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What are the steps in making a treaty? (Pimentel vs executive secretary)
The usual steps in the treaty-making process are: negotiation, signature,
ratification, and exchange of the instruments of ratification. The treaty may
then be submitted for registration and publication under the U.N. Charter,
although this step is not essential to the validity of the agreement as
between the parties.
Negotiation may be undertaken directly by the head of state but he now
usually assigns this task to his authorized representatives. These
representatives are provided with credentials known as full powers, which
they exhibit to the other negotiators at the start of the formal discussions. It
is standard practice for one of the parties to submit a draft of the proposed
treaty which, together with the counter-proposals, becomes the basis of the
subsequent negotiations. The negotiations may be brief or protracted,
depending on the issues involved, and may even "collapse" in case the
parties are unable to come to an agreement on the points under
consideration.
If and when the negotiators finally decide on the terms of the treaty, the
same is opened for signature. This step is primarily intended as a means of
authenticating the instrument and for the purpose of symbolizing the good
faith of the parties; but, significantly, it does not indicate the final consent of
the state in cases where ratification of the treaty is required. The document
is ordinarily signed in accordance with the alternat, that is, each of the
several negotiators is allowed to sign first on the copy which he will bring
home to his own state.
Ratification, which is the next step, is the formal act by which a state
confirms and accepts the provisions of a treaty concluded by its
representatives. The purpose of ratification is to enable the contracting
states to examine the treaty more closely and to give them an opportunity to
refuse to be bound by it should they find it inimical to their interests. It is for
this reason that most treaties are made subject to the scrutiny and consent
of a department of the government other than that which negotiated them.
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The last step in the treaty-making process is the exchange of the instruments
of ratification, which usually also signifies the effectivity of the treaty unless a
different date has been agreed upon by the parties. Where ratification is
dispensed with and no effectivity clause is embodied in the treaty, the
instrument is deemed effective upon its signature.
State Immunity from Suit (1994) No. 6;
Johnny was employed as a driver by the Municipality of Calumpit, Bulacan.
While driving recklessly a municipal dump truck with its load of sand for the
repair of municipal streets, Johnny hit a jeepney. Two passengers of the
jeepney were killed.
The Sangguniang Bayan passed an ordinance appropriating P300,000 as
compensation for the heirs of the victims. 1) Is the municipality liable for the
negligence of Johnny? 2) Is the municipal ordinance valid?
SUGGESTED ANSWER:
Yes, the Municipality of Calumpit is liable for the negligence of its driver
Johnny. Under Section 24 of the Local Government Code, local government
units are not exempt from liability for death or injury to persons or damage
to property.
ALTERNATIVE ANSWER: No, the municipality is not liable for the negligence
of Johnny, the prevailing rule in the law of municipal corporations is that a
municipality is not liable for the torts committed by its regular employees in
the discharge of governmental functions. The municipality is answerable only
when it is acting in a proprietary capacity.
In the case at bar, Johnny was a regular employee of the Municipality of
Calumpit as driver of its dump truck; he committed a tortious act while
discharging a governmental function for the municipality, ie., driving
recklessly the said truck loaded with sand for the repair of municipal streets.
Undoubtedly then, Johnny as driver of the dump truck was performing a duty
or task pertaining to his office. The construction or maintenance of public
streets are admittedly governmental activities. At the time of the accident,
Johnny was engaged in the discharge of governmental functions.
Hence, the death of the two passengers of the jeepney -tragic and deplorable
though it may be - imposed on the municipality no duty to pay monetary
compensation, as held in Municipality of San. Fernando v. Firme, 195 SCRA
692.
State Immunity from Suit (1999)
A. 1.) What do you understand by state immunity from suit? Explain.
(2%)
2.) How may consent of the state to be sued be given? Explain. (2%)
SUGGESTED ANSWER:
1.) STATE IMMUNITY FROM SUIT means that the State cannot be sued
without its consent. A corollary of such principle is that properties used by
the State in the performance of its governmental functions cannot be subject
to judicial execution.
2.) Consent of the State to be sued may be made expressly as in the case of a
specific, express provision of law as waiver of State immunity from suit is not
inferred lightly (e.g. C.A. 327 as amended by PD 1445} or impliedly as when
the State engages in proprietary functions (U.S. v. Ruiz, U.S. v. Guinto) or
when it files a suit in which case the adverse party may file a counterclaim
(Froilan v. Pan Oriental Shipping) or when the doctrine would in effect be
used to perpetuate an injustice (Amigable v. Cuenca, 43 SCRA 360).
Contiguous Zone vs. Exclusive Economic Zone (2004)
Distinguish briefly but clearly between: The contiguous zone and the
exclusive economic zone.
SUGGESTED ANSWER:
CONTIGUOUS ZONE is a zone contiguous to the territorial sea and extends up
to twelve nautical miles from the territorial sea and over which the coastal
state may exercise control necessary to prevent infringement of its customs,
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fiscal, immigration or sanitary laws and regulations within its territory or
territorial sea. (Article 33 of the Convention on the Law of the Sea.)
The EXCLUSIVE ECONOMIC ZONE is a zone extending up to 200 nautical miles
from the baselines of a state over which the coastal state has sovereign
rights for the purpose of exploring and exploiting, conserving and managing
the natural resources, whether living or nonliving, of the waters superjacent
to the seabed and of the seabed and subsoil, and with regard to other
activities for the economic exploitation and exploration of the zone. (Articles
56 and 57 of the Convention on the Law of the Sea.)
Delegation of Powers; Completeness Test; Sufficient Standard Test (Q6-2005)
(1) The two accepted tests to determine whether or not there is a valid
delegation of legislative power are the Completeness Test and the Sufficient
Standard Test. Explain each. (4%)
SUGGESTED ANSWER:
Under the COMPLETENESS TEST, a law must be complete in all its terms and
provisions when it leaves the legislature that nothing is left to the judgment
of the delegate. The legislature does not abdicate its functions when it
describes what job must be done, who is to do it, and what is the scope of his
authority. However, a delegation of power to make the laws which
necessarily involves a discretion as to what it shall be may not
constitutionally be done. (Edu v. Ericta, G.R. No. L-32096, October 24, 1970)
Under the SUFFICIENCY OF STANDARDS TEST, the statute must not only
define a fundamental legislative policy, mark its limits and boundaries, and
specify the public agency to exercise the legislative power. It must also
indicate the circumstances under which the legislative command is to be
effected. To avoid the taint of unlawful delegation, there must be a standard,
which implies at the very least that the legislature itself determines matters
of principle and lays down fundamental policy. (Free Telephone Workers
Union v. Minister of Labor, G.R. No. L-58184, October 30, 1981)
ALTERNATIVE ANSWER:
COMPLETENESS TEST. The law must be complete in all its essential terms and
conditions when it leaves the legislature so that there will be nothing left for
the delegate to do when it reaches him except to enforce it. (See ITS v. Ang
Tang Ho, G.R. No. L-17122, February 27, 1922)
SUFFICIENT STANDARD TEST. A sufficient standard is intended to map out
the boundaries of the delegate's authority by defining the legislative policy
and indicating the circumstances under which it is to be pursued and
effected; intended to prevent a total transference of legislative power from
the legislature to the delegate. The standard is usually indicated in the law
delegating legislative power. (See Ynot u. Intermediate Appellate Court, G.R.
No. 74457, March 20, 1987)
Boundary Dispute Settlement; Authority; Jurisdiction (1999) No V - C. What
body or bodies are vested by law with the authority to settle disputes
involving: (1) two or more towns within the same province; (1%) (2) two or
more highly urbanized cities. (1%)
SUGGESTED ANSWER:
1.) Under Section 118(b) of the Local Government Code, boundary disputes
involving two or more municipalities within the same province shall be
settled by the sangguniang panlalawigan concerned.
2.) Under Section 118(d) of the Local Government Code, boundary disputes
involving two or more highly urbanized cities shall be settled by the
sangguniang panlungsod of the parties.
Boundary Dispute Resolution; LGU; RTC (2010)
No.XIII.c. Boundary disputes between and among municipalities in the same
province may be filed immediate with the RTC SUGGESTED ANSWER:
FALSE. Should be referred for settlement to the SANGGUNIANG
PANLALAWIGAN concerned (see. Sec. 118, RA No.7160; Municipality of Sta.
Fe vs. Municipality of Artao, 533 SCRA 586 [2007]).
Commission on Human Rights; Power to issue TRO (1997)
About a hundred people occupied a parcel of land in Quezon City belonging
to the city government and built shanties thereon which they utilized for
dwelling, sari-sari stores, etc. The City Mayor issued an order directing the
occupants to vacate the structures within five days from notice, otherwise
they would be evicted and relocated and their shanties removed, in order
that the parcel of land could be converted into a park for public use and
enjoyment. The inhabitants of the parcel of land complained to the
Commission on Human Rights urging that the Mayor of Quezon City be
stopped from doing what he has threatened to do. The Commission on
Human Rights, after conducting an investigation and finding that the shanties
of petitioners were already being demolished by then, ordered the Quezon
City Mayor and persons Implementing his order to cease and desist from
demolishing petitioners' shanties under pain of contempt. What have you to
say on the validity of the actuation of the Commission on Human Rights in
relation to that of the Quezon City Mayor?
SUGGESTED ANSWER:
The actuation of the Commission on Human Rights is void. In Simon vs.
Commission on Human Rights, 229 SCRA 117. the Court held that the
Commission on Human Rights has no power to issue a restraining order or a
writ of injunction and has no power to cite for contempt for violation of the
restraining order or a writ of preliminary injunction. The cease and desist
order, according to the Court, is a semantic Interplay for a restraining order.
Its power to cite for contempt should be understood to apply only to
violations of its adopted operational guidelines and rules of procedure
essential to carry out its investigatorial powers, which it is constitutionally
authorized to adopt.
Commission on Human Rights; Power; Limitations (Q4-2005)
Squatters and vendors have put up structures in an area intended for a
People's Park, which are impeding the flow of traffic in the adjoining
highway. Mayor Cruz gave notice for the structures to be removed, and the
area vacated within a month, or else, face demolition and ejectment. The
occupants filed a case with the Commission on Human Rights (CHR) to stop
the Mayor's move.
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The CHR then issued an "order to desist" against Mayor Cruz with warning accordance with the procedure and sanctions provided for in the Rules
that he would be held in contempt should he fail to comply with the of Court.
desistance order. When the allotted time lapsed, Mayor Cruz caused the
demolition and removal of the structures. Accordingly, the CHR cited him for
contempt. (5%)
READ THESE CASES!
(a) What is your concept of Human Rights? Does this case involve
violations of human rights within the scope of the CHR's Veterans Federation Party v. Comelec [Oct. 6, 2000]
jurisdiction?
ISSUES:
1. Is the 20% allocation mandatory? Should the 20% allocation for
party-list be filled up completely all the time?
SUGGESTED ANSWER: Under the Universal Declaration of Human
2. Are the 2% threshold and the 3-seat limit constitutional?
Rights, the International Covenant on Economic, Social and Cultural
3. How should the additional seats be determined?
Rights and International Covenant on Civil and Political Rights, the
scope of human rights includes "those that relate to an individual's
social, economic, cultural, political and civil relations... along with what
is generally considered to be his inherent and inalienable rights,
encompassing almost all aspects of life."
BANAT VS. COMELEC
In the case at bar, the land adjoins a busy national highway and the
construction of the squatter shanties impedes the flow of traffic. The Issues:
consequent danger to life and limb cannot be ignored. It is paradoxical that a
right which is claimed to have been violated is one that cannot, in the first 1. Whether or not the 20% allocation for party-list
place, even be invoked, if it is, in fact, extant. Based on the circumstances representatives mandatory or a mere ceiling.
obtaining in this instance, the CHR order for demolition do not fall within the 2. How are party-list seats allocated?
compartment of human rights violations involving civil and political rights
3. Whether or not major political parties are allowed to
intended by the Constitution. (Simon v. Commission on Human Rights, G.R.
participate in the party-list elections
No. 100150, January 5, 1994)

B) Can the CHR issue an "order to desist" or restraining order?

SUGGESTED ANSWER:

The CHR may not issue an "order to desist" or restraining order. The
constitutional provision directing the CHR to provide for preventive measures
to those whose human rights have been violated or need protection may not
be construed to confer jurisdiction on the Commission to issue a restraining
order or writ of injunction for, it that were the intention, the Constitution
would have expressly said so. Jurisdiction is conferred only by the
Constitution or by law. It is never derived by implication. (Export Processing
Zone Authority v. Commission on Human Rights, G.R. No. 101476, April 14,
1992)

C) Is the CHR empowered to declare Mayor Cruz in contempt? Does

it have contempt powers at all?

SUGGESTED ANSWER:

The CHR does not possess adjudicative functions and therefore, on its
own, is not empowered to declare Mayor Cruz in contempt for issuing
the "order to desist." However, under the 1987 Constitution, the CHR is
constitutionally authorized, in the exercise of its investigative functions,
to "adopt its operational guidelines and rules of procedure, and cite for
contempt for violations thereof in accordance with the Rules of Court."
Accordingly, the CHR, in the course of an investigation, may only cite or
hold any person in contempt and impose the appropriate penalties in