coastal State exercises over the continental shelf
sovereign rights for the purpose of exploring it and
exploiting its natural resources.
2. The rights referred to in paragraph 1 are exclusive in the
sense that if the coastal State does not explore the
continental shelf or exploit its natural resources, no one may
undertake these activities without the express consent of the
coastal State.
3. The rights of the coastal State over the continental shelf do
not depend on occupation, effective or notional, or on any
express proclamation.
4. The natural resources referred to in this Part consist of the
mineral and other non-living resources of the seabed
and subsoil together with living organisms belonging
to sedentary species, that is to say, organisms which, at
the harvestable stage, either are immobile on or under the
seabed or are unable to move except in constant physical
contact with the seabed or the subsoil.
The sedentary resources referred to in No. 4 is the only living resources in
the continental shelf subject to the sovereign rights of the coastal state, all
others, non – living gyud na siya, meaning minerals. Apart from continental
seas, of course your high seas.
(Referring to Mock Bar preparation: Please read Environmental Law – The
Trail Smelter Case. Then the transboundary norm. Apart from knowing
that, we should also know whether these norms are norms of Customary
Intl Law. Do not disregard Intl Humanitarian Law)
{POST-MOCK BAR, October 3, 2014}
68
 CONTEMPORARY ISSUES IN PUBLIC INTERNATIONAL LAW
If an agreement is not entitled “Treaty”, will it be governed by the Vienna
Convention on the Law of Treaties?
UN Sanctions and Collective Security – this is a recurring issue. We’re
talking about the recurring issues involving Middle-East countries, in Syria,
in Israel. Also, special status of some territories, whether they can be
considered state or not.
UN SANCTIONS AND COLLECTIVE SECURITY
What is the rule of thumb when it comes to resolving conflicts? The first
rule of thumb (?) when it comes to Conflict Resolution in International Law
is through Peaceful Means. When we talk about UN Sanctions and
Collective Security, we begin with measures that are short of armed force.
One of the issues that we’ll be talking about will be the issue on the use of
force either by the UN, by an individual state, or by a collective effort in
pursuit of Self Defense.
1. MEASURES SHORT OF ARMED FORCE
 Art. 33 allows the Security Council (SC) to call upon the parties to
settle their disputes peacefully (through negotiation, enquiry,
mediation, conciliation, arbitration, judicial settlement,
arrangements, etc.)
 Art. 39 allows UN to call upon the partners concerned to
implement “provisional measures”
 Art. 41 suggests that the SC should take measures “not involving
the use of force” “to give effect to its decision”
Examples:
1. Complete or partial interruption of economic relations, means
of telecommunications, and severance of diplomatic ties;
2. Non-recognition of illegal situations;
3. Condemnation of illegal acts;
4. Public Exposure by the GA of gross violations; and
5. Establishment of ad hoc criminal tribunals.
If you look at Article 33 of the UN Charter, you will see there the
idea/suggestion that before use of force will be employed – even by the UN
– peaceful resolution should be availed of. Article 33 allows the Security
Council (SC) to call upon the parties to settle their disputes peacefully. And
you will have negotiation, inquiry, mediation, arbitration, conciliation,
judicial settlement. And it’s very common when parties voluntarily submit
their controversies to the international court of justice.
Under Article 39 of the UN Charter, UN through SC may call upon the
parties to implement some provisional measures during armed conflict.
Instead of immediately sending troops to an area where there is an
ongoing armed conflict, it may be possible to send peacekeeping operations
for the purpose of implementing some provisional measures that the parties
have probably agreed upon, such as peaceful transport or evacuation of
citizens. Both parties can request the UN through their relevant Committees
to help implement some provisional measures. Agreement to have cease
fire – the UN can be called upon to make sure that such arrangement will
be complied with.
Article 41 is the core Article suggesting the resort to measures that are
short of armed force. The SC may decide what measures to take that do
not involve the use of force to give effect to its decision. And in fact, we call
upon UN members to implement such measures. There are examples
mentioned in Article 41. Examples of which would be complete, or partial
interruption of economic relations, complete/partial interruption of means
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of telecommunications, and severance of diplomatic ties. These are
peaceful means.
Other options available to the SC would be the non-recognition of illegal
acts or situation. The issuance of resolutions. For example, when Iraq
invaded Kuwait, the SC passed a series of resolutions declaring that none of
these acts done by Iraq would be recognized by the members of the Family
of Nations. So that’s a measure peaceful in character but will have
significant effects in International Law. What else? Condemnation of illegal
acts through resolutions. Public exposure by the General Assembly of gross
violations. Establishment of ad hoc criminal tribunals. You’ve learned that
there were ad hoc criminal tribunals that were established upon the
initiative of the UN. You have the International Criminal Tribunal of the
former Yugoslavia, for Rwanda, Nuremberg, Tokyo, others. Those were
upon the initiative of the UN. These are examples of peaceful measures.
Aside from these measures, UN actively conducts peacekeeping operations.
2. PEACEKEEPING OPERATIONS
 Deployment of peacekeeping forces (UN Blue Berets)
 Main functions: To separate contending parties, forestall armed
hostilities between them, and maintain order in a given area.
 Evolved functions: To take necessary measures, including use of
force, to reply to bombardments against safe areas of any of the
parties
The idea of Peacekeeping operations is now very well-known to us. Re:
Filipino soldiers who got involved in hostage-taking or armed confrontation
at Syria (?), issue is, is there a moral obligation or legal obligation to send
troops? The moment we became a member of the UN, part of
commitments is to send troops under certain arrangements. So we sent
about 75 Filipino soldiers. That’s one nuh, deployment of peacekeeping
forces.
Antonio Cassese made an analysis of the functions of peacekeeping
operations, and he made an observation that the original purpose of
peacekeeping operation would simply be to one, separate contending
parties and maintain order in a given area. Probably because sophisticated
na ang methods of warfare at present murag ang traditional function of the
peace keeping operation would not be sufficient. Mao ang getawag nga
evolving function of peace keeping operation. I called it contemporary
issues because it is indeed an issue because sometimes the Security
Council will allow the use of force even in safe keeping operations. So,
Security Council sa resolution would even specify when sending peace
keeping operations that they may be allowed to use all means necessary to
implement the decision of the Security Council and ”that all means
necessary” may include the use of force. That is one.
Another UN Security measure would be the use of force by states upon UN
authorization.
3 ways by which use of force may be authorized by the UN:
1. May authorize a particular state to use force; [#3 IN
SLIDES]
2. The UN may authorize regional organizations (like the
NATO) to use force; or [#4 IN SLIDES]
3. The General Assembly will authorize the Security Council
to use force. [#5 IN SLIDES]
[TN] All these, upon the authorization of the Security Council.
And this 1st instance of UN authorization by the state is recognized in
Article 43 of the UN charter.
[1ST INSTANCE BY WHICH USE OF FORCE MAY BE AUTHORIZED BY UN]
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 3. USE OF FORCE BY STATES UPON U.N. AUTHORIZATION
 Art. 43 authorizes Security Council to call upon member States
“to contribute to the maintenance of international peace and
security”;
 This covers:
1. After a State had been engaged in acts of aggression against
another State which had reacted in self-defense; or
2. When there is “threat to the peace or ongoing international or
internal armed conflicts” to implement IHL rights (humanitarian
crises)
Russia and Great Britain. Russia apparently has financial economic interest
over oil in Syria so it was expected nga ang Russia mo veto gyud sa pag
grant og authority sa US to use force, na issue man to.
According to Cassese, there is no customary law yet recognizing the
legitimacy of forceful intervention either for humanitarian purposes if it is
without Security Council authorization. That is a contemporary issue. Why
an issue? Because you have the norm, the rule and state practice,
apparently is not in confimity with the norm mao na issue, not because the
norm itself is problematic but because developing man gud unta ang
International Law yet we somehow limited some of the possible practices of
states by putting threshold and standards in the UN charter. This is the
second.

1st situation. Ex. State A attacks State B and if it can be established that
indeed there is armed attack or unlawful aggression therefore entitling the
victim state to exercise self defense, the UN can authorize State C, another
state, to use force to repel the aggression.
TN that this is UN authorized action different from unilateral intervention by
some states even if it is apparently or allegedly for humanitarian reasons.
Different to cya. It is still an issue whether a state can unilaterally suppress
atrocities in foreign counrties that are violating human rights. If unilateral
by that state, that is still an issue. But if it is authorized by the Security
Council, that is already a legitimate effort to suppress atrocities abroad that
are already considered violations of human rights. This is the first instance
when the Sec. council will allow the use of force calling upon a member
state to use force.
[2ND INSTANCE BY WHICH USE OF FORCE MAY BE AUTHORIZED BY UN]
4. USE OF FORCE BY ORGANIZATIONS UPON
AUTHORIZATION OF THE SECURITY COUNCIL
 Art. 43 allows Security Council to utilize regional arrangements or
agencies for “enforcement actions” “under its authority”
 In 1999, during the Kosovo crisis, NATO decided to attack the
Federal Republic of Yugoslavia (Serbia and Montenegro) without
any specific authorization.
 There is no customary law yet legitimizing forcible intervention
for humanitarian purposes without the need of formal Security
Council authorization (see: Antonio Cassese, International Law)
[3RD INSTANCE BY WHICH USE OF FORCE MAY BE AUTHORIZED BY UN]
5. USE OF FORCE AS AUTHORIZED BY THE GENERAL
ASSEMBLY
 The General Assembly may recommend actions to the Security
Council, upon the latter’s request, under Art. 11 and Art. 12 (1)
of the UN Charter.
 Usually done in situations where a member State has exercised
individual or collective self-defense under Art. 51 of the Charter
and has informed the SC about the use of force in self-defense.
Gen. Assembly authorizing the UN itself to use force. Wala military
personnel ang UN. These are all provided for by member nations. If they
will go there eithr as UN Security Council forces or they will go there, let’s
say US authorized to use force so dunay US forces authorized by Security
Council then there will also be security council forces nga naa pud mga
americans. If the US is a member of a mutual or collective defense sa
treaty then authorized by the Security Council ,naa sad amerikano didto.
That is why it is possible, just like in Gulf war. It has to be by the Gen.
assembly issuing such recommendation but there seems to be a
requirement that a resolution by the General Assembly authorizing the use
of force will have to be upon the request of Security Council. So dili pwede
na ang Gen. Assembly on its own mu issue og resolution for the use of
force. It has to be upon the request of Security Council. This is found in Art.
11 in relation 12 par. 1 of the charter, another important article to study.
Next issue: unilateral resort to use of force.

UNILATERAL RESORT TO FORCE

This is very common and there is a legal basis for this. Under Article 53. An
example of an issue, as i have said it has to be with the authorization of the
Security Council ,so indeed, this is an issue at one point in 1999 in the
Kosovo crisis NATO attacked Serbia and Montenegro without waiting for
specific authorization from the sec. council. Just like what happened to US,
although adverted ang effort to attack Syria because of some
developments, pero the plan supposedly for the US is to take the attack to
Syria because of the alleged use of neurological weapons by the
government of Syria and so you remember that Russia did not and was not
expected to cooperate with the Security Council.

By the way, kanang veto power will not allow the Security Council to
authorize a particular major decision. Going back to the basic, there are 11
members of Security Council. Naa 5 permanent and 6 non-permanent
members. For procedural issues, the Security Council will have to arrive at
a vote of 7 but ang problem sa Security Council kai kung other decision
than procedures it would have to require the vote of the 5 permanent
members, unanimous sila. If one nila disagrees mo veto cya that no major
action may be taken by the Security Council. Supposedly, may clause cya
nga if a member is involved in the armed conflict dapat mu abstain cya.

Pero mga ingani na problem, as you know the 5 permanent members also
have informal allies. The 5 permanent members are China, France, US,

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Jus Ad Bellum (the law of going to war)
 Art. 2(4) of the UN Charter prohibits “use of force” and
“threat to use force”; customary international law (see
Nicaragua vs. US); analyze the scope and intensity (“massive
armed attack” against the “territorial integrity and
political independence of a state that imperils its life and
government); note: Retorsion & Reprisal are coercive measures
short of war;
 Any use of force/threat to use force may only be lawful if done
with the collective decision of the UN in cases of threats to
peace, breaches of peace, or acts of aggression [Chapters V-VII,
UN Charter] [including against international terrorism, threats
posed by weapons of mass destruction, and on humanitarian
grounds; cf: Art. 2(7)as limitation];
 States can only justify use of force in case of self-defense as
recognized in Art. 51 of the UN Charter [Individual or Collective
self-defense (see Arts. 52-53)] until the Security Council has
taken measures; the State exercising right of self-defense must
report the measures taken to the Security Council;
 Self-Defense must comply with the requirements of (1) presence
of “armed attack”; and (2) observance of the principles of
“proportionality”, “precaution” and “military necessity”
So this brings me to that field of law called Jus Ad Bellum. There are 2
kinds of rules or legal system involving war. One is Pre-War and the other
is During-War. So when we say Jus ad Bellum, this is the category of law
evaluating situations or instances when a state can lawfully engage in war,
in short, when to lawfully use force. The most relevant article of course is
Article 2(4) in relation to Article 51. Article 2(4) of the UN Charter prohibits
the use of force. Article 51 limits that declaration in Article 2(4) about the
prohibition to use force because it allows the use of force when done in
self-defense.
But first, before we go the right of self-defense, let’s take a look at the
scope or limitations to the use of force. It is prohibited and it is in fact a
customary international law as recognized in the case of Nicaragua vs. US.
More often than not, the concept of self-defense will revolve around the
parameters set forth by the ICJ in Nicaragua vs. US. In fact, one of the
issues that you will have to deal with is the “use of force”. If the “use of
force” or even the “threat to use force” is prohibited, you need to
understand what constitutes “force”.
In the case of Nicaragua vs. US, there is a suggestion that one should
analyze the scope and the intensity. If it is to qualify as force, so that it
may be prohibited, and therefore be considered illegal.
Retorsions and reprisals are considered coercive measures but not
considered “force” unless reprisal is armed reprisal, in which case it may be
considered as “use of force”.
In relation to this, we ask the question of when is “use of force” allowed,
and you’ve learned that it can be allowed only in two instances: (1)
collective decision of the UN (2) used as a result of the exercise of self-
defense (whether individual or collective).
The UN Charter always uses the word “State” when it comes to “use of
force” or “armed attack”. However, commentators say that it would not be
correct to limit the concept of “force” when the UN Security Council is
allowed to use force if it is limited to “states” because it is possible that the
acts of aggression or armed attack may be perpetrated by non-state actors
such as organized terrorist groups, even insurgents.
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The idea of “force” as prohibited by the UN Charter and in relation to the
exercise of the power of the UN through the Security Council to repel such
force does not have to be “force” done or exerted by states.
The second instance where force may be lawfully used is in case of self-
defense. It may be individual or collective. If you look at Article 51, there
are certain rules to be observed. One, the exercise of the right of self-
defense is good only until the Security Council has taken measures. In
other words, the moment the Security Council is informed of the acts done
pursuant to the exercise of the right to self-defense, the moment the
Security Council steps in, maintain peace and order, and may effectively
control any use of force by the aggressor, then the state invoking self-
defense should stop and cease using force. So the right to self-defense is
limited in scope and also in time. That is saying that any use of force while
the Security Council is already in control of the situation may be a
questionable act under the international law. That is if you look into the
literal interpretation of Article 51.
But Cassese does not necessarily agree, because it should be the state
invoking self-defense should right away cease to use force the moment the
Security Council already exerts effort to control the aggressor.
These are inherent limitations to the use of force when invoking right to
self-defense. Of course, there must be the presence of armed attack. And
in Nicaragua vs. US, “armed attack” should not just any armed attack to
warrant the use of force by way of self-defense. Small-scale armed attack
will not warrant the use of force. It should be, reading the pronouncement
of the ICJ in Nicaragua case “such an attack that is characterized as
massive armed attack and endangering territorial integrity and political
independence of the state.” So small scale staging of an attack, even if it is
armed will not necessarily entitle the victim state to invoke the right to self-
defense and consequently use force. In other words, we need to know the
intensity of the attack if it could qualify as the kind of armed attack that will
necessitate self-defense and the use of force in furtherance of such
defense. Second, still in Nicaragua vs. US, there shall likewise be
observance of proportionality, precaution, and military necessity.
Always remember that not all armed attacks will warrant the use of force
for right of self-defense. It should be a massive armed attack as explained
in Nicaragua vs. US. It could also be widespread, and probably with the
intensity that endangers not only the territorial integrity but even political
independence.
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Jus Ad Bellum
“SELF-DEFENSE”
1. Inherent! Case: Caroline case (standard: “necessity of that self-
defense is instant, overwhelming, and leaving no choice of
means, and no moment for deliberation”)
2. Recognized by Art. 51 of the UN Charter (already limited and
fixed?)
3. Preventive/Anticipatory Self-defense, still contentious
Case: Nicaragua vs. US, supra; Cuban Missile Crisis; Caroline
Standard [Daniel Webster Formulation: “leaving no moment for
deliberation” standard]
4. Self-defense and Claims to Territory, inconsistent
- See 1970 General Assembly Friendly Relations Declaration
5. Self-defense and Nuclear Weapons; still broad, not clearly settled
6. Self-defense and Rescue of Hostages or Protection of Nationals
Abroad; still contentious
7. Self-defense against Non-State Actors (e.g. terrorists), now
accepted
8. Self-defense against Armed infiltration and indirect Aggression
[organizing, assisting, fomenting, financing, inciting, or tolerating
subversive or terrorist activities carried out against another
State]; not yet settled
In the Caroline case, the threshold or standard enunciated there to be able
to invoke self-defense is of such generic phrase such as “necessity of that
self-defense is instant, overwhelming, and leaving no choice of means, and
no moment for deliberation”.
The question now is, the limitation to the exercise of the right to self-
defense seem to be unwarranted. Why? Because the right to self-defense is
supposedly inherent. Now that this right of self-defense found its way to
the UN Charter and the Charter provided thresholds, do we have to put
limitations to the right of self-defense (which is supposedly inherent)?
Because if this is customary international law, the treatment is that it (right
to self-defense?) should be there, it should be continued to exist because
that is customary international law. Now that we have somewhat codified
or fixed the right to self-defense, will that give limitations to the exercise of
the right to self-defense? Such as the requirement that it should really be
instant, leaving no moment of choice or moment of deliberation?
For example, in relation to the issue of anticipatory self-defense. The
traditional concept of armed attack is that there is already an armed attack.
Kay ni.ingon gd siya necessity of that self-defense that is instant,
overwhelming, and leaving no choice of means, and no moment for
deliberation.
Diba kabaw namo sa idea sa anticipatory self-defense? Diba mao mani ang
g-invoke sa Israel in relation to operations of Hamas in Gaza? Unsa man
ilang claim? Ang Hamas in Gaza may mga missile sila that they will use
against Israel. Infact, there were attacks using these missiles although na
control sa Israel kay naa silay bag-ong US supported/financed technology.
Pero until when man sila mg use ana nga technology if continuous ang
aggression on the part of Hamas?
So, the idea now is, assuming wala nay attack, but there is evidence of the
attack, will international law require that there should be an actual attack or
an actual aggression before self-defense may be invoked?
In the past, were methods of warfare were not that sophisticated, kanang
idea of actual aggression as a requirement will probably be a proper
element of self-defense. But now, means and methods of warfare are
becoming more sophisticated. By mere push of a button you can attack
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against any state wherever located. Unlike sauna, ang nearby states lang.
Pero karon, even ang opposite part of the globe can be an object of a
missile attack by a mere push of the button.
Nganong issue man na? Can it be a valid argument that the right of self-
defense will now be limited to the requirements set forth in section 51 and
also the readings of the ICJ in the Caroline case. Or can you argue that
since the right to self-defense is an inherent right, and as you know part of
customary international law, it will not lose its character as customary
international law even if it is codified in a convention?
So are you familiar with this principle? That even a customary international
law is codified in a convention, it can co-exist with that convention.
So we have a situation wherein we have a limited right of self-defense
under Art. 51 and an expanded right of self-defense in customary
international law. Because if it is customary international law, it has to be
evolving. And this evolution of customary international law may be
manifested in treaties and conventions outside of the UN. It could be
regional, multilateral. And as you know, conventions and treaties are also
evidence of the progressive development of customary international law.
So, I’m bringing this up class, as an issue. So that you when you go home,
you will review the basic rules on the use of force. So, preventive or
anticipatory self-defense NOT YET SETTLED. But leading states are
advocating for preventive or anticipatory self-defense would have to be US
and Israel.
Ka remember moa tong 1960s man guro toh nga ang Israel gdungan ug
attack ang Egypt ug mga neighboring countries like Jordan because when
they calculated the impending attacks of these neighboring countries;
Egypt, Jordan and Syria. Sa pagcalculate sa Israel, kay pirte man gamaya
aning Israel, tungod sa kagamay nila, halos tanang residents mu undergo
ug military training.
So what they did was, if they would wait for the attack of the 3 countries,
aw sigurado gyud maluto ang Israel. So ilang gibuhat niuna nalang sila ug
attack like sa military installations and stations. So very strategic.
And if you remember, the famous spy of Israel, he was an Israelite and he
became a defense secretary of Egypt. Liman kag ang ilang spy nahimo ug
high ranking official sa ilang opponent. The states counter attacks kabaw
gyd sila asa tirahon ang military installations. So when Egypt learn about
the plot of Israel nga manira sila ug military installations, naghimo sila ug
toy aircraft. Kahoy ba. Made of wood. So mao toy tirahan. Dili pa lage
sophisticated kay 1960s baya.
So when Israel conducted the military operations, aw igo tanan. Kadtong
mga fake military installations, wa hilabti. That’s when they discovered nga
naa gyud spy diri somewhere.
[Additional notes by the Transcriber Assigned to this topic: I think sir was
referring to ELI COHEN who was an Israeli spy. He is best known for his
espionage work in 1961 - 1965 in Syria (not Egypt as what DBL discussed),
where he developed close relationships with
the political and military hierarchy and became the Chief Adviser to
the Minister of Defense. Syrian counter-intelligence authorities eventually
uncovered a spy conspiracy, tried and convicted Cohen under pre-war
'martial law' to death penalty in 1965. The intelligence he gathered is
claimed to have been an important factor in Israel's success.]
So, ang PREVENTIVE AND ANTICIPATORY SELF-DEFENSE has not yet
evolved into a customary international law. But, practiced by some states.
Self-defense and Nuclear Weapons. You just go to the advisory opinion of
the ICJ on the validity on the use of nuclear weapons.
72
Self-defense and rescue of hostages or protection of nationals abroad. Si
Cassese made an opinion of converting this into customary international
law but under the strict requirement or threshold:
1. Pwede nato i-allow ang rescue of nationals abroad for limited and
very narrow purposes.
2. Dapat wala nay laing means to rescue or all means have already
been exhausted either peacefully or through diplomatic channels.
3. After the successful rescue dapat mu stop na daw ang use of
force. But I don’t think this is a valid subject of Bar exam
question.
What I’m trying to say is that you should remember that it is still
contentious. You are not to say that this is valid or invalid depending on the
possible justifications for this.
Self-defense against Non-State Actors (e.g. terrorists), now acceptable.
So in the case of Nicaragua vs. US, ang decision man gud sa ICJ when it
comes to aggression, ni-mention man gd siya ug state. And according to
some commentators, it is wrong to limit lang ang armed attack sa state. So
pwede diay, especially at this time, organized groups like terrorists are
capable of staging massive armed attacks. Mas sophisticated pa na ilang
weapons compared to regular members of the armed forces. So that is also
accepted.
Another issue you will take note is about Self-defense against Armed
infiltration and indirect Aggression. Unsa manang armed infiltration and
indirect aggression? Definitely, if ang armed forces sa State A mu cross ug
border ug mu conduct ug armed attack, way issue. There is an armed
attack contemplated by article 51. Pero naa manay, sometimes naa na
daan sa state B. Unya, State A, the attacking state would either finance,
trains, supply or assist in the logistics of organizing an armed attack against
the central authority of state B. So that is indirect aggression. Instead of
troops crossing the border, ang ilang buhaton kay kadtong mga rebelde sa
target state mao to ilang idevelop in order to stage an attack against the
central authority of state B.
Will self-defense be available to the victim state in such a way it is
authorized to use force against state a? No question, if they will use self-
defense against the ACTUAL aggressors, kadtong mga insurgents or rebels
within the state. However will it justify an armed attack against the
supporting state? NOT YET SETTLED.
Nicaragua (Merits) on Indirect Aggression:
“training or providing economic or military or logistical or other assistance
to rebels fighting against the central authority in another country may be
regarded as a threat or use of force or as an intervention in the internal or
external affairs of another State. However, it does not amount to armed
attack (unless the provision of significant military support to an insurgency
is major and demonstrable” (p.195). “Hence, it does not entitle the target
State to respond by self-defense against the assisting State” (p. 195, 228,
and 230)
What’s the legal basis for you answer? If you cannot use force against
State A, what are the remedies available to the victim State? Is there a
violation of International Law (IL) if another State assists—financially,
statistically, logistically—support rebel groups in another country? If yes,
would that warrant the use of force in the exercise of self-defense?
[DBL note: this problem might come out in the BAR] State A, State B
usually belong to one territory, but since they belong to different
ethnicities, they were divided into two groups. Eventually, for economic
reasons, these two States became hostile to each other; there were cross-
border encounters. Eventually, because there were minorities in State B,
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State A began supporting, financing, training the minorities in State B.
What are the IL aspects in that problem?
Indeed it is a violation of IL: the principle of non-intervention, and the
principle of prohibition against the use of force. You have to go back to
the landmark pronouncement of the ICJ in the case of Nicaragua:
“training or providing economic or military or logistical or other assistance
to rebels fighting against the central authority in another country may be
regarded as a threat or use of force or as an intervention in the internal or
external affairs of another State. However, it does not amount to armed
attack (unless the provision of significant military support to an insurgency
is major and demonstrable” (p.195). “Hence, it does not entitle the target
State to respond by self-defense against the assisting State” (p. 195, 228,
and 230).
The facts of the case were as follows: US attacked Nicaragua on the
ground that Nicaragua provided economic, military or logistical assistance
to the rebels in El Salvador. When US attacked Nicaragua, US claimed that
there was an armed attack by Nicaragua against El Salvador, and El
Salvador allegedly sought the help of US, invoking self-defense.
ICJ held that there should be an existence of an armed attack by Nicaragua
against El Salvador that would justify the use of force purportedly pursuant
to self-defense.
What should the victim State do? Like in this case, what could El Salvador
do if US is its ally, what should they do if they cannot use force under self-
defense (against this indirect aggression)? They are not entirely helpless.
There are various ways in which force can be used, provided that it is upon
the authority of the Security Council (SC). There is a different armed attack
threshold requirement for armed attack in self-defense from armed attack
that would warrant use of force upon the instance of the SC. To repeat, the
force amounting to armed attack that would justify the use of force
pursuant to self-defense, therefore an exception to art. 2(4), has a high
threshold for armed attack, mere provision of economic, military, logistical
training will not amount to armed attack; even small scale armed attack will
not warrant self-defense. So the remedy here is UN through the SC will ask
or authorize another State to help the victim State.
In that case therefore, it would have been better if US secured the
authorization of SC in order to quell the intervention of Nicaragua when it
supported the rebels in El Salvador. Remember that the scope of authority
of the SC does not even require actual aggression, as long as there is
threat to peace, thus this remedy should have been availed of rather than
invoking self-defense. All other types of “forces” lower than that
contemplated in art. 51 would warrant an action on the part of the SC, but
NOT because of the exercise of the right to self-defense.
On Collective Self-Defense
 Recognized in Art. 51 of the Charter
 In support of another State which has suffered an armed attack
 The intervening State must not be itself a victim of the armed
attack
 Requires (1) prior “bond” (e.g. treaty) or (2) request or previous
consent of the victim State
 It is for the victim State to establish that it has been militarily
attacked (see Nicaragua [merits])
The idea of collective self-defense (CSD) usually presupposes a situation
wherein another State comes to the aid of a victim State, meaning, the one
using force should not be itself the object of the attack (the victim),
otherwise it would be individual self-defense and not a CSD. If the State is
not the object of the attack, and it just came to the rescue of this victim
State, that’s an instance of CSD. Generally, CSD would be justified if there
73
is (1) an agreement, i.e., a prior “bond” (e.g. treaty between the victim
State and the helping State) OR (2) the victim State makes a request or
gives previous consent to a helping State; it is also for the victim State to
establish that it has been militarily attacked not by the one aiding
(Nicaragua case). In other words, use of force of another State in favor of a
victim State, cannot be justified if it is without the consent of the victim
State because that would qualify as an “intervention”. Remember, there are
three categories of law is PIL: law of peace, law of war, and law of
neutrality. States not involved in armed conflict should observe certain rules
on neutrality. If the helping State intervenes even without the consent of
the victim State, it could be considered as violation of the laws of neutrality,
and considered as an intervention.
ARMED REPRISALS AGAINST UNLAWFUL SMALL-SCALE USE OF
FORCE
 Literally, not allowed by Art. 51 in relation to Art. 2(4) of UN Charter
 Has been declared by various Security Council and General Assembly
Resolutions as “incompatible with the purpose and principles of the
United Nations”
 Commentators and experts suggest that the armed reprisal should be
categorized into: (1) Retaliatory armed force; and (2) “On-the-spot-
reaction” (applying ‘state of necessity’ doctrine, but requiring
‘proportionality’ and ‘immediacy’)
Art 51 presupposes that the armed attack should be massive. So small
scale armed attack would not justify the use of self-defense. It is not
allowed under Art 51 in relation to Art. 2(4) prohibiting the use of force.
In many SC (Security Council) and General Assembly resolutions, gina-
declare nani sila class armed reprisals as a contrary to the purposes of
principles of the UN charter.
That is why, in order to justify and therefore that you know that it may be
justified, armed reprisal in response to small scale use of force, e-
categorize nimo ang reprisal:
Number one, (1) there is reprisal that is considered retaliatory. Retaliatory
armed force. Ang idea is, the retaliation or reprisal have been may after a
considerable length of time from the time small scale armed attack have
been made that is why it is retaliatory. Medyo delayed ang response ba, as
opposed to what we call (2) on-the-spot-reaction. Some commentators will
give us some example kana daw magpatrol ang military near sa border,
attackon dayon na sya sa neighboring and enemy state, justifiable, right
away, right there and then mo use sila og force against attacking forces of
the enemy state. And it will be justified under the State of Necessity
doctrine provided that, again, as the requirements every time armed forces
used, there should be proportionality and immediacy. In other words, use
of force in armed reprisals, may be valid only in a situation where it is
called on-the-spot-reaction. May immediacy ba, of course you follow
proportionality. Di pud na gi-attack of troops sa border by use of, kanang
dili mga artilleries, kanang mga handguns lang, di pud pwede na tirahan
nimog missile as a retaliation because you have to comply every time basta
use of force with the requirement of proportionality.
So, akong balikon, kanang small scale use of force, that will not warrant
use of force pursuant for self-defense but it will warrant use of force
provided it is categorize as on-the-spot because there was immediacy
requirement. Use of force there may be justified by the state of necessity
doctrine. It is a state of necessity doctrine ra rather than some sort of
anticipatory self-defense.
Pero kung ang iyang armed reprisal delayed use of force, there may not be
justified anymore. If the use of force is in the category of retaliatory armed
reprisal then it is unlawful because of Art. 2 par. 4 of the UN charter
prohibiting the use of force. Commentators say that the other kind of
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armed reprisal should be justifiable for terrorism for, number one state of
necessity doctrine. Second one it is not a sound policy to delay responses
because for all we know that is the beginning of a massive armed attack.
So you don’t expect victim state to wait and see kung unsa ni siya, small
scale or massive, nya huwaton nya after one month, ai massive so I can
use of force pursuant to self-defense ky massive naman siya.
Commentators say, ok na kung naay immediacy. Ky kung naay immediacy
then maapply nimo ang state of necessity doctrine. Pero kung delayed siya,
naa pa ky remedies during that time na wa pa ni take og action against the
small scale armed attack against your state. You can go through peaceful
processes attack even if gi-attact naka by use of force, go to SC then go to
UN. Pero after a long period of time,wa pa ni react dn usa pa ka ni use of
force dn it becomes retaliatory, prohibited na xa under art. 2 par. 4. What I
am saying now is wa ky koy nagdiscuss obvious basic concept because I
assume nga naa na nato, we already know this.
In relation to all of this, I think it’s important to know international
huminatarian law kay I was supposedly planning to show other issues like
environmental law, human right. Naghisgot naman jud tag war, e-relate
nalang nato ning IHL kay related rman.
INTERNATIONAL HUMANITARIAN LAW
So those issues, as I have said, are in the category of jus ad bellum rules
engaging in war. Now, when there is armed conflict or war, we also have
another category of rules governing the conduct of hostilities and this
where we talk about IHL. That’s jus in bello not jus ad bellum.
Means of Waging War and Criminal Responsibility: Jus In Bello
1. Purposes/objectives of International Humanitarian Law (IHL)
2. Meaning of “armed conflict” to which IHL applies
3. What if there is no “armed conflict”?
4. Fundamental principles that govern conduct of war;
(a) Principle of Distinction;
(b) Principle of Proportionality; and
(c) Principle of Precaution
5. Means and Methods of Warfare
6. Other IHL Rules (Sick and Wounded, Detention, etc)
7. Criminal Responsibility
So, here let’s talk about in order to understand the purposes of IHL, let’s
talk about armed conflict which the IHL would apply because IHL does not
apply to all kinds of armed conflict, only to certain categories of armed
conflict. So that, if there is no armed conflict as understood in IHL what
would be the remedies and what would be the situations. There are so
many rules on IHL, but for purposes of PIL bar exam, the three important
principles are the usual questions ask in bar exams although naay mga
stray questions sometimes. Let’s talk about the three basic principles in
IHL: principle of distinction, proportionality and precaution. The rule is very
simple but if you take a look into specific provisions medyo complicated xa
actually.
Let’s talk about rules in warfare and then we relate also these principles to
other rules. For example, rules on the sick and the wounded, detention,
displacements and other concerns and then we finally end with criminal
responsibility.
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International Humanitarian Law (IHL) or Law on Armed Conflict
- IHL or jus in bello, not jus ad bellum. It governs the laws of
armed conflict or law of war. It primarily seeks to protect
civilian population and objects (to “humanize” the effects
of war) (calls for balancing of “military necessity” and
“humanity”). It covers international or non-international armed
conflict, but not mere internal disturbances.
- E.g. the 1949 Geneva Conventions and Additional Protocols
prohibit the “attack on civilian population or objects as such”
during armed conflict.
Let’s talk on the law on armed conflict, that’s the other term of IHL. It
governs the law on armed conflict in times of war.
Purpose is to seek or protect civilian population or objects from the effects
of war that’s why it is called the IHL to humanize the effects of war and
therefore the study of IHL calls for a balancing of the concept of military
necessity because the moment there is armed conflict or war, you know
and it is to be understood, that the object or the main objective of war is
really to defeat the opponent. So means and methods of warfare were
really want to be regulated for that purpose if you want to humanize the
effects of war and therefore so you have to balance the military necessity
and humanity because some means and methods of warfare may disregard
human dignity. A good example of which is the use of weapons that will
cause unnecessary sufferings. Maka-use man kag weapon because what is
the object of war? dba the object of war is to achieve peace and the only
way to achieve peace is to defeat the opponent. There are really methods
of warfare but IHL governs these methods in order to humanize the effects
of war.
It covers 2 kinds of armed conflict: international and non-international
armed conflicts. Excluded are internal disturbances, such as riots or
demonstrations and other similar internal disturbances, lacking in intensity
and lacking in organization.
What is International Criminal Law(ICL),on the other hand, because it is
another category of law that is more or less interrelated with IHL.
International Criminal Law (ICL) is a body of international law
that prohibits certain categories of conduct viewed as serious atrocities and
to make the perpetrators of such conduct criminally accountable. It defines
crimes, its elements, and individual criminal responsibility.
E.g. Rome Statute creating the International Criminal Court (ICC) in
the Hague which defines and punishes genocide, war crimes, crimes
against humanity, and aggression.
In the course of armed conflict, certain acts of atrocities have been
categorized as crimes committed during war. Related xa sa IHL in the sense
nga ang IHL nagregulate xa sa means and methods of warfare and at the
same time there is another category of law that is created or established
for the purpose of prosecuting those who have committed atrocities during
armed conflict. So it’s another category in ICL.
So lain ang IHL og lain sa ang ICL. As defined, it is a body of international
law that prohibits certain categories of conduct viewed as serious atrocities
and to make the perpetrators may be held liable. In the past ICL scattered
na xa in various documents, now we have one document on ICL and that is
the Rome Statute created by the Int’s Criminal Court (ICC).
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International Human Rights Law (IHRL) vs. IHL
 IHRL refers to inalienable fundamental rights to which a
person is inherently entitled; while IHL refers to the rights of
persons affected by armed conflicts
 IHRL applies at all times; IHL applies to armed conflicts
 Some rights in IHRL may be limited or suspended (e.g.
freedom of expression) and some are absolute or non-
derogable (e.g. right against torture)
1st distinction. So International human rights law will apply to all persons.
Why? Because IHL (International Humanitarian Law) is limited in scope; it
will only apply to those persons affected by armed conflict.
2nd distinction. Necessarily, International human rights law applies AT ALL
TIMES; in times of peace, and in times of war. IHL is specific; only in times
of war. But there are however rights that in fact some commentators would
say that broader ang international human rights law, mas specific ang IHL.
But may area sila class na mag overlap. Because if you look at my notes
here, some rights in international human rights law may be limited or
suspended, an example of which is freedom of expression. So when for
example in times of war, the state or any authority will limit your right to
travel, for example, or to peaceably assemble, like bawal na mag group in
times of war, or probably curfew policies. So pwede ma limit ang some of
the rights.
BUT- this is where mag converge ang IHRL ug IHL – there are NON-
DEROGABLE RIGHTS that are observed even in times of war. So in IHRL,
iyang categories kay derogable and non-derogable. Ang kaning derogable
rights ma limited ni in times of war. To this extent, there’s a difference
between IHRL and IHL. But mag converge sila in regard to NON-Derogable
right such as the right against torture, the prohibition against inhumane
treatment of prisoners, observed in IHRL also observed in IHL.
If you are to distinguish the two, ayaw lang pud ng “applicable both in
times of peace and war ang IHRL, and IHL in times of war.” Ayaw.
Probably, the examiner will try to see if you have an idea nga mag
OVERLAP na sila. The above answer is too simplistic. Whereas if you say
nga naay areas na mag converge ang IHRL ug IHL, then that means lawm2
imong understanding sa two.
*Sir gives advice: One skill you have to learn is to have the eye and the
brain of a surgeon. Tagaan ug general problem, ay sus, general ra kaayo
pag answer. Mura bitaw ang problem para ra mag trigger unsa ang topic all
about and tagaan rakas topic, dili bitaw i.solve ang issues sa problem. That
might probably ensure a passing score in the bar, but mas mayo unta sobra
pas pasar.
Let’s take a look at the types of armed conflict. (Sir: But na discuss naman
ni nato. Let’s go straight to the principles.)
So who and what are the protected persons and objects in IHL; Civilians
and Civilian Objects. This we will appreciate the moment we talk about the
different principles in IHL.
Protected Persons and Objects in IHL:
1. Civilians – persons who do not belong to armed forces and who
are not combatants
2. Civilian Objects – objects which are not military objectives.
“Military Objects” are those which by their nature, location,
purpose or use make effective contribution to military action and
advantage.
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 Civilian Population

Fundamental Principles in IHL Art. 51, AP I:

Principle of Distinction
Principle of Proportionality
Principle of Precaution
One is the Principle of DISTINCTION. Ayaw ra nang “we distinguish
civilians from combatants, and civilian objects and military objects.” Butangi
sad ug “IN THE CONDUCT OF MILITARY OPERATIONS, a distinction must
be made between these two: civilian population distinguished from
combatants, civilian objects distinguished from military objects.” Additional
Protocol 1 Article 48 governs the principle of distinction.
Principle of Distinction
“1. The civilian population and individual civilians shall enjoy
general protection against dangers arising from military operations. To
give effect to this protection, the following rules, which are additional
to other applicable rules of international law, shall be observed in all
circumstances.
2. The civilian population as such, as well as individual civilians,
shall not be the object of attack. Acts or threats of violence the
primary purpose of which is to spread terror among the civilian
population are prohibited.
3. Civilians shall enjoy the protection afforded by this section,
unless and for such time as they take part in hostilities.”

Art. 48, AP I: [NOTHING FOLLOWS]

“In order to ensure respect for and protection of the civilian

population and civilian objects, the Parties to the conflict shall at all times
distinguish between the civilian population and combatants and between CREDITS:

civilian objects and military objectives and accordingly shall direct their
operations only against military objectives.”
Lawful Targets
Arnado, Arriesgado, Atuel, Balt, Barcenas, Baya, Bayalas, Biton, Blanco, Borres, Bristol,
Caminade, Canada, Chan, Cinco, Cokaliong, Dente, Diao, Duran-Ybañez, Ediza, Fiel, Gallego,
Gan, Georfo, Gonzalodo, Gregorio, Lao, Lesigues, Lim, A., Lim, J., Lulu, Lumapas,
Medequiso, Menchavez, Narca, Nardo, Olvis, Ong, Ortezuela, Otero, Paglinawan, Pasatiempo,
Pena, Plaza, A., Plaza, L., Rejuso, Robles, Rosales, Salas, Sanchez, Santos, Semillano, Sotto,
Susvilla, Tampus, Tan-Yu, Tapia, Ubod, Uy, J., Uy, P.

 Combatants (except hors de combat)

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

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

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

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

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

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

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

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

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