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2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval

lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos POLITICAL LAW That branch of public law which deals with the organization and operations of th e governmental organs of the State and defines the relations of the State with t he inhabitants of its territory. Scope/Divisions of Political Law: 1. Constitutional Lawthe study of the maintenance of the proper balance between authority as represented by the three inherent powers of the state and liberty a s guaranteed by the Bill of Rights. 2. Administrative Law-- That branch of public law which fixes the organizati on, determines the competence of administrative authorities who executes the law , and indicates to the individual remedies for the violation of his right. 3. Law on Municipal Corporations 4. Law of Public Officers 5. Elections Law Basis: 1. 1987 Constitution 2. 1973 and 1935 Constitutions 3. Organic laws made to apply to the Philippines a. Philippine Bill of 1902 b. Jones Law of 1916 c. Tydings-McDuffie Law of 1934 4. Statutes, executive orders and decrees, and judicial decisions 5. US Constitution Constitution legislation direct from the people; states general principles; Statute

intended not merely to meet existing conditions; it is the fundamental law of the State legislation from the peoples representative; provides the details of the subject matter of which it treats; intended primarily to meet existing conditions only; it conforms to the Constitution

PHILIPPINE CONSTITUTION 1

2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Constitutionit is the document which serves as the fundamental law of the State; that body of rules and maxims in accordance with which the power of sovereignty are habitually exercised. That written instrument enacted by direct action of the people by which the fund amental powers of the government are established, limited and defined, and by wh ich those powers are distributed among the several departments for their safe an d useful exercise for the benefit of the body politic. It is the basic and paramount law to which all other laws must conform and to wh ich all persons, including the highest officials of the land, must defer. No act shall be valid, however noble its intention, if it conflicts with the Constitut ion. The Constitution must ever remain supreme. All must bow to the mandate of t his law. Right or wrong, the Constitution must be upheld as long as the sovereig n people have not changed it. Classification: 1. Written or unwritten Written Unwritten -one whose precepts are embodied in one document or set of documents -consists of rules which have not been integrated into a single, concrete form but are scattered in various sources Examples: a. statutes of fundamental character; b. judicial decisions; c. commentaries of publicists; d. customs and traditions; e. certain common law principles 2. Enacted (conventional) or Evolved (Cumulative) Enacted (conventional) Evolved (Cumulative) -formally struck off at a definite time and place following a conscious or delib erate effort taken by a constituent body or ruler -the result of political evolution, not inaugurated at any specific time but cha nging by accretion rather than by any systematic method 3. Rigid or Flexible Rigid 2 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R

Flexible

review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos -one that can be amended only by a formal and usually difficult process -one that can be changed by ordinary legislation The Philippine Constitution is written, conventional and rigid. It is embodied i n one document and can be amended only by a formal and usually difficult process . Interpretation: 1. Verba Legiswhenever possible, the words used in the Constitution must be give n their ordinary meaning except where technical terms are employed. 2. When there is Ambiguityratio legis et anima--A doubtful provision shall be ex amined in the light of the history of the times and the conditions and circumsta nces under which the Constitution was framed. (Civil Liberties Union vs. Executi ve Secretary, 194 SCRA 317) 3. Ut magis valeat quam pereatthe Constitution has to be interpreted as a whole. (Francisco vs. HR, G.R. No. 160261, November 10, 2003) If the plain meaning of the word is not found to be clear, resort to other aids is availableconstrue the Constitution from what appears upon its face. The proper i nterpretation, therefore, depends more on how it was understood by the people adopting it than in the framers understanding thereof. In case of doubt, the provision should be considered as self-executing ; mandatory rather than directory; and prospective rather than retroactive. Self-executing provisionone which is complete in itself and becomes operative wit hout the aid of supplementary or enabling legislation, or that which supplies a sufficient rule by means of which the right it grants may be enjoyed or protecte d. Essential Qualities of the Written Constitution: 1. Broad; 2. Brief; and 3. Definite.

Essential parts of a good written Constitution:

3 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R

review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos a. ConstitutionofLibertysets forth the fundamental civil and political rights o f the citizens and imposes limitations on the powers of the government as a mean s of securing the enjoyment of those rights. e.g. Bill of Rights b. Constitution of Governmentoutlines the organization of the government, enumerates its powers, lays down certain rules relative to its administration an d defines the electorate. e.g. Legislative, Executive and Judicial Departments, Constitutional Commissions c. Constitution of Sovereigntythe provisions pointing out the mode or procedur e in accordance with which formal changes in the fundamental law may be brought about. e.g. Art. XVII-Amendments or Revisions Effects of Declaration of Unconstitutionality: 2 Views: a. ORTHODOX VIEW i. an unconstitutional act is not a law; ii. it confers no rights; iii. it imposes no duties; iv. it affords no protection; v. it creates no office; vi. it is inoperative, as if it had not been passed at all. b. MODERN VIEWCourts simply refuse to recognize the law and determine the rights of the parties as if the statute had no existence. Certain legal effects of the statute prior to its declaration of unconstitutionality may be recognized. Thus , a public officer who implemented an unconstitutional law prior to the declarat ion of unconstitutionality cannot be held liable (Ynot vs. IAC). Partial Unconstitutionality Requisites: a. The legislature must be willing to retain the valid portion(s), usually show n by the presence of a separability clause in the lawINTENT OF THE LEGIS LATIVE; and b. The valid portion can stand independently as lawINDEPENDENCE OF THE PR OVISIONS.

PREAMBLE

4 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

WE, THE SOVEREIGN FILIPINO PEOPLE, IMPLORING THE AID OF ALMIGHTY GOD, IN ORDER TO BUILD A JUST AND HUMANE SOCIETY AND ESTABLISH A GOVERNMENT THAT SHALL EMBODY OUR IDEALS AND ASPIRATIONS, PROMOTE THE COMMON GO OD, CONSERVE AND DEVELOP OUR PATRIMONY, AND SECURE TO OURSELVES AND OUR POSTERIT Y THE BLESSINGS OF INDEPENDENCE

AND DEMOCRACY UNDER THE RULE OF LAW AND A REGIME OF TRUTH, JUSTICE, FREEDOM, LOV E, EQUALITY, AND PEACE, DO ORDAIN AND PROMULGATE THIS CONSTITUTION.

The Preamble is not a source of power or right for any department o f government. It sets down the origin, scope, and purpose of the Constitution. I t bears witness to the fact that the Constitution is the manifestation of the so vereign will of the Filipino people. The identification of the Filipino people as the author of the constitution call s attention to an important principle: that the document is not just the work of representatives of the people but of the people themselves who put their mark a pproval by ratifying it in a plebiscite. 1. It does not confer rights nor impose duties. 2. Indicates authorship of the Constitution; enumerates the primary aims and asp irations of the framers; and serves as an aid in the construction of the Constit ution.

ARTICLE I NATIONAL TERRITORY 5 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos The national territory comprises the Philippine archipelago, with all the island s and waters embraced therein, and all other territories over which the Philippi nes has sovereignty or jurisdiction, consisting of its terrestrial, fluvial and aerial domains, including its territorial sea, the seabed, the subsoil, the insu lar shelves, and other submarines areas. The waters around, between and connecti ng the islands of the archipelago, regardless of their breadth and dimensions, f orm part of the internal waters of the Philippines. Two (2) Parts of the National Territory: 1. The Philippine archipelago with all the islands and waters embraced therein; and 2. All other territories over which the Philippines has sovereignty or jurisdic

tion. Do you consider the Spratlys Group of Islands as part of Philippine Archipelago ? Spratlys Group of Islands is not part of the Philippine Archipelago b ecause it is too far away from the three main islands of the Philippines. It is found, geographically, almost in the middle of the South China Sea. Itisnotparto fthePhilippineArchipelago. Historically, when we talk about Philippine Archipela go, we refer to those islands and waters that were ceded by the Spain to the Uni ted States by virtue of Treaty of Paris in 1898. And that did not include the Sp ratlys Group of Islands yet. Under the treaty, the islands that were ceded by Sp ain were identifiedthe main islandsLuzon, Visayas and Mindanao. Clearly, it did no t include the Spratlys Group of Islands. Spratlys Group of Islands was only discovered sometime in the 1950s by a Filipino , Tomas Cloma. The latter waived his rights over the islands in favor of the Phi lippine Government. In effect, the government stepped into the shoes of the disc overer. By then President Marcos, what he did the moment Tomas Cloma waived his rights over the Spratlys Group of Islands, is to have the islands i mmediately occupied by Philippine troops. He then issued PD 1596, constituting t he Spratlys Group of Islands as a regular municipality claiming it the Municipal ity of Kalayaan placing it under the Province of Palawan. And then he had the el ections immediately held in the islands so from that time on until now, we continue to hold elections there. The Philippine exercises not only jur isdiction but also sovereignty over the Spratlys Group of Islands, yet it is not part of the Philippine Archipelago. Geographically, it is too far away from the Philippine Archipelago. On May 20, 1980, the Philippines registered its claim with the UN Secretariat. The Philippine claim to the islands is justified by reason of history, indispens able need,

6 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos and effective occupation and control. Thus, in accordance with the international law, the Spratlys Group of islands is subject to the sovereignty of the Philippines. Do you consider the Spratlys group of Islands as part of our National Territory? Yes. Article I of the Constitution provides: The national territory comprises the Philippine archipelago, x x x, and all other territories over which the Philippi nes has sovereignty or jurisdiction, x x x. The Spratlys Group of islands falls u nder the second phrase and all other territories over which the Philippines has s overeignty or jurisdiction. It is part of our national territory because Philippi nes exercise sovereignty (through election of public officials) over Spratlys Gr oup of Islands. What was the basis of the Philippines claim over the Spratlys? Through discovery of Tomas Cloma and occupation

Modes of acquiring territories: 1. Discovery and Occupationwhich are terra nullius (land belonging to no one) Do ctrine of Effective Occupationdiscovery alone is not enough. Mere discovery gives only an inchoate right to the discoverer. For title to finally vest, discovery must be followed by effective occupation in a reasonable time and attestation of the same. 2. Cession by Treaty. Examples are Treaty of Paris, treaty between France and U S ceding Louisiana to the latter and treaty between Russia and US ceding Alaska to the latter; 3. Prescriptionwhich is a concept under the Civil Code. Territory may also be acquired through continuous and uninterrupted possession over a long pe riod of time. However, in international law, there is no rule of thumb as to the length of time for acquisition of territory through prescription. In this conne ction, consider the Grotius Doctrine of immemorial prescription, which speaks of uninterrupted possession going beyond memory. 4. Conquest or Subjugation (conquistadores)this is no longer recognized, inasmuch as the UN Charter prohibits resort to threat or use of force against th e territorial integrity or political independence of any state; and 5. Accretionanother concept in the Civil Code. It is the increase in the land ar ea of the State, either through natural means, or artificially, through human la bor. Philippine Archipelago: 1. Treaty of Paris, December 10, 1898Cession of the Philippine Islands by Spain to the United States; 2. Treaty between Spain and US at Washington, November 7, 1900inclusion of Cagay an, Sulu and Sibuto; 7 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos 3. Treaty between US and GB, January 2, 1930inclusion of Turtle and Mangsee Islands. Other territories over which the Philippines has sovereignty or jurisdiction: 1. Batanes(1935 Constitution); 2. Those contemplated under Article I, 1973 Constitutionbelonging to the Philippines by historic right or legal title; 3. PD 1596, June 11, 1978-- constituting the Spratlys Group of Islands as a regu lar municipality claiming it the Municipality of Kalayaan, placing it under the Province of Palawan. xxx The waters around, between and connecting the islands of the archipelago, rega rdless of their breadth and dimensions, form part of the internal waters of the Philippines. This second sentence of Article I is not the Archipelago Doctrine. This is only our restatement/reaffirmation of our adherence to the Archipelago Doctri ne simply because we are an archipelago consisting of 7,107 islands. It is essen tial for our national survival that we adhere to the archipelago principle. Archipelago Doctrinemerely emphasizes the unity of lands and waters. It is a body of waters interconnected with other natural features. Under the United Nation Convention on the Law of Sea (UNCLOS), it consists of drawing imaginary

baseline connecting the outermost islands of the archipelago in which all water s, islands is considered as one integrated whole. An archipelago is defined as g roup of islands, interconnecting waters and other natural features which are so closely interrelated that such islands, waters and natural features form an intr insic geographical, economical and political entity, or which historically been regarded as such. Correlate this doctrine to right of innocent of passage, right of arrival under stress and UNCLOS requiring the designation of archipelagic seaways so that fore ign vessels may pas through an archipelago.

2 Kinds of Archipelago: 1. Coastal Archipelagosituated close to a mainland and may be considered a part t hereof. 2. Mid-Ocean Archipelagosituated in the ocean at such distance from the coasts of firm land. The Philippines is classified as mid-ocean archipelago just 8 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos like Indonesia. The Philippines is not in any way connected physically with the Asia mainland. Components of National Territory: I. Terrestrialland mass on which the inhabitants live; II. Fluvialmaritime; a. Internal or national watersbodies of water within the land mass, amo ng them are: i. Riverswhich may be: 1. National 2. Boundarydivides the territories of States 3. Internationalflows thru various States a. Thalweg Doctrinefor boundary rivers, in the absence of an agreement between the riparian states, the boundary line is laid on the middle of the mai n navigable channel. b. Middle of the Bridge Doctrinewhere there is a bridge over a boundary ri ver, the boundary line is the middle or center of the bridge. ii. Bays and gulfsa bay is a well-marked indentation whose penetration is in such proportion to the width of its mouth as to contain a land-locked waters and constitutes more than a curvature of the coast. Also referred to as juridic al bay. The area must be as large as, or larger than, a semi-circle whose diamet er is a line drawn across the mouth of such indentation, or if the mouth is less than 24 miles wide. e.g. Hudson Bay in Canada, one whose waters are considered interna l because of the existence of a historic title. iii. Straitsnarrow passageways connecting 2 bodies of water. If the distance be tween the 2 opposite coast is not more than 6 miles, they are considered interna l waters. In international law, when a strait within a country has a width of more than si

x (6) miles, the center lane in excess of the three (3) miles on both sides is considered international waters.

9 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos iv. Canalsthe most famous is the Suez Canal, which is neutralized, and the Pana ma Canal, which is open to everyone in times of war or peace. b. Archipelagic watersare the waters enclosed by the archipelagic baselines, rega rdless of their depth or distance from the coast. Archipelagic Statea state made up wholly of one or two archipelagos. It may inclu de other islands. Straight Archipelagic Baselineto determine the archipelagic waters, the state sha ll draw straight baselines connecting the outermost points of the outermost islands and drying reefs, provided that the ratio of the area of the water t o the area of the land, including atolls, is between 1:1 and 9:1. The length of such baselines shall not exceed 100 nautical miles, except up to 3% of the tota l number of baselines enclosing any archipelago may exceed that length, u p to a maximum 125 miles. The baselines drawn should not depart, to any ap preciable extent, from the general configuration of the archipelago. All the waters within the baselines shall then be considered internal waters. The breadt h of the 12-mile territorial sea, the contiguous zone, the exclusive economic zo ne and the continental shelf shall then be measured from the archipelagic baseli nes. Vessels may be allowed innocent passage within the archipelagic wat ers, but this right may be suspended, after publication, in the interest of international security. The coastal state may also designate archipelagic se a lanes for continuous, unobstructed transit of vessels. c. Territorial Seathe belt of the sea located between the coast and the interna l waters of the coastal state on the other hand, and the high seas on the other, extending up to 12 nautical miles from the low-water mark, or in the case of archipelagic states, from the baselines.

10 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Baselineis a line from which the breadth of the territorial sea, the contiguous z one and the exclusive economic zone is measured in order to determine the mariti me boundary of the coastal state. Types of baseline: i. Normal Baseline Method ii. Straight Baseline method d. Contiguous Zoneextends up to 12 nautical miles from the territorial sea; thi s shall not exceed 24 nautical miles from the archipelagic baselines. The coastal state may exercise limited jurisdiction over the contiguous zone: 1. To prevent infringement of customs, fiscal immigration or sanitary laws and regulations within its territory or territorial sea; and 2. To punish infringement of the above laws and regulations committed within it s territory. e. Exclusive Economic Zoneshall not extend beyond 200 nautical miles from the ar chipelagic baselines. f. Continental shelfit is the seabed and subsoil of the submarine areas extendi ng beyond the Philippine territorial sea throughout the natural prolongation of the land territory. It extends up to: i. The outer edge of the continental margin; or ii. A distance of 200 nautical miles from the archipelagic baselines, whichever is the farthest. The continental shelf does not form part of the Philippine territory. The Philip pines has the sovereign rights over the continental shelf for the purpose of exp loring it and exploiting its natural resources. g. High Seastreated as res communes, thus, not territory of any particular State . These are the waters which do not constitute the internal waters, archipelagic waters, territorial sea and exclusive economic zones of a state. They are beyon d the jurisdiction and sovereign rights of States. Freedom of navigationrefers to the right to sail ship on the high sea, subject to international law and the laws of the flag of the state. 11 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

(See also discussion on UNCLOS)

12 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

III.Aerialthis refers to the air space above the land and waters of the State. (See Discussions under International Law) ARTICLE II 13 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos DECLARATION OF PRINCIPLES AND STATE POLICIES Sec. 1, Article The Philippines people and all (Relate this to II is a democratic and republican State. Sovereignty resides in the government authority emanates from them. Article XI)

1. Essential features: Representation and Renovation. 2. Manifestations: Ours is a government of law and not of men (Villavicencio vs. Lukban, 39 Phil 778). Rule of the majority. (Plurality in elections) Accountability of public officials Bill of rights Legislature cannot pass irrepealable laws. Separation of powers. Republicanism What is a republican form of government? It is a government of the people, by the people, and for the people, a representa tive government wherein the powers and duties of government are exercis ed and discharged for the common good and welfare. Characteristics of a republican form of government: 1. The people do not govern themselves directly but through their representativ es; 2. It is founded upon popular suffrage; 3. There is the tripartite system of the government, the mutual interdependence of the three departments of the government. STATEa community of persons, more or less numerous, permanently occupying a defin ite portion of territory, independent of external control, and possessing a gove rnment to which a great body of inhabitants render habitual obedience. (CIR vs. Campos Rueda, 42 SCRA 23)

State -is a legal or juristic concept l concept State -possesses a government to which a great

Nation -is an ethnic or racia Government -merely an instrumentality of the

State 14 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos body of inhabitants render habitual obedience through which the will of the State is implemented and realized. Republican n the body extremes: 1. On the 2. On the stateone constructed on the principle that the supreme power resides i of the people. Its purpose therefore is to guarantee against two (2) one hand, monarchy and oligarchy; other, pure democracy.

Elements of State: 1. People the inhabitants of the State; the # of which is capable for self- sufficiency and self-defense; of both sexes for perpetuity. a. Inhabitants; b. Citizens; c. Electors. 2. Territorya fixed portion of the surface of the earth inhabited by the people of the State. 3. Governmentthe agency or instrumentality through which the will of the State is formulated, expressed and realized. Government of the Philippinesrefers to the corporate governmental entity through which the functions of the government are exercised throughout the Philippines, including, save as the contrary appears from the context, the various arms thro ugh which political authority is made effective in the Philippines, whe ther pertaining to the autonomous regions, the provincial, city, municipal or ba rangay subdivisions or other forms of local government. De Jure vs. De Facto De Jure De Facto Has a rightful title but no power or control, either because the same has been withdrawn from it or because it has not yet actually entered into the exercise t hereof. Actually exercises the power or control but without legal title. a. De facto propergovernment that gets possession and control of, or usurps, b y force or by the voice of the majority, the rightful legal government and maint ains itself against the will of the latter; b. Government of Paramount 15 2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos Forcesestablished and maintained by the military forces who invade and occu py a territory of the enemy in the course of war; c. Independent Government established by the inhabitants of the country who ri se in insurrection against the parent State. Presidential vs. Parliamentary Presidential Parliamentary There is separation of legislative and executive powers. The first is lodged in t he President and the second is vested in Congress.

It embodies interdependence by separation and coordination. There is fusion of both executive and legislative powers in Parliament, although the actual exercise of the executive powers is vested in a Prime Minister who is chosen by, and accountable to, Parliament. It embodies interdependence by integration. Unitary vs. Federal Government Functions of the government: a. Constituentcompulsory because constitutive of the society; b. Ministrantundertaken to advance the general interest of the society; merely optional. Doctrine of Parens Patriaethe government as guardian of the rights of the people may initiate legal actions for and in behalf of particular individual. (Governme nt of the Philippine Islands vs. Monte de Piedad, 35 SCRA 738; Cabaas vs. Pilapil , 58 SCRA 94) 4. Sovereigntythe supreme and uncontrollable power inherent in a State by which t hat State is governed.

16 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos It is the right to exercise the functions of a State to the exclusion of any oth er

State. While sovereignty has traditionally been deemed absolute and all-encompassing on the domestic level, it is however subject to restrictions and limitations volun tarily agreed to by the Philippines, expressly or impliedly, as a member of the family of nations. In its Declaration of Principles and State Policies, the Cons titution adopts the generally accepted principles of international law as part o f the law of the land, and adheres to the policy of peace, equality, justice, fr eedom, cooperation and amity, with all nations. By the doctrine of incorporation , the country is bound by generally accepted principles of international law, wh ich are considered to be automatically part of our own laws. Government of Laws and Not of Men.sovereignty of the people also includes the c oncept that government officials have only the authority given them by law and d efined by law, and such authority continues only with the consent of the people. Kinds of Sovereignty: a. Legalthe power to issue final commands; b. Politicalthe sum total of all the influences which lie behind the law; c. Internalthe supreme power over everything within its territory; d. Externalalso known as independencefreedom from external control. Characteristics: a. Permanence b. Exclusiveness c. Comprehensiveness d. Absoluteness e. Indivisibility f. Inalienability g. Imprescriptibility Sovereignty, often referred to as Imperiumis the States authority to gov ern; it includes passing laws governing a territory, maintaining peace and orde r over it, and defending it against foreign invasion. It is the government authority possessed by the State expressed in the concept of sovereignty. 17 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Dominiumis the capacity of the State to own or acquire property such as lands and natural resources. (Lee Hong Hok vs. David, No. L-30389, December 27, 1972; Sep arate Opinion of Justice Kapunan in Cruz vs. Secretary of DENR, G.R. No. 135385, December 2000) It necessarily includes the power to alienate what is owned. It was the foundati on for the early Spanish decrees embracing the feudal theory of jura regalia tha t all lands were held from the Crown.

Effect of Belligerent Occupationthere is no change in sovereignty. Howev er, political laws, except those of treason, are suspended; municipal laws remai n in force unless changed by the belligerent occupant. Principle of Jus Postliminiumat the end of the occupation, when the occupant is o usted from the territory, the political laws which have been suspended shall aut omatically become effective again. (Peralta vs. Director of Prisons, No. L049, N ovember 12, 1945)

Effect of Change of Sovereigntypolitical laws of the former sovereign are abrogat ed unless they are expressly reenacted by the affirmative act of the new soverei gn. Municipal laws remain in force. (Macariola vs. Asuncion, Adm. Case No. 133-J , May 31, 1982)

Effect of Revolutionary Governmentit is bound by no constitution. However, it did not repudiate the Covenant or Declaration in the same way it repudia ted the Constitution. As the de jure government, the revolutionary government c ould not escape responsibility for the States good faith compliance with its trea ty obligations under international law. During the interregnum when no constitut ion or Bill of Rights existed, directives and orders issued by government officers did not exceed the authority granted them by the revolutionary gov ernment. The directives or orders should not have also violated the Covenant or the Declaration. (Republic vs. Sandiganbayan, G.R. No. 104768, July 21, 2003) Jurisdictionis the manifestation of sovereignty. a. Territorialpower of the State over persons and things within its territory s ubject to its control and protection. 18 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos b. Personalpower of the State over its nationals, which may be exercised by the state even if the individual is outside the territory of the State. c. Extraterritorialpower of the State over persons, things or acts beyond its territorial limits by reason of their effects to its territory. Sec. 2, Article II (Incorporation Clause) The Philippine renounces war as an instrument of national policy, adopts the gen erally accepted principles of international law as part of the law of the land a nd adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.

Three (3) parts: 1. Renunciation of warthe power to wage a defensive war is of the very essence o f sovereignty;

2. Adoption of the principles of international law; 3. Adherence to a policy of peace, equality, justice, freedom, cooperation & am ity. The second part is nothing more than a formal acceptance of a principle to which all civilized nations must conform. The third part is called the selfish policythe guiding principle of Philippine fore ign policy is the national interest. However, this is tempered with concern for e quality, peace, freedom and justice. Section 23 (1), Article VI: The Congress, by a vote of two-thirds of both Houses in join session assembled, voting separately, shall have the sole power to decl are the existence of a state of war. Doctrine of Incorporationthe doctrine where the generally accepted principles of international law are made part of the law of the land either by express provisi on of the Constitution or by means of judicial declaration or fiat. The doctrine is applied whenever municipal tribunals or local courts are confronted with sit uations in which there appears to be a conflict between a rule of international law and the provisions of the Constitution or statute of a State. Efforts should first be exerted to harmonize them so as to give effect to both. In case of conflict between international law and municipal law, the latter shal l prevail. However, the doctrine dictates that rules of international law are given equal s tanding with, and are not superior to, national legislative enactments. 19 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Lex posterior derogate prioriin States where the constitution is the highest law of the land, both statutes and treaties may be invalidated if they are in confli ct with the Constitution. (Secretary of Justice vs. Lantion, G.R. No. 139465, Ja nuary 18, 2000) Philip Morris, Inc. vs. CA, the fact that the international law has been made pa rt of the law of the land does not by any means imply the primacy of internation al law over national law in the municipal sphere. Doctrine of Autolimitation It is the doctrine where the Philippines adheres to principles of international law as a limitation to the exercise of its sovereignty. What war does the Philippines renounce? The Philippines renounces an aggressive war because of its membership in the Unit ed Nations whose charter renounces war as an instrument of national policies of its member States. Sec. 3, Article II (Civilian Supremacy Clause) Civilian authority is, at all times, supreme over the military. The Armed Forces

of the Philippines is the protector of the people and the State. Its goal is to secure the sovereignty of the State and the integrity of the national territory . Civilian Supremacy Clause Sec. 18, Art. VIIinstallation of the President as the highest civilian authority, as the commander-in-chief of the AFPexternal manifestation that civilian authority is supreme over the military. Sec. 5(1), Art. XVImembers of the AFP swear to uphold and defend the Constitution , which is the fundamental law of the civil government. Civilian supremacy is not a guaranteed supremacy of civilian officers who are in power but of supremacy of the sovereign people. The Armed Forces, in this sense , is the protector of the people and the State. Sec. 6, Article XVIThe State shall establish and maintain one police force, which shall be national in scope and civilian in character, to be administered and co ntrolled by a national police commission. The authority of local executives over the police units in their jurisdiction shall be provided by law. IBP vs. Zamora, G.R. No. 141284, August 15, 2000, the deployment of the 20 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos Marines does not constitute a breach of the civilian supremacy clause. The calli ng of the marines in this case constitutes permissible use of military asset for civilian law enforcement. x x x The limited participation of the Marines is evi dent in the provisions of the Letter of Instruction (LOI) itself, which sufficie ntly provides the metes and bounds of the Marines authority. It is noteworthy tha t the local police forces are the ones charge of the visibility patrols at all t imes, the real authority belonging to the PNP. In fact, the Metro Manila Police Chief is the overall leader of the PNP-Marines joint visibility patrols. Under t he LOI, the police forces are tasked to brief or orient the soldiers on police p atrol procedures. It is their responsibility to direct and manage the deployment of the marines. It is, likewise, their duty to provide the necessar y equipment to the Marines and render logistic support to these soldiers. In vie w of the foregoing, it cannot be properly argued that military authority is supr eme over civilian authority. It is worth mentioning that military assistance to civilian authorities in vario us forms persists in Philippine jurisdiction. The Philippine experience reveals that it is not averse to requesting the assistance of the military in the implem entation and execution of certain traditionally civil functions. x x x Some of the multifarious activities wherein military aid has been rendered, exemplifying th e activities that bring both the civilian and the military together in a relatio nship of cooperation are: 1. Elections; 2. Administration of the Philippine National Red Cross; 3. Relief and rescue operations during calamities and disasters; 4. Amateur sports promotion and development; 5. Development of the culture and the arts; 6. Conservation of the natural resources; 7. Implementation of the agrarian reform program; 8. Enforcement of customs laws; 9. Composite civilian-military law enforcement activities;

10. Conduct of licensure examinations; 11. Conduct of nationwide test for elementary and high school students; 12. Anti-drug enforcement activities; 13. Sanitary inspections; 14. Conduct of census work; 15. Administration of the Civil Aeronautic Board; 16. Assistance in installation of weather forecasting devices; 17. Peace and order policy formulation in local government units. This unquestionably constitutes a gloss on executive power resulting from a syst ematic, unbroken, executive practice, long pursued to the knowledge of Congress and, yet, never before questioned. What we have here is a mutual support and coo peration between the military and civilian authorities, not derogation of civili an supremacy.

Sec. 4, Article II The prime duty of the Government is to serve and protect the people. The 21 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos Government may call upon the people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions provided by law, to rend er personal military or civil service.

Does the Philippines renounce defensive war? No, because it is duty bound to defend its citizens. Under the Constitution, the prime duty of the government is to serve and protect the people. Posse Commitatusit is the power of the state to require all able-bodied citizens to perform civic duty to maintain peace and order. In People vs. Lagman, 66 Phil. 13, the accused in this case, prosecuted for fail ure to register for military service under the National Defense Act, assailed th e validity of the Act. The Supreme Court upheld the law on the basis of the comp ulsory military and civil service provision of then 1935 Constitution. It said t hat: x x x. The duty of the Government to defend the State cannot be performed ex cept through an army. To leave the organization of an army to the will of the ci tizens would be to make this duty to the Government excusable should there be no sufficient men who volunteer to enlist thereinx x x the right of the Government to require compulsory military service is a consequence of its duty to defend th e State and is reciprocal with its duty to defend the life, liberty, and propert y of the citizen. x x x.

Sec. 5, Article II The maintenance of peace and order, the protection of life, liberty, and propert y, and the promotion of the general welfare are essential for the enjoyment by a ll the people of the blessings of democracy.

Righttobeararms: It is statutory and not a constitutional right. The license to carry a firearm is neither a property nor a property right. Neither does it crea te a vested right. Even if it were a property right, it cannot be considered abs olute as to be placed beyond the reach of police power. The maintenance of peace and order, and the protection of the people against violence are constitutional duties of the State, and the right to bear firearm is to be construed in connec tion and in harmony with these constitutional duties. (Chavez vs. Romulo, G.R. N o. 157036, June 9, 2004)

Sec. 6, Article II The separation of Church and State shall be inviolable.

22 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos The State should not use its money and coercive power to establish religion. It should not support a particular religion. The State is prohibited from interferi ng with purely ecclesiastical affairs. But it does not mean that there is total or absolute separation. The better rule is symbiotic relations between the churc h and State. Constitutional provisions evidencing the Separation of Church and State: 1. Sec. 6, Art. II 2. Sec. 5, Art. IIINo law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of re ligious profession and worship, without discrimination or preference, shall fore ver be allowed. No religious test shall be required for the exercise of civil an d political rights. 3. Sec. 2 (5), Art. IX-Creligious sect cannot be registered as political party 4. Sec. 5 (2), Art. VIno sectoral representative from the religious sector 5. Sec. 28 (3), Art. VICharitable institutions, churches and parsonages or conve nts appurtenant thereto, mosques, non-profit cemeteries, and all lands, building s, and improvements, actually, directly, and exclusively used for religious, cha ritable, or educational purposes shall be exempt from taxation. 6. Sec. 29 (2), Art. VINo public money or property shall be appropriated, applie d, paid, or employed, directly or indirectly, for the use, benefit, or support o f any sect, church, denomination, sectarian institution, or system of religion, or of any priest, preacher, minister, or other religious teacher, or dignitary a s such, except when such priest, preacher, minister, or dignitary is assig ned to the armed forces, or to any penal institution, or government orph anage or leprosarium. 7. Sec. 3 (3), Art. XIVAt the option expressed in writing by the parents or guar dians, religion shall be allowed to be taught to their children or wards in publ ic elementary and high schools within the regular class hours by instructors des ignated or approved by the religious authorities of the religion to which the ch ildren or wards belong, without additional cost to the Government. 8. Sec. 4 (2), Art. XIVFilipino ownership requirement for educational institutio ns, except those established by religious groups and mission boards.

Austria vs. NLRC and CPU Mission Corp. of the 7th Day Adventists, G.R. No. 124382, August 16, 1999, an ecclesiastical affair involves the relationship betw een the church and its members and relates to matter of faith, religious doctrin es, worship and governance of the congregation. Examples of these affairs in whi ch the State cannot meddle are proceedings for excommunication, ordination of re ligious ministers, administration of sacraments, and other activities to which i s attached religious significance. In this case, what is involved is the relatio nship of the church as an employer and the minister as an employee. It is purely secular and has no relation whatsoever with the practice of faith, worship or d octrine of the church. STATE POLICIES 23 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Sec. 7, Article II (Independent Foreign Policy) The State shall pursue an independent foreign policy. In its relations with othe r states the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to self-determination. The word relations covers the whole gamut of treaties and international agreements and other kinds of intercourse. This is the closest reference to military bases . There is a marked antipathy in the Constitution towards foreign military presenc e in the country, or of foreign influence in general. (Lim vs. Executive Secreta ry, G.R. No. 151445, April 11, 2002) Sec. 8, Article II (Policy of Freedom from Nuclear Weapons) The Philippines, consistent with the national interest, adopts and pursues a pol icy of freedom from nuclear weapons in its territory. Clearly, the ban is on nuclear armsthat is, the use and stockpiling of nuclear we apons, devices, and parts thereof. And this includes not only possessing, contro lling and manufacturing nuclear weapons, but also nuclear test in our territory, as well as the use of our territory as dumping ground for radioactive waste. The provision, however, is not a ban on the peaceful uses of nuclear energy. Nor is it a ban on all nuclear-capable vessels. For a vessel to be banned, it is not enough that it is capable of carrying nuclear arms; it must actually carry nucle ar arms. Nuclear weapons, if stored in our territory, may invite threats of foreign invas ion and there is a danger to the life and limbs of the people because of the thr eat of explosion. Sec. 9, Article II (Just and Dynamic Social Order) The State shall promote a just and dynamic social order that will ensure the pro

sperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a risin g standard of living, and an improved quality of life for all.

It reflects a preoccupation with poverty as resulting from structures that mire the people in a life of dependence.

Sec. 10, Article II 24 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos (Social Justice) The State shall promote social justice in all phases of national development. (Read Sections 1 and 2 of Article XIII)

Sections 1&2 of Article XIII: Section 1The Congress shall give highest priority to the enactment of measures th at protect and enhance the right of all the people to human dignity, reduce soci al, economic, and political inequalities, and remove cultural inequities by equi tably diffusing wealth and political power for the common good. To this end, the State shall regulate the acquisition, ownership, use, and dispo sition of property and its increments. Section 2The promotion of social justice shall include the commitment to create economic opportunities based on freedom of initiative and self-reliance. The Constitution covers all phases of national development but with more emphasi s not only on economic inequities but also on political and cultural inequities.

Sec. 11, Article II (Personal Dignity and Human Rights) The State values the dignity of every human person and guarantees full respect f or human rights. (Read Sections 17-19 of Article XIII)

Section 12, Article II (The Family as Basic Social Institution) The State recognizes the sanctity of family life and shall protect and strengthe n the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception. The natural a nd primary right and duty of parents in the rearing of the youth for civic effic iency and the development of moral character shall receive the support of the go

vernment. (Read Article XV)

The family here is to be understood as a stable heterosexual relation ship whether formalized by civilly recognized marriage or not. Calling the famil y a basic social institution is an assertion that the family is anterior to the St ate and is not a creature of the State. The categorization of the family as auton omous is meant to 25 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos protect the family against instrumentalization by the State. Protection of the U nborn The unborns entitlement to protection begins from conception, i.e., from the moment of conception. The intention is to protect life from its beginning, and t he assumption is that human life begins at conception and that conception takes place at fertilization. The provision is intended to prevent the State from adopting the doctrine in US Supreme Court decision of Roe vs. Wade, 410 US 113, which liberalized abortion l aws up to the 6th month of pregnancy by allowing abortion at the discretion of t he mother any time during the first 6 months when it can be done without danger to the mother.

Natural Right and Duty of Parents Parents are entitled to the support of laws designed to aid them in the discharg e of their responsibility. The provision also highlights the inherent duty of the State to act as parens pa triae and to protect the right of persons and individuals who, because of age or inherent incapacity, are in an unfavorable position vis--vis other parties. People vs. Larin, G.R. No. 128777, October 7, 1998, RA 7610, which penalizes chi ld prostitution and other sexual abuses, was enacted in consonance with the poli cy of the State to provide special protection to children from all forms of abuse, thus, the Court grants the victim full vindication and protection granted under the law.

Section 13, Article II Vital Role of the Youth in Nation-Building The State recognizes the vital role of the youth in nation-building and shall pr omote and protect their physical, moral, spiritual, intellectual, and social wel l- being. It shall inculcate in the youth patriotism and nationalism, and encour age their involvement in public and civic affairs.

Section 14, Article II (Equality of Women and Men) The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men.

(Read Section 14, Article XIII) PT&T Co. vs. NLRC, G.R. No. 118978, May 23, 1997, the SC held that the petitione rs 26 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos policy of not accepting or considering as disqualified from work any woman worke r who contracts marriage, runs afoul of the test of, and the right against, disc rimination, which is guaranteed all women workers under the Constitution. While a requirement that a woman employee must remain unmarried may be justified as a b ona fide occupational qualification where the particular requirements of the job would demand the same, discrimination against married women cannot be adopted by the employer as a general principle.

Section 15, Article II (Right to Health) The State shall protect and promote the right to health of the people and instil l health consciousness among them. (Read Sections 11-13 of Article XIII as an aspect of Social Justice)

Section 16, Article II (Right to A Balanced and Healthful Ecology) The State shall protect and advance the right of the people to a balanced and he althful ecology in accord with the rhythm and harmony of nature.

Oposa vs. Factoran, Jr., 224 SCRA 792, it was held that the 34 minors duly joined by their respective parents pleading the cause of inter-generational responsibil ity and inter-generational justice, had a valid cause of action in questioning the grant of Timber Licensing Agreements (TLAs) for commercial logging purpo ses. The minors filed the action for themselves as representing their generation as well as generations yet unborn. The SC, on the basis of Section 16, Article II linked with the right to health, recognized a right to a balanced and healthful ecology and the correlative duty to refrain from impairing the environment. C&M Timber Corporation vs. Alcala, G.R. No. 111088, June 13, 1997, on the issue that the total log ban is a new policy which should be applied prospectively and n ot affect the rights of petitioner vested under the Timber Licensing Agreement ( TLA), the Sc held that this is not a new policy but a mere reiteration of the po licy of conservation and protection the right to a balanced and healthful ecolog y.

Section 17, Article II The State shall give priority to education, science and technology, arts, cultur e, and sports to foster patriotism and nationalism, accelerate social progress, and promote total human liberation and development.

27 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos (Read also Section 2, Article XIV)

In PRC vs. De Guzman, G.R. No. 144681, June 21, 2004, while it is true that the SC has upheld the constitutional right of every citizen to select a profession o r course of study subject to fair, reasonable, and equitable admission and acade mic requirements, the exercise of this right may be regulated pursuant to the po lice power of the State to safeguard health, morals, peace, education, order, sa fety and general welfare. Thus, persons who desire to engage in the learned prof essions requiring scientific or technical knowledge may be required to take an e xamination as a prerequisite to engaging in their chosen careers. This regulatio n assumes particular pertinence in the field of medicine, in order to protect th e public from the potentially deadly effects of incompetence and ignorance. PMMS, Inc. vs. CA, 244 SCRA 770, the Court said that the requirement that a scho ol must first obtain government authorization before operating is based on the S tate policy that educational programs and/or operations shall be of good quality and, therefore, shall at least satisfy minimum standards with respect to curric ula, teaching staff, physical plant and facilities and administrative and manage ment viability.

Section 18, Article II The State affirms labor as a primary social economic force. It shall protect the right of the workers and promote their welfare.

In the case of Bernardo vs. NLRC, G.R. No. 122917, July 12, 1999, the SC held th at the Magna Carta for Disabled Persons mandates that qualified disabled persons be granted the same terms and conditions of employment as qualified able- bodie d employees; thus, once hey have attained the status of regular workers, they sh ould be accorded all the benefits granted by law, notwithstanding written or ver bal contracts to the contrary. This treatment is rooted not merely in charity or accommodation, but in justice for all.

Section 19, Article II The State shall develop a self-reliant and independent national economy effectiv ely controlled by Filipinos.

28 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

The Constitution does not necessarily rule out the entry of foreign investments, goods and services. It contemplates neither economic seclusion nor mendicancy in t he international community. Aside from envisioning a trade policy based on equality and reciprocity, the funda mental law encourages industries that are competitive in both domestic and foreig n markets, thereby demonstrating a clear policy against a sheltered domestic trad e environment, but one in favor of the gradual development of robust industries that can compete with the best in the foreign markets. (Taada vs. Angara, 272 SCR A 18)

Section 20, Article II The State recognizes the indispensable role of the private sector, encourages pr ivate enterprise, and provides incentives to needed investments. (Read Article XII) Doctrine of Free Enterprise Association of Philippine Coconut Desiccators vs. PCA, G.R. No. 110526, February 10, 1998, the SC said that although the Constitution enshrines free en terprise as a policy, it nevertheless reserves to the Government the p ower to intervene whenever necessary for the promotion of the general welfare as reflected in Sections 6 & 19 of Article XII. Pest Management Association of the Philippines vs. Fertilizer and Pesticide Auth ority, G.R. No. 156041, February 21, 2007 and Pharmaceutical and Health Care Ass ociation of the Philippines vs. Sec. Duque III, G.R. No. 173034, October 9, 2007, it was held that despite the fact that our present Constitution enshri nes free enterprise as a policy, it nevertheless reserves to the Government the p ower to intervene whenever necessary to promote the general welfare. Free enterp rise does not call for removal of protective regulations. It must be clearly expla ined and proven by competent evidence just exactly how such protective regulatio n would result in the restraint of trade.

Section 21, Article II The State shall promote comprehensive rural development and agrarian reform. Rural development encompasses a broad spectrum of social, economic, human, cultu ral, political and even industrial development. (See the case of Association of Small Landowners of the Philippines vs. Secretar y of Agrarian Reform, 175 SCRA 343) 29 2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Section 22, Article II The state recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development. [Read Section 5(2), Article VI; Section 5, Article XII; Section 17, Article XIV]

Section 23, Article II The State shall encourage non-governmental, community-based, or sectoral organiz ations that promote the welfare of the nation. (Read Sections 15-16 of Article XIII)

Section 24, Article II The State recognizes the vital role of communication and information in nationbuilding. (Read Sections 10-11, Art. XVI; Sec. 23, Art. XVIII)

Section 25, Article II The State shall ensure the autonomy of local governments. (Read Article X) Basco vs. PAGCOR, 197 SCRA 52, The SC held that the local autonomy under the 1987 Constitution simply means decentralization, and does not make the l ocal governments sovereign within the State or an imperium in imperio.

Limbonas vs. Mangelin, 170 SCRA 786 Decentralization of Administration Decentralization of Power -delegation of administrative powers to the local government unit in order to br oaden the base of governmental powers. -abdication by the national government of governmental powers

Lina vs. Pano, G.R. No. 129093, August 30, 2001, the Sc said that the basic rela tionship between the national legislature and the local government units has not been enfeebled by the new provisions in the Constitution strengthening the poli cy of local autonomy. Without meaning to detract from that policy, Congress reta ins control of the LGUs although in a significantly reduced degree now under our previous Constitutions. The power to create still includes the power to destroy . The power to 30 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B

ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos grant still includes the power to withhold or recall. True there are notable inn ovations in the Constitution, like the direct conferment on the LGUs of the powe r to tax which cannot now be withdrawn by mere statute. By and large, however, t he national legislature is still the principal of LGUs, which cannot defy its wi ll or modify or violate it. Ours is still a unitary form of government, not a fe deral state. Being so, any form of autonomy granted to local governments will ne cessarily be limited and confined within the extent allowed by the central autho rity.

Judge Dadole vs. COA, G.R. No. 125350, December 3, 2002, even as we recognize th at the Constitution guarantees autonomy to LGUs, the exercise of local autonomy remains subject to the power of control by Congress and the power of general sup ervision by the President. xxx The President can only interfere in the affairs a nd activities of a LGU if he finds that the latter had acted contrary to law. Th e President or any of his alter egos, cannot interfere in local affairs as long as the concerned LGU acts within the parameters of the law and the Constitution. Any directive, therefore, by the President or any of his alter egos seeking to alter the wisdom of a law-conforming judgment on local affairs of a LGU is a pat ent nullity, because it violates the principle of local autonomy, as well as the doctrine of separation of powers of the executive and legislative departments i n governing municipal corporations.

Section 26, Article II The State shall guarantee equal access to opportunities for public service, and prohibit political dynasties as may be defined by law.

Pamatong vs. COMELEC, G.R. No. 161872, April 13, 2004, the SC said that this pro vision does not bestow a right to seek the Presidency; it does not contain a jud icially enforceable constitutional right and merely specifies a guideline for le gislative action. The provision is not intended to compel the State to enact pos itive measures that would accommodate as many as possible into public office. Th e privilege may be subjected to limitations. One such valid limitation is the pr ovision of the Omnibus Election Code on nuisance candidates.

Section 27, Article II The State shall maintain honesty and integrity in the public service and take po sitive and effective measures against graft and corruption.

31 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R

review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Section 28, Article II Subject to reasonable conditions prescribed by law, the State adopts and impleme nts a policy of full public disclosure of all its transactions involving public interest. ----PRINCIPLE OF TRANSPARENCY

DOCTRINE OF SEPARATION OF POWERS This principle operated as an implicit limitation on legislative powers as on th e two other powers. In essence, separation of powers means the legislation belongs to Congress, exec ution to the executive, settlement of legal controversies to the judiciary. Each is prevented from invading the domain of the others. But the separation is not total. The system allows for checks and balances the net effect of which being tha t, in general, no one department is able to act without the cooperation of at le ast one of the other departments. Purpose: To prevent concentration of powers in one department and thereby to avo id tyranny. The purpose was not to avoid friction, but, by means of the inevitab le friction incident to the distribution of governmental powers among the three departments, to save the people from autocracy. 1. To secure action 2. To forestall overaction 3. To prevent despotism 4. To obtain efficiency In La Bugal-BLaan Tribal Association vs. Ramos, G.R. No. 127882, December 1, 2004 , the court restrained itself from intruding into policy matters to allow the Pr esident and Congress maximum discretion in using mineral resources of our countr y and in securing the assistance of foreign groups to eradicate the grindin g poverty of our people and answer their cry for viable employment opportunities in the country. The Judiciary is loath to interfere with the due exercise by coequal branches of government of their official functions. Let the development of mining industry be the responsibility of the political branches of the governmen t. The questioned provisions of RA 7942 (Philippine Mining Act of 1995) are not unconstitutional. In Maceda vs. Vasquez, 221 SCRA 464, in the absence of any administrative action taken against the RTC Judge by the SC with regard to the formers certificate of service, the investigation conducted by the Ombudsman encroaches into the SCs power of administrative supervision over all courts and its personnel, in v iolation of the 32 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos doctrine of separation of powers.

Principle of Blending of Powers: Instances when powers are not confined exclusiv ely within one department but are assigned to or shared by several departments. Principle of Checks and Balances: This allows one department to resist encroachm ents upon its prerogative or to rectify mistakes or excesses committed by the ot her departments. The first and safest criterion to determine whether a given power has been validl y exercised by a particular department is whether or not the power has be en constitutionally conferred upon the department claiming its exercisesince the conferment is usually done expressly. However, even in the absence of express c onferment, the exercise of the power may be justified under the doctr ine of necessary implication. The grant of express power carried with it all ot her powers that may be reasonably inferred from it. Justiciable question- implies a given right, legally demandable and enforceable, an act or omission violative of such right, and a remedy granted and sanctioned by law for said breach of right. (Casibang vs. Aquino, 92 SCRA 642) THE INHERENT POWERS OF THE STATE 1. Police Power 2. Power of Eminent Domain 3. Power of Taxation Similarities: 1. Inherent in the State, exercised even without need of express constitu tional grant. 2. Necessary and indispensable; State cannot be effective without them. 3. Methods by which State interferes with private property. 4. Presupposes equivalent compensation. 5. Exercised primarily by the legislature. Distinctions: Police Power Eminent Domain on Regulates both liberty and property may be exercised only by Affects property rights

Taxati

may even be exercised by affects property rights

may be exercised only by 33 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R

review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos government; cannot be delegated to administrative body property taken is usually noxious(unpleasant and harmful) or intended for noxious purpose and may thus be destroyed compensation is the intangible, altruistic feeling that the individual has contri buted to the public good private entities

the property is wholesome and devoted to public use or purpose

compensation is the full and fair equivalent of the property taken government; cannot be delegated to administrative body the property is wholesome and devoted to public use or purpose

it is the protection and/or public improvements instituted by government for the taxes paid Limitations: Generally, the Bill of Rights, although in some cases the exercise of the power prevails over specific constitutional guarantees. The courts may an nul the improvident exercise of police power. These powers must not be exercised arbitrarily, to the prejudice of Bill of Righ ts. In Ericta vs. City Government of Quezon City, 122 SCRA 759, the City Government of QC was not exercising police power when they required p rivate cemetery owners to reserve 6% of the burial lots for paupers burial ground. The S C held that in police power, the property to be taken is to be destroyed. The 6% are private property of the cemetery owners. This is a taking of private proper ty. Sec. 9, Art. III: Private property shall not be taken for public use without just compensation. Clearly, this is an invalid exercise of police power. The City was made to pay t he owners just compensation. In Philippine Press Institute vs. COMELEC, 244 SCRA 272, Sec. 2 of COMELEC Resol ution No. 2772, which mandates newspapers of general circulation in every provin ce or city to provide free print space of not less than page as COMELEC space, w as held to be an invalid exercise of police power there being no showing of the

existence of a national emergency or imperious public necessity for the taking o f print space, nor that the resolution was the only reasonable and calibrated re sponse to such necessity. This was held to be an exercise of the power of eminent domain, albei t

34 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos invalid, because the COMELEC would not pay for the space to be given to it by th e newspapers. Police power and power of taxationcannot be delegated to administrative bodies. Police power and power of eminent domain both involved taking. They differ in pur pose. Police powerto destroy; because the property is harmful, obnoxious, poses a risk t o the public. Power of eminent domainonly private property is the subject of taking; the purpose is to convert the private property to public use.

POLICE POWER It is the power of promoting public welfare by restraining and regulating the us e of liberty and property. It is the power vested by the Constitution in the legislature to make, ordain, a nd establish all manner of wholesome and reasonable laws, statutes and ordi nances, either with penalties or without, not repugnant to the Constitution, as they shall judge to be for the good and welfare of the commonwealth, and for the subjects of the same. The power is plenary and its scope is vast and pervasive, reaching and justifying measures for public health, public safety, public moral s, and the general welfare. It is the power to prescribe regulations to promote the health, morals, peace, e ducation, good order or safety and general welfare of the people (now common goo d). (Binay vs. Domingo, 201 SCRA 508) It has been described as the most essential, insistent and the least limitable of powers, extending as it does to all the great public needs. It is the power vest ed in the legislature to make, ordain, and establish all manner of wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not repugnant to the Constitution, as they shall judge to be for the good and welfa re of the commonwealth, and for the subjects of the same. (Carlos Superdrug Corp . vs. DSWD, G.R. No.

166494, June 29, 2007) Cabrera vs. Lapid, G.R. No. 129098, December 6, 2006, a careful reading of the q uestioned Resolution reveals that the Ombudsman dismissed petitioners cri minal 35 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos complaint because respondents had validly resorted to the police power of the St ate when they effected the demolition of the illegal fishpond in question follow ing the declaration thereof as a nuisance per se. in the words of the Ombudsman, those who participated in the blasting of the subject fishpond were only impelle d by their desire to serve the best interest of the general public; for the good and the highest good. Requisites (Limitations): 1. Lawful subjectthe interests of the public in general as distinguished from th ose of a particular class, require the exercise of this power. 2. Lawful meansthe means employed are reasonably for the accomplishment of the purpose, and not unduly oppressive on individuals. Affected with public interestan industry is subject to control for the public good; it has been considered as the equivalent of subject to the exercise of police po wer. Construction: construed strictly and any doubt must be resolved against the gran t. Scope/Characteristics: It is the most pervasive, least limitable, and the most demanding of the three powers. The justification is found in: salus populi est suprema lex (the welfare of the people is the supreme law) and sic utere tuo ut alienum non laedas (use your property so as not to impair others). 1. It cannot be bargained away through the medium of a treaty or a contract. 2. The taxing power may be used as an implement of police power 3. Eminent domain may be used as an implement to attain the police power object ive (Association of Landowners vs. Secretary of Agrarian Reform, 175 SCRA 343). 4. In Ortigas & Co. vs. CA, G.R. No. 126102, December 4, 2000, non- impairment o f contracts or vested rights clauses will have to yield to the superior and legi timate exercise by the State of the police power. 5. In PRC vs. De Guzman, G.R. No. 144681, June 21, 2004, the exercise of the co nstitutional right of every citizen to select a profession or course of study ma y be regulated pursuant to the police power of the State to safeguard health, mo rals, peace, education, order, safety, and the general welfare of the people. This regulation assumes particular pertinence in the field of medicine,

36 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B

ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos to protect the public from the potentially dead effects of incompetence and igno rance. In Chavez vs. Romulo, 431 SCRA 534, the right to bear arms is merel y statutory privilege. The license to carry firearm is neither a property nor a property right. Neither does it create a vested right. A permit to carry outside ones residence may be revoked at any time. Even if it were a property right, it cannot be considered as absolute as to be beyond the reach of the police power. Who may exercise police power? The power is inherently vested in Congress. However, they may validly delegate t his power to the following: 1. the President 2. administrative bodiespublic and quasi-public corporations 3. the lawmaking bodies of local government units Local government units exercise the power under the general welfare clause. CANORECO vs. Torres, G.R. no. 127249, February 27, 1998, while police power may be delegated to the President by law, RA 6939 and PD 260, as amended, do not aut horize the President or any other administrative body, to take over the internal management of a cooperative. Accordingly, Memorandum Order No. 409, issued by t he President, constituting an ad hoc committee to temporarily take over and mana ge the affairs of CANORECO is invalid. In MMDA vs. Bel-Air Village Association, G.R. No. 135962, March 27, 2000, there is no provision in RA 7924 that empowers the MMDA or its council to enact ordinan ce, approve resolutions and appropriate funds for the general welfare of the inha bitants of Metro Manila. Thus, MMDA may not order the opening of Neptune St. in the Bel-Air Subdivision to public traffic, as it does not possess delegated poli ce power. Section 11, Article Xthe Congress may, by law, create special metropolitan politi cal subdivisions, subject to a plebiscite as set forth in Section 10 hereof. The component cities and municipalities shall retain their basic autonomy and shall be entitled to their own local executives and legislative assemblies. The juris diction of the metropolitan authority that will thereby be created shall be limi ted to basic services requiring coordination. MMDA is not a special metropolitan political subdivision. 37 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

However, in MMDA vs. Garin, G.R. No. 130230, April 15, 2005, although the law (R A 7924) does not grant the MMDA the power to confiscate and suspend or revoke dr

ivers licenses without need of any legislative enactment, the same law vests the MMDA the dutytoenforceexistingtrafficrulesandregulations. Thus, where there is a traffic law or regulation validly enacted by the legislature or those agencies to whom legislative power has been delegated, the MMDA is not precludedand in fac t is duty- boundto confiscate and suspend or revoke drivers licenses in the exerci se of its mandate of transport and traffic management, as well as the administra tion and implementation of all traffic enforcement operations, traffic engineeri ng services and traffic education programs. Additional Limitations (When exercised by delegate): a. express grant by law b. within territorial limits (for local government units, except when exercised to protect water supply) c. must not be contrary to law For 1. 2. 3. 4. 5. 6. municipal ordinance to be valid: it must not contravene the Constitution or any statute; it must not be unfair or oppressive; it must not be partial or discriminatory; it must not prohibit, but may regulate, trade; it must not be unreasonable; and it must be general in application and consistent with public policy.

In City of Manila vs. Judge Laguio, G.R. No. 118127, April 12, 2005, the SC declared as an invalid exercise of the police power the City of Manila Ordinance No. 7783, which prohibited the establishment or operation of businesses providing cer tain forms of amusement, entertainment, services and facilities in the Ermita-Ma late area, for being contrary to the Constitution, infringing the guarantees of d ue process and equal protection of the laws. In Centeno vs. Villalon-Pornillos, 236 SCRA 197 (1994), solicitation fo r religious purposes may be subject to proper regulation by the State in the exe rcise of police power. In Acebedo Optical Company, Inc. vs. CA, 329 SCRA 314 (2000), the iss uance of business licenses and permits by a municipality or city is essentially 38 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos regulatory in nature. The authority, which devolved upon local government units, to issue or grant such licenses or permits, is essentially in the exercise of t he police power of the State within the contemplation of the general welfare cla use of the LGC. The implementation of the Comprehensive Agrarian Reform Law (CARL) is an exercis e of police power and the power of eminent domain. To the extent that the CARL p rescribes retention limits to the landowners, there is an exercise of police pow er for the regulation of private property in accordance with the Constitution. B ut where, to carry out such regulation, the owners are deprived of lands they ow n in excess of the maximum area allowed, there is also taking under the power of

eminent domain. The taking contemplated is not a mere limitation of the use of the land. What is required is the surrender of the title to and physical possess ion of the said excess and all beneficial rights accruing to the owner in favor of the farmer beneficiary. The Bill of rights provides that no person shall be de prived of life, liberty and property without due process of law. The CARL was not intended to take away property without due process of law. The exercise of powe r of eminent domain requires that due process be observed in the taking of priva te property. [Roxas and Co., vs. CA, 321 SCRA 106 (1999)] Republic vs. Manila Electric Company, G.R. No. 141314, November 15, 2002, the regulation of rates to be charged by public utilities is founded upon the police power of the State and statutes prescribing rules for the control and regulations of public utilities are a valid exercise thereof. When a private property is used for a public purpose and is affected with public inte rest, it ceases to be juris privati only and becomes subject to regulati on. The regulation is to promote the common good. Submission to regulation may b e withdrawn by the owner by discontinuing use; but as long as the use of the pro perty is continued, the same is subject to public regulation. In regulating rates charged by public utilities, the State protects the public a gainst arbitrary and excessive rates while maintaining the efficiency and qualit y of services rendered. However, the power to regulate rates does not give the S tate the right to prescribe rates which are so low as to deprive the public util ity of a reasonable return on investment. Philippine Press Institute (PPI) vs. COMELEC, 244 SCRA 272, Section 2 of COMELEC Resolution No. 2772, which mandates newspapers of general circulation in every province or city to provide free print space of not less than page as COMELEC sp ace, was held to be invalid exercise of police power there being no showing of t he existence of national emergency or imperious public necessity for the taking of print

39 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos space, nor that the resolution was the only reasonable and calibrated response t o such necessity. Public purpose and use has broader concept now. It now includes VICARIOUS BENEFI TS that society may derive from a particular measure. e.g. CONCERN FOR THE POORSC recognized this as one for public purpose and use.

POWER OF EMINENT DOMAIN also known as the power of expropriation The power of eminent domain is the power of the State to forcibly take private p roperty for public use upon payment of just compensation.

It is the right or power of a sovereign state to appropriate private property to particular uses to promote public welfare. It is governments right to appropriate, in the nature of a compulsory sale to the State, private property for public use or purpose. (Moday vs. CA, 268 SCRA 586) The ultimate right of the sovereign power to appropriate, not only the public, b ut even the private property of all citizens within the territorial sovereig nty, for public purpose.

Power of Eminent Domain involves public rights

Destruction Due to Necessity

the property is converted to public use

there

must

be

payment

of

just compensation

undertaken by the State involves private rights

such

as

self- preservation and self-defense

there is no need for the conversion to public use no need for just compensation

may

be

validly

undertaken

even

by private individuals

40 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos Object of Expropriation: 1. anything that comes under the dominion of man 2. real, personal, tangible and intangible 3. property right 4. churches and other religious properties 5. property already devoted to public use Except: money- because compensation is also money Who may exercise? Generally, the legislature, but also upon valid delegation to:

1. 2. 3. 4.

the President; lawmaking bodies of LGUs; administrative bodiespublic and quasi-public corporations Private enterprises performing public services.

In the case of Republic vs. CA, G.R. No. 146587, July 2, 2002, the power of emin ent domain must, by enabling law, be delegated to local governments by the natio nal legislature, and thus, can only be as broad as the real authority would want it to be. The grant of the power to local government units under RA 7160 cannot be understood as equal to the pervasive and all encompassing power vested in th e legislative branch of government. JIL School Foundation vs. Municipality of Pasig, G. R. No. 152230, August 9, 2005Sec. 19, of the LGC requires the LGU to tender a prior written definite an d valid offer to acquire the property before the filing of the complaint for emi nent domain. Filstream Intl Inc. vs. CA, 284 SCRA 716the exercise of the power of e minent domain is clearly superior to the final and executor judgment rendered by the court in an ejectment case. RP vs. PLDT, 26 SCRA 620services were considered embraced in the concep t of property subject to taking under the power of eminent domain. Republic, in the exercise of the sovereign power of eminent domain, may require the telephone company to permit interconnection of the government telephone system and that o f the PLDT, as the needs of government service may require, subject to the payme nt of just compensation to be determined by the court.

41 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos Where Expropriation Suit Is Filed: In the Regional Trial Courtbecause it is incapable of pecuniary estimation

Requisites: 1. Necessitywhen exercised by: a. Congressit is a political question; (Municipality of Meycauayan, Bulac an vs. IAC, 157 SCRA 640) b. Delegatethe determination of whether there is a genuine necessity for the exercise is a justiceable question (Republic vs. La Orden de Po. Benedictino s, 1 SCRA 649). The RTC has the power to inquire to the legality of the exercise of the right of eminent domain and to determine whether there is a genuine necessity for it (Ba

rdillon vs. Brgy. Masili of Calamba, Laguna, G.R. No. 146886, April 30, 2003). Lagcao vs. Judge Labra, G.R. No. 155746, October 13, 2004there was no showing at all why petitioners property was singled out for expropriation by the city ordina nce or what necessity impelled the particular choice or selection. The ordinance stated no reason for the choice of petitioners property as the site of a sociali zed housing project.

2. Private propertyall private property capable of ownership may be expropriated except money and choses in action; may include services . (Republic vs. PLDT, 26 SCRA 620) In City of Manila vs. Chinese Community, 40 Phil. 349, a cemetery open to the pu blic was already in public use and no part of the ground could be taken for othe r public uses under a general authority. The City of Manila was without authorit y to expropriate the property. (The Congress itself should expropriate or there must be special grant.) 3. Taking there is taking when: a. The owner is actually deprived or dispossessed of his property; b. There is practical destruction or material impairment of the value of the pr operty; c. The owner is deprived of the ordinary use of his property; 42 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos d. The owner is deprived of jurisdiction, supervision and control of his property. Requisites for a valid taking: (EMADO) a. The expropriator must enter a private property; b. Entry must be for more than a momentary period; c. Entry must be under warrant or color of authority; d. Property must be devoted to public use or otherwise informally appropriated or injuriously affected; e. Utilization of the property must be in such a way as to oust the owner and deprive him of beneficial enjoyment of the property. (Republic vs. Castelvi, 58 SCRA 336) The taking of private property may include the impairment of the use of the prop erty for which it was intended. In US vs. Causby, 328 US 256, the flight of plan es from a nearby military airport over plaintiffs property below the navigable ai rspace resulting in the ruin of plaintiffs chicken farm was considered compensabl e taking. So also were low landing and take-off flights which made nearby reside ntial area unlivable (Griggs vs. Allegheny County, 369 US 84). This is taking in the constitutional sense.

Avenida, Rizal used to be the commercial center of Manila. However, when the Ligh t Railway Transit (LRT) was built, the commercial value of Avenida was greatly d iminished. The shops and stores had to close. The owners of these establishments suffered losses because of the operation of the LRT along Avenida, Rizal. Are t hey entitled to be paid just compensation? No. SC held that the kind of injury or loss that one must suffer that will justif y the payment of just compensation must be a special kind of injury or loss as i n the case of Causby. If the injury or loss that one suffered is one which he su ffered together with the rest of the community, his only compensation in such a case is the altruistic feeling that somehow he is able to contribute to the comm on good. CANORECO vs. CA, G.R. No. 109338, November 20, 2000, The owner of the property c ut the electric lines alleging that it impaired him of the use of his property. The SC held that the property owner was not justified in cutting the electric l ines. His property becomes the servient estate subject to the encumbrance, and t he acquisition of an easement of right of way filed by an electric power company for the construction of transmission lines falls within the purview of the power of eminent domain. Howe ver, 43 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos since there was an impairment of the use of the property, he is entitled to the payment of just compensation. The establishment of an easement is a form of compensable taking. In NAPOCOR vs. Sps. Gutierrez, G.R. No. 60077, January 18, 1991, the owner of the land was awa rded full compensation against the NAPOCORs argument that the owners were not tot ally deprived of the use of the land and could still plant the same crops as lon g as they did not come into contact with the wires. The Court said: the right of way easement perpetually deprives defendants of their proprietary rights as mani fested by the imposition by the plaintiff upon defendants that below said transm ission lines no plant higher than 3 meters is allowed. Furthermore, because of t he high-tension current conveyed through the transmission lines, danger to life and limbs that may be caused beneath said wires cannot altogether be discounted, and to cap it all, plaintiff only pays the fee to defendant once, while the lat ter shall continually pay the taxes due on said affected portion of their proper ty. In People vs. Fajardo, 104 Phil. 44, a municipal ordinance prohibiting a buildin g which would impair the view of the plaza from the highway was considered takin g. The property owner was held to be entitled to payment of just compensation. In Velarma vs. CA, 252 SCRA 400, the owner of the property can recover possessio n of the property from squatters, even if he agreed to transfer the property to the Government, until the transfer is consummated or the expropriation case is f iled.

Taking under Eminent Domain

Proceeding Only private properties may be taken The private property is taken in order to convert it to public use Taking under Police Power All properties are subject to taking The purpose of taking is to destroy the property l or obnoxious to the public. because it is harmfu

Philippine Press Institute (PPI) vs. COMELEC, 244 SCRA 272, Section 2 of COMELEC Resolution No. 2772, which mandates newspapers of general circulation in every province or city to provide free print space of not less than page as COMELEC sp ace, was held to be an exercise of power of eminent domain, albeit invalid, beca use the COMELEC would not pay for the space to be given to it by the newspapers. 44 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos TELEBAP, Inc. vs. COMELEC, 289 SCRA 1998, the constitutionality of Sec. 92 of BP 881 (requiring radio and television station owners and operators to give to the COMELEC radio and television time free of charge) was challenged on the ground that it violated the due process clause and the eminent domain provision of the Constitution by taking airtime from radio and television broadcasting stations w ithout payment of just compensation. The SC held that all broadcasting, whether by radio or by television stations, is licensed by the government. Airwaves freq uencies have to be allocated as there are more individuals who want to broadcast than there frequencies to assign. A franchise is thus a privilege subject, amon g other things, to amendment by Congress in accordance with the constitutional p rovision that any such franchise or right granted x x x shall be subject to amendment, alteration or repeal by the Congress when the common good so requires (Art. XII, Sec.11). In the granting of the privilege to operate broadcast stations and thereafter su pervising radio and television stations, the State spends considerable public fu nds in licensing and supervising such stations. It would be strange if it cannot even require the licensees to render public service by giving free airtime. x x x As radio and television broadcast stations do not own the airwaves, no private property is taken by the requirement that they provide airtime to the COMELEC. PPI vs. COMELEC TELEBAP vs. COMELEC there was taking of property newspaper space is the private property of the newspaper owners print media do not enjoy privilege there was no taking of private property airwaves are scarce resources, the use is regulated by the State

franchise (privilege) is issued by the State (Art. XII, Sec. 11) Shifting argument alleged in TELEBAP: both PPI and TELEBAP are media of communica tion and information. Equal protection clause was raised as an issue. The SC rul ed that equal protection clause does not guarantee absolute equality. There may be classification. Persons or things ostensibly similarly situated may, nonethel ess, be treated differently if there is a basis for valid classification. 4. Public usepublic interest; public benefit; public nience (Reyes vs. NHA, G.R. No. 147511, January 20, 2003). welfare; public

The general conceptmeeting public need or public exigency; may include i ndirect public benefit or advantage.

45 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos In Estate of Salud Jimenez vs. PEZA, 349 SCRA 240, public use is whatever may be beneficially employed for the general welfare. It has been broadened to include not only uses directly available to the public but also those which redound to their indirect benefit; that only a few would ac tually benefit from the expropriation of the property does not necessarily dimin ish the essence and character of public use. (Manosca vs. CA, 252 SCRA 412) In Filstream Intl Inc. vs. CA, 284 SCRA 716, the fact that the property is less t han hectare and that only a few could actually benefit from the expropriation do es not diminish its public use character, inasmuch as public use now includes the broader notion of indirect public benefit or advantage, including, in particular , urban land reform and housing. By express legislative authority granted by Congress in Sec. 19, RA 7160, LGUs m ay expropriate private property for public use, or purpose, or welfare, for the benefit of the poor and the landless. Thus, in Moday vs. CA, 268 SCRA 568, the S C held that the Sangguniang Panlalawigan of Agusan del Sur was without aut hority to disapprove Bunawan Municipal Resolution No. 43-89 because, clearly, t he Municipality of Bunawan has authority to exercise the power of eminent domain and its Sanggguniang Bayan the capacity to promulgate the assailed resolution. However, in the case of Municipacility of Paraaque vs. V.M. Realty Corporation, 2 92 SCRA 676, the SC declared that there was lack of compliance with Sec. 19 of R A 7160, where the Municipal Mayor filed a complaint for eminent domain over two (2) parcels of land on the strength of the resolution passed by th e Sangguniang Bayan, because what is required by law is an ordinance and not mer e resolution.

In Francia, Jr. vs. Municipality of Meycauayan, G.R. No. 170432, March 24, 2008, the Supreme Court held that the determination of a public purpose for the expropriated property is not a condition precedent before a court may issue a wr it of possession. Once the requisite in Sec. 19 of the Local Government Code are satisfied, the issuance of the writ becomes a ministerial matter for the court. 5. Just Compensationthe full and fair market value of the property taken; it is t he fair market value of the property. It is settled that the market value of the 46 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos property is that sum of money which a person, desirous but not compelled to buy, and an owner, willing but not compelled to sell, would agree on a price to be gi ven and received therefor. Medium: money except: payment other than money (Association of Small Landowners vs. Secretary of Agrarian Reform, 175 SCRA 343), payment is allowed to be made p artlyinbonds, because under the CARP it deals with the revolutionary kind of exp ropriation. The determination of just compensation in eminent domain cases is a judicial fun ction and factual findings of the CA are conclusive on the parties and reviewabl e only when the case falls within the recognized exceptions. (NAPOCOR vs. San Pe dro, G.R. No. 170945, September 26, 2006) Land Bank vs. CA (and DAR vs. CA), 249 SCRA 149Sec. 16(e), RA 6657 the deposit of compensation must be in cash or in Land Bank bonds not in any other form, and certai nly not in a trust account. Reckoning point of market value of the property: FMV at the date of: a) filing of the complaint; or b) the taking whichever is earlier. Rules in Just Compensation-Rule 67, Sec. 6: 1. Determine the actual or basic value of the property. 2. If entire property not expropriated: Value of property consequential benefits + ges (basic or actual) (CB)

consequential dama (CD)

If consequential benefits exceed consequential damages, CB and CD should be disre garded because the BASIC VALUE of the property should be paid in every case. Basic/market valuethe price that may be agreed upon by the parties willing but no t compelled to enter into a contract of sale.

Factors to be considered: Cost of acquisition

Actual or potential uses

47 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos Current value of like properties location and tax declaration in particular case: size of lands, shape,

Consequential damagesinjuries directly caused on the residue of the priv ate property taken by reason of expropriation Example: the property left is in odd shape or with area virtually unusable Consequential Benefitsthe remainder is, as a result of the expropriation, placed in a better location, such as fronting a street where it used to be an interior lot. Association of Small Landowners vs. DAR, 175 SCRA 343 (1989) the power of eminent domain could be used as an implement of police power. The expressed objective o f the law was the promotion of the welfare of the farmers, which came clearly un der the police power of the state. To achieve this purpose, the law provided for the expropriation of agricultural lands (subject to minimum retention l imits for the landowners) to be distributed among the landless peasantry. DARAB determines just compensation (exception to the general rule that courts dec ide the value) DAR may make initial valuation; owner goes to court if not satisfied. Expropriation may be initiated by court action or by legislation. In both instanc es, just compensation is determined by the courts. In Republic vs. Salem Investment Corporation, et al., G.R. No. 137569, June 23, 2000, the Supreme Court held that it is only upon payment of just compensation t hat title over the property passes to the government. Therefore, until the actio n for expropriation has been completed and terminated, ownership over the proper ty being expropriated remains with the registered owner. Consequently, the latte r can exercise all rights pertaining to an owner, including the right to dispose of his property, subject to the power of the State ultimately to acquire it thr ough expropriation. The Dela Ramas make much of the fact that ownership of the land was transferred to the government because the equitable and the beneficial title were already acquired by it in 1983, leaving them with only the naked title. However , xxx the recognized rule, indeed, is that title to the property expropriated sh all pass from the owner to the expropriator only upon full payment of just compensation.

48 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos Legal interest for expropriation cases6% -from the time of taking until just compensation is actually paid -interest must be claimed, otherwise, it is deemed waived Title to the property shall not be transferred until after actual paym ent of just compensation is made to the owner. Genuine Necessity National legislationquestion of necessity is POLITICAL; judiciary has no power to inquire. Delegateliberally in favor of the private property owner; judiciary can inquire into whether the authority conferred upon such delegate correctly and properly exercised/ whether expropriation contemplated by the delegate necessary or wise. May eminent domain be barred by res judicata or law of the case? The principle of res judicata, which finds application in generally all cases and proceedings, cannot bar the right of the State or its agents to expropriate pri vate property. The very nature of eminent domain, as an inherent power of the State, dictates that the right to exercise the power be absolute and u nfettered even by a prior judgment or res judicata. The scope of eminent domain is plenary and, like police power, can reach every form of property which the Sta te might need for public use. All separate interests of individuals in property a re held of the government under this tacit agreement or implied reservation. Not withstanding the grant to individuals, the eminent domain, the highest and most exact idea of property, remains in the government, or in the aggregate body of t he people in their sovereign capacity; and they have the right to resume the pos session of the property whenever the public interest requires it. Thus, the Stat e or its authorized agents cannot be forever barred from exercising said right b y reason alone of previous non-compliance with any legal requirement. While the principle of res judicata does not denigrate the right of the State to exercise eminent domain, it does not apply to specific issues decided in a prev ious case. For example, a final judgment dismissing an expropriation suit on the ground that there was no prior offer precludes another suit raising the same is sue; it cannot, however, bar the State or its agent, from thereafter complying w ith this requirement, as prescribed by law, and subsequently exercising its powe r of eminent domain over the same property. [Municipality of Paraaque vs. V.M. R ealty Corp., 292 SCRA 678 (1998)]

49 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

When may the property owner be entitled to the return of the expropriated proper ty in eminent domain cases? In Provincial Government of Sorsogon vs. Villaroya, the unpaid landowners were a llowed the alternative remedy of recovery of the property. The Court ruled that u nder ordinary circumstances, immediate return to the owners of the unpaid proper ty is the obvious remedy. However, in cases where land is taken for public use, public interest must be co nsidered. (Estate of Salud Jimenez vs. PEZA, 349 SCRA 240)

Right of landowner in case of non-payment of just compensationas a rule, it does not entitle the landowners to recover possession of the expropriated lots, but o nly to demand payment of the fair market value of the property. (Republic vs. CA , G.R. No. 146587, July 2, 2002; Reyes vs. NHA, G.R. No. 147511, January 20, 200 3). However, in RP vs. Vicente Lim, G.R. No. 161656, June 29, 2005, the SC said that the facts of the case do not justify the application of the rule. In this case, the Republic was ordered to pay just compensation twice; thefirst was in the ex propriation proceedings, and the second, in the action for recovery of possessi on. Fifty-seven (57) years have passed since then. The Court construed the Repub lics failure to pay just compensation as a deliberate refusal on its part. Under such circumstances, recovery of possession is in order. It was then held that wh ere the government failed to pay just compensation within 5 years from the finality of the judgment in the expropriation proceedings, the owners conc erned shall have the right to recover possession of their property.

Plaintiffs right to dismiss the complaint in Eminent Domain In expropriation cases, there is no such thing as the plaintiffs matter-of-right to dismiss the complaint, precisely because the landowner may have already suffere d damages at the start of the taking. The plaintiffs right to dismiss the complai nt has always been subject to court approval and to certain conditions. (NAPOCOR & Pobre vs. CA, G.R. No. 106804, August 12, 2004) Right to repurchase or re-acquire the property The property owners right to repurchase the property depends upon the c haracter of the title acquired by the expropriator, e.g., if the land is expropr iated for a particular purpose with a condition that when the purpose is ended o r abandoned, the 50 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos property shall revert to the former owner, then the former owner can re-acquire the property. In this case, the terms of the judgment in the expropriation case were very clear and unequivocal, granting title to the lot in fee simple to the Republic. No condition on the right to repurchase was imposed. (Mactan-Ce bu International Airport Authority vs. CA, G.R. No. 139495, Novermber 27, 2000

) Republic vs. CA, G.R. No. 146587, July 2, 2002, in arguing for the return of the ir property on the basis of non-payment, respondents ignored the fact that the r ight of the expropriatory authority is far from that of an unpaid seller in ordi nary sales to which the remedy is rescission may perhaps apply. Expropriation is an in rem proceeding, and after condemnation, the paramount title is in the pub lic under a new and independent title.

POWER OF TAXATIONis the power to demand from the members of society their proport ionate share/contribution in the maintenance of the government. 51 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos It is the power by which the State raises revenue to defray the necessary expens es of the Government.

Scope: covers persons, property or occupation to be taxed within the taxing juri sdiction. It is so pervasive; it reaches even the citizens abroad and their inco me outside the Philippines; all the income earned in the Philippines by a citize n or alien. Basis: power emanating from necessity (lifeblood doctrine) Importance of Taxation: 1. No constitutional government can exist without it; 2. It is one great power upon which the whole national fabric is based; 3. It is necessary for the existence and prosperity of the nation; and 4. It is the lifeblood of the nation. Who may exercise? Generally, the legislature, but also upon valid delegation: 1. Lawmaking bodies of LGUs (Sec. 5, Art. X); 2. President (limited extent-delegated tariff powers), under Sec. 28 (2), Art. VI of the Constitution or as an incident of emergency powers that Congress may g rant to him under Sec. 23 (2), art. VI. Purpose: unavoidable obligation of the government to protect the people and exte nd them benefits in the form of public projects and services. Publicpurposeproceeds must be devoted to public use. It includes INDIRECT public advantage/benefits. The mere fact that the tax will be directly enjoyed by priva te individual does not make it INVALID so long as the same link to public welfar e is established. Requisites: 1. It must be for public purpose; 2. It shall be uniform; 3. Person or property taxed shall be within the jurisdiction of the taxing auth ority; 4. In assessment & collection, notice and hearing shall be provided. Limitations on the Power of Taxation Inherent limitations: 1. Public purpose; 52 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos 2. 3. 4. 5. Non-delegability of power; Territoriality or Situs of taxation; Exemption of government from taxation; International comitygenerally accepted principles of international law

Constitutional limitations:

1. Due process of lawtax should not be confiscatory. Due process does not require previous notice and hearing before a law prescribing fixed/specific taxes on certain articles may be enacted. If the tax to be collected is to be based on the value of the taxable propertyad v alorem taxthe taxpayer is entitled to be notified of the assessment proceeding an d to be heard on the correct valuation. 2. Equal protection of lawtaxes should be uniform and equitable. 3. Uniformitypersons/things belonging to the same class shall be taxed at the sa me rate Equitabilitytaxes should be apportioned among the people according to their capacity to pay Progressivity 4. Non-impairment of contracts 5. Non-imprisonment for non-payment of poll tax 6. Revenue and tariff bills must originate in the HOR 7. Non-infringement of religious freedom 8. Delegation of legislative authority to the President to fix tariff rates, im port and export quotas, tonnage and wharfage dues 9. Tax exemption of properties actually, directly and exclusively used for reli gious, charitable and educational purposes 10. Majority vote of all the members of Congress required in case of legislative grant of tax exemptions 11. Non-impairment of the SCs jurisdiction in tax cases 12. Tax exemption of revenues and assets of, including grants, endowmen ts, donations, or contributions to, educational institutions. Double taxationadditional taxes are laid: 1. On the same subject; 2. By the same taxing authority; 3. During the same taxing period; and 4. For the same purpose.

53 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos Double taxation is allowed by law. However, it will not be allowed if the same w ill result in violation of the equal protection clause. What is prohibited is di rect double taxation. In Punzalan vs. Municipal Board of Manila, 95 Phil. 46, there is no double taxat ion if one tax is imposed by the LGU and the other by the National Government. Taxesthe enforced proportional contributions from persons and property levied by the State by virtue of its sovereignty for the support of the government and for all public needs. TAX 1. AS TO BASIS LICENSE

Power of taxationto raise revenue 2. AS TO LIMITATION

Police powerto regulate

Rate or amount to be collected is unlimited provided it is not confiscatory 3. AS TO OBJECT Amount is limited to cost of: a)issuing the license; and b)necessary inspection of police surveillance Imposed on persons or property mething but privilege is revocable 4. AS TO EFFECT OF NON-PAYMENT Business or activity does not become illegal Business becomes illegal Tax Debt due to the government in its sovereign capacity due to the government in its corporate capacity Taxes cannot be subject to off-setting or compensation for the simple reason tha t the government and the taxpayers are not creditors and debtors of each other. (Philex Mining Corp. vs. CIR, 294 SCRA 687) Paid for privilege of doing so

Tax exemptions: -discretion of the legislature 1. Sec. 28 (4), Art. VI 2. Sec. 28 (3), Art. VI 54 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos 3. 4. 5. not re Sec. 4 (3), Art. XIV Sec. 4 (4), Art. XIV Where tax exemption is granted gratuitously, it may be revoked at will; but if granted for a valuable considerationdeemed to partake of the natu of contract and obligation thereofprotection against impairment.

In Lladoc vs. CIR, 14 SCRA 292, a parish priest accepted a donation to be used f or the construction of a church. The money was spent for the purpose. The CIR im posed tax. The objection was based on constitutional exemption of church propert ies from taxes. The SC rejected. Exemption referred only to property taxes impos ed on lands, buildings and improvements used for religious purposes. The tax in this case is not an ad valorem tax on the church itself but an excise tax impose d on the priest (not on the properties) for his exercise of the privilege to acc ept the donation. Territoriality in Taxationthe power to tax operates only within the ter

ritorial jurisdiction of the taxing authority. It cannot be exercised beyond the boundaries except under certain circumstances. Taxable Situs of Real Propertiesthe place where they are situated Mobilia Sequntur Personamthe intangible personal property such as credits, bank d eposits, bonds, corporate stocks which do not admit of actual location and do no t have inherent value but mere evidence of debts or property are usually taxable in the state of residence of the owner. Uniformity in Taxationall taxable articles, or kinds of property of the same clas s, shall be taxed at the same rate. There is uniformity when a tax operates in t axation with the same force and effect on its subject wherever found. Equality of Taxationtaxes shall be strictly proportional to the relative value of the taxable property.

Article III BILL OF RIGHTS Significance. Government is powerful. When limited, it becomes tyrannical. It is a guarantee that there are certain areas of persons life, liberty or property which 55 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos government power may not touch. All the powers of the government (police power, power of eminent domain and power of taxation) are limited by the Bill of Rights. Classification of Rights: 1. Political Rightsgranted by law to members of a community in relation to their direct or indirect participation in the establishment or administration of gove rnment. 2. Civil Rightsrights which municipal law will enforce at the instance of privat e individuals for the purpose of securing them the enjoyment of their means of h appiness. 3. Social and Economic Rightsthese are the rights which generally require implem enting legislation. (Article XIII) Doctrine of Preferred Freedom (Hierarchy of Rights)some rights are preferred PBM Employees Org. vs. PBM Co., Inc., 51 SCRA 189 While the Bill of Rights also protects property rights, the primacyofhumanrig hts over property is recognized. Because these freedoms are delicate and vu lnerable, as well as supremely precious in our society and the threat of sanctions may deter their exercise almost as potently as the actual application of sancti

ons, they need breathing space to survive, permitting government regulation only wit h narrow specificity. Property and property rights can be lost thru prescription; but human rights are imprescriptible. In the hierarchy of civil liberties, the rights of free expression and of assembl y occupy a preferred position as they are essential to the preservation and vita lity of our civil and political institutions; and such priority gives these liber ties the sanctity and the sanction not permitting dubious intrusions. The superiority of these freedoms over property rights is underscored by the fact that a mere reasonable or rational relation between the means employed by the law and itsobjectorpurposethat the law is neither arbitrary nor discriminator y nor oppressivewould suffice to validate a law which restricts or impa irs property rights. On the other hand, a constitutional or valid infringement of human rights requir es a more stringent criterion, namely existence of a grave and immediate dan ger of a substantive evil which the State has the right to prevent.

Sec. 1, Art. III 56 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos No person shall be deprived of life, liberty or property without due process of law nor shall any person be denied the equal protection of the laws.

LIMITATIONS OF SOVEREIGNTY Inherent in sovereignty, and therefore not even required to be conferred by the Constitution, are the police, eminent domain, and taxation powers. The Bill of Rights, notably the due process, equal protection and non-impairment clauses, is a means of limiting the exercise of these powers by imposing on the State the o bligation to protect individual rights. The Bill of Rights is addressed to the State, notably the government, telling it what it cannot do to the individual. A. DUE PROCESS OF LAW That which hears before it condemns, which proceeds upon inquiry and renders jud gment only after trial. Applies to all persons, without regard to any difference in race, color or nation ality Artificial personscovered but only insofar as their property is concerned. Extends to aliens Includes the means of livelihood Responsiveness to the supremacy of reason, obedience to the dictates of justice. (Ermita-Malate Hotel & Motel Operators Association vs. City of Manila, 20 SCRA

849) Lifeincludes the right of an individual to his body in its completeness, free fro m dismemberment, and extends to the use of God-given faculties which make life e njoyable. Libertyincludes the right to exist and the right to be free from arbitrary person al restraint or servitude. x x x It includes the right of the citizen to be free to use his faculties in all lawful ways. (Rubi vs. Provincial Board of Mindoro, 39 Phil 660) Propertyis anything that come under the right of ownership and be the subject of contract. It represents more than the things a person owns; it includes the righ t to secure, use and dispose of them. Public office is not a property which one may acquire a vested right , it is nevertheless a protected right. (Bince vs. COMELEC, 218 SCRA 782) Scope/Aspects of Due Process: 57 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos 1. Procedural Due Processthe method or manner by which the law is enforced. It serves as a restriction on actions of judicial and quasi-judicial agencies of the government. Requisites: (non-criminal cases) a. An impartial court or tribunal clothed with judicial power to hear and deter mine matter before it; b. Jurisdiction properly acquired over person of defendant and over pro perty which is the subject matter of the proceeding; c. Opportunity to be heard; and d. Judgment rendered upon lawful hearing and based on evidence addu ced. Impartial Court or TribunalJudges must not only be impartial but must also appear to be impartial as an added assurance to the parties that his decision will be just. In Anzaldo vs. ClaveJacobo Clave, acting as Chairman of CSC, rendered a decision against petitioner. When petitioner appealed to the Office of the President, the same Jacobo Clave, but this time acting as Presidential Executive Assistant, up held his own earlier decision. The SC held that this violates fundamental fairne ss required by due process. A public officer who decided the case should not be the same person to decide it on appeal because he cannot be an impartial judge. People vs. Mendenilla (2001), judges have as much interest as counsel in the ord erly and expeditious presentation of evidence, and have the duty to ask question s that would elicit the facts on the issues involved, clarify ambiguou s remarks by witnesses and address the points overlooked by counsel. Questions which merely clear up dubious points and elicit relevant evidence are within the prerogative of a judge to ask. Sec. 14 (1), Art. IIINo person shall be held to answer for a criminal offense wit hout due process of law. ---This is procedural due process in criminal cases

Requisites of Criminal Due Process: a. Accused has been heard in a court of competent jurisdiction; b. Accused is proceeded against under the orderly processes of law; c. Accused is given notice and opportunity to be heard; d. Judgment rendered within authority of constitutional law If the prosecution produces the conviction based on untrue evidence, then it is g uilty of depriving the accused of due process. Thus false testimony can be question ed by the accused regardless of the time that lapsed. (Mejia vs. Pamaran, No. L-56741, April 15, 1988)

58 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos 2. Substantive Due Processit requires that the law itself, not merely t he procedures by which the law would be enforced, is fair, reasonable and just. This serves as a restriction on the governments law and rule-making powers; a pro hibition of arbitrary laws. The heart to substantive due process is the reasonableness, or the absence of exerc ise of arbitrary power. These are necessarily relative concepts which depend on the circumstances of every case. As a general rule, when the State acts to interfere with life, liberty, or proper ty, the presumption is that the action is valid. In rare cases, as in prior restr aint, there is a presumption of invalidity. Requisites: a. Interest of the public; b. Means employed are reasonably necessary for accomplishment of purpose and no t unduly oppressive. The legislature may not, under the guise of protecting the public interest, arbitrarily interfere with private business or impose unusual and unnecessary re strictions upon lawful occupations. Void-for-vagueness Rulea criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden b y the statute, or is so indefinite that it encourages arbitrary and erratic arr ests and convictions is void for vagueness. The constitutional vice in a vague o r indefinite statute is the injustice to the accused in placinghimontrialforanof fense,thenatureofwhichheis givenno fair warning. A law is vague as not to satisfy the due process need for notice when it lacks com prehensiblestandards that men of common intelligence must necessarily guess as to its meaning and differ as to its application or is so indefinite that it encourag es arbitrary and erratic arrests and convictions. It is injustice to the accused in placing him on trial for an offense, the natur e of which he is given no fair warning. It is repugnant to the Constitution in 2 aspects: 1. It violates due process for failure to accord persons, especially the partie s targeted by it, fair notice of the conduct to avoid; and 2. It leaves law enforcers unbridled discretion in carrying out its provisions and become an arbitrary flexing of the Government muscle.

The act must be utterly vague on its face, that is to say, it cannot be clarifie d by either saving clause or by construction. (People vs. Dela Piedra, 350 SCRA 163, January 24, 2001) Overbreadth Doctrinedecrees that a governmental purpose may not be 59 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. Facial Challengea facial challenge is allowed to be made to a vague statute and t o one which is overbroad because of possible chilling effect upon protected speech . On its face invalidation of statutes results in striking them down entirely on the ground that they might be applied to parties not before the Court whose activit ies are constitutionally protected. It constitutes a departure from the case a nd controversy requirement of the Constitution and permits decisions to be made without concrete factual settings and in sterile abstract contexts. Tanada vs. Tuvera, 146 SCRA 446 (1986), Motion for reconsideration. xxx [ T]he clause "unless it is otherwise provided" refers to the date of effectivity and not to the requirement of publication itself, w/c cannot in any event be omi tted. This clause does not mean that the legislature may make the law effective immediately upon approval, or on any other date, w/o its previous publication. Publication is indispensable in every case, but the legislature may in its discr etion provide that the usual 15-day period shall be shortened or extended. It is not correct to say that under the disputed clause publication may be dispe nsed w/ altogether. The reason is that such omission would offend due process i nsofar as it would deny the public knowledge of the laws that are supposed to go vern it. Conclusive presumption of knowledge of the law.-- The conclusive presumption th at every person knows the law presupposes that the law has been published if the presumption is to have any legal justification at all. The term laws should refer to all laws and not only to those of general applicat ion, for strictly speaking all laws relate to the people in general albeit there are some that do not apply to them directly. An example is a law granting citi zenship to a particular individual, like a relative of Pres. Marcos who was decr eed instant naturalization. RULE: All statutes, including those of local application and private laws, shal l be published as a condition for their effectivity, w/c shall begin 15 days aft er publication unless a different effectivity date is fixed by the legislature. Coverage: Covered by this rule are PDs and EOs promulgated by the Pres. in the exercise of legislative powers. Administrative rules and regulations must also be published if their purpose is to enforce or implement existing law pursuant t o a valid delegation. 60 2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos Interpretative regulations and those merely internal in nature, i.e., regulating only the personnel of the administrative agency and not the public, need not be published. Neither is publication required of the so-called letters of instruct ions issued by administrative superiors concerning the rules or guidelines to be followed by their subordinates in the performance of their duties. Publication must be in full or it is no publication at all since its purpose is to inform the public of the contents of the laws. The mere mention of the numbe r of the PD, the title of such decree, its whereabouts, the supposed date of eff ectivity, and in a mere supplement of the OG cannot satisfy the publication requ irement. This is not even substantial compliance. Publication of laws is part of substantive due process. It is imperative to the v alidity of laws, PDs, EOs, Administrative rules and regulations except interpret ative legislations. (Taada vs. Tuvera, No. L-63915, December 29, 1986) Notes: In the original case Tanada vs. Tuvera, 136 SCRA 27 (1985), the SC ruled that as a matter of substantive due process, any law must be published before t he people can be expected to observe them. But, according to a split decision, publication need not be made in the Official Gazette. It is enough that it be p ublished in a newspaper of general circulation. After the EDSA revolution, upon the reconstitution of the S C, the original judgment was reconsidered, and the SC now ruled that p ublication must be made in the Official Gazette, pursuant to CA 638 and the C ivil Code, unless a law "provides otherwise" that is, a different mode of publi cation. What must be published are (1) all laws of general application, and even those n ot of general application like (2) private laws affecting only particular indi viduals, e.g., legislative grant of citizenship, (3) laws of local app lication, and (4) rules and regulations of a substantive character. Thi s means not only the title but the entire law. When? Forthwith, that is, imme diately. Where? Only in the Official Gazette Secretary of Justice vs. Lantion (2000), an extraditee is not entitled to notice and hearing during the evaluation stage of the extradition process. PD 1069 aff ords an extraditee sufficient opportunity to meet the evidence against him once the petition is filed in court. During the evaluation stage, right to know is wi thheld to accommodate the more compelling interest of the Stateto prevent escape of potential extradite which may be precipitated by premature information on the basis of the request for extradition. Roxas vs. Vasquez (2001), lack of not ice to, participation of complainants at the REINVESTIGATION does not rend er the resolution of the Ombudsman null and void. (But in preliminary investigat ion, their participation is needed.) Exceptions to Notice and Hearing Requirements Philcomsat vs. Alcuaz (1989)without conducting any hearing, NTC ordered PHILCOMSA T to reduce its rates by 15%. PHILCOMSAT challenged the validity of the order on the ground that it is an exercise of a quasi-judicial power without the require d 61 2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos hearing. NTC replied that the order was merely interlocutory. The SC held that f ixing rates is quasi-judicial in nature. Hence, unlike in the exercise of quasilegislative power, it must be preceded by a hearing. The fact of the order being merely interlocutory does not alter the situation because for all practical pur poses it is final as to the period covered. BUT, in Radio Communications vs. NTC (1990)the Court upheld the temporary rates g ranted by the NTC asserting that the law allows the NTC to approve temporary rat e requested by public service agency provided hearings are held within 30 days t hereafter. As a general rule, notice and hearing, as the fundamental requirements of procedu ral due process, are essential only when an administrative body exercises its QU ASI- JUDICIAL function. In the exercise of its EXECUTIVE or LEGISLATIVE functions, such as issuing rules and regulations, an administrative body need not comply with the requir ements of notice and hearing. Suntay vs. People (1957)the passport of a person sought for the commission of a c rime may be cancelled without notice and hearing. Equitable Banking Corp. vs. Calderon, G.R. No. 156168, December 14, 2004, the Sc ruled that no malice or bad faith attended the Banks dishonor of Calderons credit card, inasmuch as the dishonor was justified under its Credit Card Agreement wh ich provided that the cardholder agreed not to exceed his approved credit limit, otherwise the card privilege would be automatically suspended without notice to the cardholder. Appeal and due process Appeal is not a natural right nor is it a part of due process; generally, it may be allowed or denied by the legislature in its discretion. But where the Consti tution gives a person the right to appeal, denial of the right to appeal constit utes a violation of due process. Where there is statutory grant of the right to appeal, denial of that remedy also constitutes a denial of due process. Preliminary Investigation and due process Preliminary investigation is not a constitutional right, but is merely a right conferred by statute (Serapio vs. Sandiganbayan, G.R. No. 148468, Janu ary 28, 2003). It may be waived expressly or by failure to invoke it (Benedicto vs. CA, G.R. No. 125359, September 4, 2001). The right may be forfeited by inaction, and cannot be invoked for the first time on appeal (People vs. Lagao, G.R. No. 1184 57, April 8, 1997). Go vs. CA, 206 SCRA 138, when there is statutory grant of the right to prelimina ry investigation, denial of the same is an infringement of the due process claus e. The right to preliminary investigation is substantive, not merely f ormal or 62 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

technical. To deny it to the petitioner would deprive him of the full measure of his right to due process. (Yusop vs. Sandiganbayan, G.R. No. 138859-60, Februar y 22, 2001)

Prejudicial Publicity To warrant a finding of prejudicial publicity there must be allegation and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity. Petitioners cannot just rely on the subliminal effects of publicity because these are basically unbeknown and beyond knowing. (Webb vs. De Leon, 1995)

Does the due process clause encompass the right to be assisted by counsel during an administrative inquiry? No. The right to counsel, which cannot be waived unless the waiver is in writing and in the presence of counsel, is a right afforded a suspect or an accused dur ing custodial investigation. It is not an absolute right and may, thus, be invok ed or rejected in a criminal proceeding and, with more reason, in an administrat ive inquiry. While investigations conducted by an administrative body may at times be akin to a criminal proceeding, the fact remains that under existing laws, a p arty in an administrativeinquirymayormaynotbeassistedbycounsel, irrespective of the nature of charges and of the respondents capacity to represent himself, and n o duty rests on such body to furnish the person being investigated with counsel. In an administrative proceeding,arespondenthastheoptionofengagingtheservicesofc ounselornot. Thus, the right to counsel is not imperative in administrative inv estigations because such inquiries are conducted merely to determine whether th ere are facts that merit disciplinary measures against erring public officers an d employees, with the purpose of maintain the dignity of government service. The right to counsel is not indispensable to due process unless required by the Constitution or law. (Lumiqued vs. Exevea, 282 SCRA 125) Is an extraditee entitled to notice and hearing before the issuance of a warrant of arrest once the petition for extradition is filed in court? Both on statutory and constitutional grounds, the answer is no. In Government of USA vs. Hon. Puruganan, G.R. No. 148571, September 24, 2002: 1. On the basis of Extradition Law Sec. 6 of PD 1069Extradition Law, uses the word immediate to qualify the arrest of the accused. This qualification would be rendered nugatory by setting for hearin g the issuance of the arrest warrant. Hearing entails sending notices to the opp osing parties, receiving facts and arguments from them, and giving them time to prepare and present such facts and arguments. Arrest subsequent to a hearing ca n no longer be considered immediate. The law could not have 63 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos intended the word as a mere superfluity but, on the whole, as a means of impa iring a sense of urgency and swiftness in the determination of whether a warrant

or arrest should be issued. By using the phrase if it appears, the law further conveys that accuracy is not as important as speed at such an early stage. The trial court is not expected to m ake an exhaustive determination to ferret out the true and actual situation, imm ediately upon the filing of the petition. From the knowledge and the material th en available to it, the court is expected merely to get a good first impressiona prima facie findingsufficient to make a speedy initial determination as regards t he arrest and detention of the accused. 2. On the basis of the Constitution Even Sec. 2 of Article III does not require a notice and hearing before the issu ance of a warrant of arrest. To determine probable cause for the issuance of arrest warrants, theConstitution itself requires only examination--under oath or affirmationof complainants and t he witnesses they may produce. There is no requirement to notify and hear the ac cused before the issuance of warrant of arrest.

B. EQUAL PROTECTION CLAUSE The equal protection of the law is embraced in the concept of due process, as ev ery unfair discrimination offends the requirements of justice and fair play. It has nonetheless been embodied in a separate clause in Section 1 of Article III t o provide for a more specific guaranty against any form of undue favoritism or h ostility from the government. Arbitrariness in general may be challenged on the basis of the due process clause. But if the particular act assailed partakes of an unwarranted partiality or prejudice, the sharper weapon to cut it down is the equal protection clause. It simply requires that all persons or things, similarly situated should be trea ted alike, both as to rights conferred and responsibilities imposed. Similar sub jects, in other words, should not be treated differently, so as to give undue fa vor to some and unjustly discriminate against others. It does not require the universal application of the laws on all persons or thin gs without distinction. This might in fact sometimes result in unequal protectio n, as where, for example, a law prohibiting mature books to all persons, regardl ess of age, would benefit the morals of the youth but violate the liberty of adu lts. What the clause requires is equality among equals as determined according t o a valid classification. By classification is meant the grouping of persons or things similar to each other in certain particulars and different from all other s in these same particulars. (Philippine Judges Association vs. Prado, 227 SCRA 703) 64 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Who are protectedall persons or things similarly situated should be treated alike , both as to rights conferred and responsibilities imposed. Natural and juridica l persons are entitled to this guarantee; but with respect to artificial persons , they enjoy the protection only insofar as their property is concerned.

Scope: Political, Economic and Social Equality Art. XIII, Secs. 1&2 (social justice)political & economic Section 1The Congress shall give highest priority to the enactment of measures th at protect and enhance the right of all the people to human dignity, reduce soci al, economic, and political inequalities, and remove cultural inequities by equi tably diffusing wealth and political power for the common good. To this end, the State shall regulate the acquisition, ownership, use, and dispo sition of property and its increments. Section 2The promotion of social justice shall include the commitment to create economic opportunities based on freedom of initiative and self-reliance.

Art. XIII, Sec. 3 (protection to labor) Article XII, Section 10 (nationalization of business) FILIPINO FIRST POLICYThe Co ngress shall, upon recommendation of the economic and planning agency, when the national interest dictates, reserve to citizens of the Philippines or to corpora tions or associations at least sixty per centum (60%) of whose capital is owned by such citizens, or such higher percentage as Congress may prescribe, certain a reas of investments. The Congress shall enact measures that will encourage the f ormation and operation of enterprises whose capital is wholly owned by Filipinos . In the grant of rights, privileges, and concessions covering the national econom y and patrimony, the State shall give preference to qualified Filipinos. The State shall regulate and exercise authority over foreign investments within its national jurisdiction and in accordance with its national goals and prioriti es. Art. XII, Sec. 2(2) (reservation of marine resources)economic The State shall protect the nations marine wealth in its archipelagic waters, ter ritorial sea, and exclusive economic zone, and reserve its use and enjoyment exc lusively to Filipino citizens. Art. III, Sec. 11 (free access to the courts)political & economic Free access to the courts and quasi-judicial bodies and adequate legal assistanc e shall 65 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos not be denied to any person by reason of poverty. Art. VIII, Sec. 5(5) (legal aid to the poor)xxx Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and pro cedure in all courts, the admission to the practice of law, the IBP, and legal a ssistance to the underprivileged. Such rules shall provide a simplified and inex pensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substan tive rights. Rules of procedure of special courts and quasi-judicial bodies s hall remain effective unless disapproved by the Supreme Court.

Art. IX-C, Sec. 10 (protection of candidates)political Bona fide candidates for any public office shall be free from any form of harass ment and discrimination. Art. II, Sec. 26 (public service)The State shall guarantee equal access to opport unities for public service, and prohibit political dynasties as may be defined b y law. Art. II, Sec. 14 (equality of women and men)The State recognizes the role of wome n in nation-building, and shall ensure the fundamental equality before the law o f women and men. There are areas of economic activity which can be limited to Filipinos. The Con stitution itself acknowledges this in various places - exploitation of marine we alth (Article XII, Section 2, paragraph 2), certain areas of investment (Article XII, Section 10), to name a few.

In Ichong v. Hernandez, 201 Phil. 1155 (1937), the SC upheld the validity of the law which nationalized the retail trade. For the protection of the law can be observed by the national interest. But there are areas where aliens cannot be kept away for the simple reason that they cannot be deprived of a common means of livelihood, especially when they ar e admitted to the country as immigrants.

Valid Classification: Persons or things ostensibly similarly situated may, nonetheless, be treated dif ferently if there is a basis for valid classification. The requisites are: 1. Classification must be based on al differences; substantial distinctions which make for re

66 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos 2. The distinction must be germane to the purpose of the lawthe distinctions whi ch are the bases for the classification should have a reasonable relation to the purpose of the law; 3. Not limited to existing conditions only; and 4. It must apply to all members of the same class. Philippine Judges Association vs. Prado, 227 SCRA 703, The withdrawal of frankin g privileges formerly granted to the judiciary but remained with the e xecutive and legislative departments, was declared unconstitutional, because th e three branches of government are similarly situated. Villegas vs. Hui Chiong, the ordinance imposing a work permit fee of P50.00 upon all aliens desirous of obtaining employment in the City of Manila was declared unconstitutional, because the fee imposed was unreasonable and excessive, and it

failed to consider valid substantial differences in situation among individual aliens who were required to pay it.

Sexual Discrimination Phil. Association of Service Exporters vs. Drilon, 163 SCRA 386, female domestic working abroad were in a class by themselves because of the special risks to wh ich their class was exposed. Administration of Justice Chavez vs. PCGG, G.R. No. 130716, December 9, 1988, Special grant of exemption i n favor of the Marcoses as contained in the agreement entered into by PCGG wi th Marcos Family to compromise the ill-gotten wealth cases (exempt from all taxe s) filed by the former against the latter is a CLASS LEGISLATION, vilative of th e equal protection clause.

Lacson vs. Executive Secretary, G.R. No. 128096, January 20, 1999, petitioners an d intervenors right to equal protection was not violated by the enactment of RA 8 249 because the law was not directed only to Kuratong Baleleng cases. Every clas sification made by law is presumed reasonable, and the party who challenges the law must present proof of arbitrariness. Public Policy Ceniza vs. COMELEC, 95 SCRA 763, The law excluding residents of Mandaue City fro m voting for provincial candidates was justified as a matter of legislative discr etion and that equal protection would be violated only if group within the city w ere allowed to vote while others were not. 67 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos Olivares vs. Sandiganbayan, 248 SCRA 700, when the mayor issued permit in favor of unidentified vendors while imposing numerous requirements upon Baclaran Credi t Cooperatives, he violated the equal protection clause when failed to show that the two were not similarly situated. Tiu vs. CA, G.R. No. 127410, January 20, 1999, the executive order granting tax and duty incentives only to business and residents within the secured a rea of Subic Special Economic Zone and denying them to those who live within th e zone but outside such fenced in territory is VALID. The Constitution does not require absolute equality among residents. It is enoug h that all persons under like circumstances or conditions are given the same pri vileges and required to follow the same obligations. Classification based on valid and reasonable standards does not violate the equa l protection clause. International School Alliance of Educators vs. Quisumbing, G.R. No. 128845, June 1, 2000, there were no reasonable distinctions between the services rendered by foreign-hires and local-hires as to justify the disparity in salaries paid to those teachers.

Relative Constitutionality: Central Bank Employees Association vs. BSP, G.R. No. 148208, December 15, 2004, the constitutionality of a statute cannot, in every instance, be determine d by a mere comparison of its provisions of the Constitution since the statute m ay be constitutionally valid as applied to one set of facts and invalid in appli cation to another. A statute valid at one time may become void at anothe r time because of altered circumstances. Thus, if a statute in its practical operation becomes arbitrary or confiscatory, its validity, even though affirmed by a former adjudication, is open to inquiry and investigation in the light of changed conditions. In Dumlao v. Comelec, 95 SCRA 392 (1980), the SC upheld the validity of sec. 4 o f Batas Blg. 52 disqualifying retired elective local officials who have received retirement benefits and would have been 65 years old at the start of the term. It does not violate equal protection, for it gives younger blood the opportunit y to run the local government. In Igot v. Comelec, 95 SCRA 392 (1980), however, the disqualification of candida tes convicted or simply charged with national security offenses was struck down as unconstitutional, for violating the presumption of innocence and thus ultim ately the equal political protection.

68 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos Sec. 2, Article III Searches and Seizures The right of the people to be secure in their persons, houses, papers, and effec ts against unreasonable searches and seizures of whatever nature and for any pur pose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he ma y produce, and particularly describing the place to be searched and the persons or things to be seized.

Scope: The protection is available to all persons, including aliens, whether acc used of crime or not. Artificial persons are also entitled to the guarantee, alt hough they may be required to open their books of accounts for examination by th e State in the exercise of police and taxing powers. The right is personal; it may be invoked only by the person entitled to it (Stonehill vs. Diokno, 20 SCRA 383). As such, the right may be waived either expressly or impliedly, but the waiver must be made by the pe rson whose right is invaded, not by one who is not duly authorized to effect suc h waiver. (People vs. Damaso, 212 SCRA 457)

SEARCH WARRANTmay be said to particularly describe the things to be seized when t he description therein is as specific as the circumstances will ordinarily allow ; or when the description expresses a conclusion of fact, not of law, by which t he warrant officer may be guided in making the search and seizure; or when the t hings described are limited to those which bear direct relation to the offense f or which the warrant is being issued. WARRANT OFARRESTsaid to particularly describe the person to be seized if it conta ins the name of the person to be arrested. Requisites of a valid warrant: 1. It must be based upon probable causesuch facts and circumstances ante cedent to the issuance of the warrant that in themselves are sufficient to induc e a cautious man to rely on them and act in pursuance thereof. It consists of a reasonable ground of suspicion supported by circumstances suffi ciently strong in themselves to warrant a cautious man in believing accused to b e committing the offense or to be guilty of the offense. For a search warrantsuch facts and circumstances which would lead a reasonably di screet and prudent man to believe that an offense has been committed and that th e objects sought in connection with the offense are in the place sought to 69 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos be searched. (Burgos v. Chief of Staff, 133 SCRA 800) For a warrant of arrestsuch facts and circumstances which would lead a re asonably and prudent man to believe that an offense has been committed by the pe rson sought to be arrested (Webb vs. De Leon, G.R. No. 121234, August 23, 1995) In Stonehill v. Diokno, 20 SCRA 385 (1967), 42 search warrants were issued for a lleged violation of Central Bank Laws, the Tariff and Customs Code, the NIRC, an d the Revised Penal Code. The SC voided the warrants on the ground that it was i mpossible for the judge to have found probable cause in view of the number of la ws alleged to have been violated by the petitioner. How could he eve n know what particular provision of each law had been violated? If he did not know this, how could it be determined if the person against whom the warrant wa s issued was probably guilty thereof? In truth, this was a fishing expedition, which violated the sanctity of domicile and privacy of communications. To estab lish the requirement of probable cause, the rule is: One crime, one warrant. 2. The probable cause must be determined personally by the judge. The judge shall: a. Personally evaluate the report and the supporting documents su bmitted by the public prosecutor regarding the existence of probable cause and o n the basis thereof, issue a warrant of arrest; or b. If the basis thereof he finds no probable cause, he may disregard the prosec utors report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause. Under the 1987 Constitution, only a judge can issue a warrant; the offensive and much abused phrase "and other responsible officer as may be authorized by law"

in the 1973 Constitution has been removed.

Search warrant Warrant of arrest The judge must personally examined in the form of searching Q&As, in writi ng and under oath, the complainant and any witnesses he may produce on facts per sonally known to them.

The determination of probable cause depends to a large extent upon the finding or opinion of the judge who It is not necessary that the judge should personally examine the complainant and his witnesses; the judge would simply personally review the initial determinati on of the prosecutor to see if it is supported by substantial evidence. Judge determines the probability, not the certainty, of the guilt of the accused 70 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos conducted the required examination of the applicant and the witnesses. and, in so doing, he need not conduct a de novo hearing.

3. The determination must be made after examination under oath or affirmation of the complainant and the witnesses he may produce. The examination conducted by the judge takes the form of searching questions. The requirement that the judge must personally examine the complainant and his w itnesses means that the actual examination cannot be delegated to someone else, like the clerk of court. So said the Court in Bache and Co. (Phil) v. Ruiz, 37 SCRA 823 (1971). In this c ase, when the BIR agent and his witnesses arrived in court in the middle of a he aring, the judge suspended the hearing and directed the branch clerk to examine and take the testimony of the witnesses in his chambers. After he was through w ith the hearing, he went back to his chambers and finding that the examination w as finished, asked the BIR agent and his witnesses if they affirmed what they wh at they testified to, after which he issued the search warrant in question. The determination of the reasonableness of the judicial warrant must be based on the affidavit of one who has personal knowledge of the facts to which he testif ies. The testimony cannot be based on mere belief. Neither can it be based on a report. Otherwise, the warrant is void. Thus, in Burgos v. Chief of Staff, (1984), reiterating the 1937 case of Rodrigue z v. Villamiel, the testimony based on a military report that the newspaper We F orum was used for subversive were held to be not a personal knowledge and so was

inadmissible. Likewise, in Corro v. Lising, 137 SCRA 541 (1985), the testimony based on invest igation reports that certain items in the Philippine Times were subversive were held to be not personal knowledge, and thus the search warrant issued was not va lid. 4. It must particularly describe the place to be searched and the persons or thi ngs to be seized. Search warrant Warrant of arrest The description of the property to be seized need not be technically accura te nor necessarily precise, and its nature will necessarily vary according to wh ether the identity of the property or its character is a matter of concern; the description is General warrants are proscribed and unconstitutional. However, a John Doe Warran t (a warrant for the apprehension of a person whose true name is unknown) satisf ies the constitutional requireme3nt of particularity if there is some descr iptio 71 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos required to be specific only insofar as the circumstances will allow. personae which will enable the officer to identify the accused. Failure to state with particularity the place to be searched and items to be sei zed makes the warrant used for fishing evidence (a general warrant) which is voi d. In Burgos v. Chief of Staff, the description which read "subversive documents, l eaflets, papers to promote the objective of the Movement for a Free Philippines, the Light a Fire Movement, and the April 6 Movement" were held not to be partic ular descriptions, thus making the warrant a general warrant. In Corro v. Lising, the search and seizure of "printed copies and dummies of Phi lippine Times, subversive documents, articles, printed matters, handbills, leafl ets, banners, and typewriters, tape recorders, etc." was again invalidated for t he description was not at all particular or specific, thus making the warrants g eneral warrants. When it comes to printed matters, the offensive material need not be set out in full. It is enough if it specifies the issues and the title of the articles. T he instruction to seize "subversive materials" is not valid because the determination of whether a material is subversive or not is not for t he police officer to decide; no unfettered discretion must be granted to h im. The matter is different if goods were searched and seized because of their intri nsic quality (as when they are stolen or smuggled), than if the goods were searc hed for the ideas they contain (as when a "subversive newspaper is sought). In the latter case, a more detailed description of the physical features of the ite m is required to avoid delegating the appreciation of ideas, and thus threaten f

ree expression.

Properties subject to Seizure: 1. Property subject of the offense; 2. Property stolen or embezzled and other proceeds or fruits of the offense; an d 3. Property used or intended to be used as the means of committing an offense. Permissible Area of Search In People vs. Hindoy, G.R. No. 132662, May 10, 2002, the warrantless search and seizure as an incident to a lawful arrest may extend beyond the person of the on e arrested to include the premises or surroundings under his immediate control.

Admissibility of Illegally Seized Evidence Articles illegally seized are not admissible as evidence. The rule has been constitutionally affirmed in Section 3(2), Article III, which provides th at such evidence 72 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos shall be inadmissible for any purpose in any proceeding. Such evidence is the frui t of the poisonous tree. However, it is submitted that it may nonetheless be use d in the judicial or administrative action that may be filed against the officer responsible for its illegal seizure. It has also been held that where the accused did not raise the issue of the admi ssibility of the evidence against him on the ground that it had been illegally s eized, such omission constitutes a waiver of the protection granted by Section 3 , and the illegally seized evidence could then be admitted against him. (People vs. Exala, 221 SCRA 494) WARRANTLESS ARREST 1. When a person to be arrested has committed, is actually committing, or is att empting to commit an offense; 2. When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arr ested has committed it; and 3. When the person to be arrested is an escapee or a detention prisoner. (Secti on 5, Rule 113, Rules of Criminal Procedure) The Rule requires that the accused perform some overt act that would indicate th at he has committed, is actually committing, or is attempting to commit an offen se. The officer arresting a person who has just committed, is committing, or is about to commit an offense must have personal knowledge of the fact. The offense must also be committed in his presence or within his view. (People vs. Tudtud & Bolong, G.R. No. 144037, September 26, 2003)

WARRANTLESS SEARCHES AND SEIZURES (a) When search is made of moving vehicles The reason is the person may escape easily if a warrant has to be applied for th e mean time. In the Tariff and Customs Code, customs agents are specifically au thorized to search and seize vehicles even without a warrant. Checkpoints are valid in some instances depending on the purpose (e.g. apprehend a suspected criminal) and the circumstances (e.g. probable cause that the crimi nal is inside the car). There is no question that when a child has been reporte d kidnapped in a community, the police can stop all cars and check if the detain ed child is in any one of them. (b) When search is an incident to a valid arrest. 73 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Rule 126, Sec. 12. Search incident to lawful arrest-- A person lawful ly arrested may be searched for dangerous weapons or anything which may be used as proof of the commission of an offense, without a search warrant. A person arrested may be searched for dangerous weapons or anything that proves the commission of the offense. It follows that the search can only be made with in the area of control of the arrested person, and within the time of the arrest . In Nolasco v. Cruz Pano, 139 SCRA 152 (1985), Milagros Roque and Cynthia Nolasco were arrested at the intersection of Mayon and Margal Streets in QC at 11:30 a. m., having been wanted as high officers of the CPP. At 12:00 noon, Roque s apartment located 2 blocks away, was searched and some documents seized . The SC at first held that the search was valid even if the warrant issued was void for failing to describe with particularity the things to be seized, becaus e it was an incident of a valid arrest. But after the EDSA revolution, the reconstituted SC granted the motion for recon sideration and held that just because there was a valid arrest did not mean that the search was likewise valid. To be valid, the search must be "incidental" to the arrest, i.e., not separated by time or place from the arrest. If the basis for allowing incidental searches is looked into, one can see that this situatio n is not one involving a valid incidental search. The law allows the arresting officer to search a person validly arrested (by fri sking him for instance) because (1) a weapon held by the arrested person may be turned against his captor and (2) he may destroy the proof of the crime, if the arrested officer has to first apply for a search warrant from a judge. If, in the Nolasco case, the search was conducted 30 minutes after the arrest, t here is no longer any danger that the captured may turn against the captor; and if the documents in the apartment were 2 blocks away, the search would no longer be justified since there is no way for Roque to go back to the apar

tment and destroy the documents, having been arrested already. In People vs. Chua Ho San, 308 SCRA 432, while a contemporaneous search of a per son arrested may be effected to discover dangerous weapons or proofs or implemen ts used in the commission of the crime and which search may extend to the area w ithin his immediate control where he might gain possession of a weapon or eviden ce he can destroy, a valid arrest must precede the search. The process cannot be reversed. In a search incidental to a lawful arrest, as the precedent arrest determines th e validity of the incidental search, the legality of the arrest is questioned in a large majority of these cases, e.g., whether an arrest was merely used as a p retext for conducting a 74 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos search. In this instance, the law requires that there be first a lawful arrest b efore a search can be madethe process cannot be reversed. In the case of People vs. Go, 354 SCRA 338 (2001), the police saw the gun tucked in appellants waist when he stood up. The gun was plainly visible. No search was conducted as none was necessary. Accused-appellant could not show any license f or the firearm, whether at the time of his arrest or thereafter. Thus, he was in effect committing a crime in the presence of the police officers. No warrant of arrest was necessary in such a situation, it being one of the recognized except ions under the Rules. As a consequence of appellants valid warrantless arrest, he may be lawfully searc hed for dangerous weapons or anything which may used as proof of the commission of an offense, without a search warrant, as provided in Rule 126, Section 12. This is a valid search incidental to a lawful arrest. The subsequent discove ry in his car of drug paraphernalia and the crystalline substance, which, was la ter identified as shabu, though in a distant place from where the illegal posses sion of firearms was committed, cannot be said to have been made during an illeg al. As such, the seized items do not fall within the exclusionary clause. Hence, not being fruits of the poisonous tree, the objects found at the scene of the c rime, such as the firearm, the shabu and the drug paraphernalia, can be used as evidenced against appellant. Besides, it has been held that drugs discovered as a result of a consented search is admissible in evidence. In People vs. Molina, 352 SCRA 174 (2001), to constitute a valid in flagrante de lito arrest, two (2) requisites must concur: 1) the person to be arrested must e xecute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and 2) such overt act is don e in the presence or within the view of the arresting officer. In People vs. Estrella, G.R. Nos. 138539-40, January 21, 2003, the arresting off icer may take from the arrested individual any money or property found upon the latters person that which: 1. Was used in the commission of the crime; 2. Was the fruit of the crime; 3. May provide the person arrested with the means of committing violence or esc aping; 4. May be used in evidence in the trial of the case.

The search, however, must be contemporaneous to the arrest and made within a permissible area of search. Requisite: the apprehending officer must have been spurred by probable cause in effecting the arrest which could be considered as one in cadence with the instan ces of permissible arrest enumerated in Section 5(a), Rule 113 of the Rules of C ourt. 75 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos In the case of People vs. Montilla, G.R. No. 123872, January 30, 1998, the offic er could reasonably assumesince the informant was by their side and had so inform ed them and pointed out the culpritthat the drugs were in the appellants luggage, and it would have been irresponsible, if not downright absurd, for them to adopt a wait-and-see attitude at the risk of eventually losing their quarry. (c) When things seized are within plain view of a searching party People vs. Hedishi Suzuki, G.R. No. 120670, October 23, 2003, whenever the right against unreasonable search and seizure is challenged, an individual may choose between invoking the constitutional protection or waiving his right by giving c onsent to the search and seizure. A reasonable search is not to be determined by any fixed formula but is to be resolved according to the facts of the case. Plain View Doctrinefinds application only when the incriminating nature of the ob ject is in the plain view of the police officer. The law enforcement officer must lawfully make an intrusion or properly be in a position from which he can particularly view the area. In the course of such law ful intrusion, he came inadvertently across a piece of evidence incriminating th e accused. The object must be open to eye and hand and its discovery inadvertent . It is clear that an object is in plain view if the object itself is plainly expo sed to sight. The difficulty arises when the object is inside a closed container . Where the object seized was inside a closed package, the object itself is not in plain view and therefore cannot be seized without a warrant. However, if the package proclaims its contents, whether by its distinctive configuration, its tr ansparency, or if its contents are obvious to an observer, then the contents are in plain view and may be seized. In other words, if the package is such that an experienced observer could infer from its appearance that it contains the prohi bited article, then the article is deemed in plain view. It must be immediately apparent to the police that the items that they observe may be evidence of a cri me, contraband or otherwise subject to seizure. (People vs. Doria, 301 SCRA 668) Requisites: 1. Valid intrusion based on a valid warrantless arrest in which the police are legally present in the pursuit of their official duties; 2. The evidence was inadvertently discovered by the police who have the right t o be where they are; 3. The evidence must be immediately apparent; and 4. Plain view justified mere seizure of evidence without further search. (d) Stop-and-Frisk

It is defined as the vernacular designation of the right of a police officer to stop a 76 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos citizen on the street, interrogate him, and pat him for weapons where a police o fficer observes an unusual conduct which leads him reasonably to conclude in lig ht of his experience that criminal activity may be afoot and that the persons wi th whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identified himself as a policeman and make rea sonable inquiries, and where nothing in the initial stages of the encounter serv es to dispel his reasonable fear for his own or others safety, he is entitled for the protection of himself or others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons w hich might be used to assault him. The interest of effective crime prevention and detection allows a police officer to approach a person, in appropriate circumstances and manner, for purposes of investigating possible criminal behavior even though there is insufficient proba ble cause to make an actual arrest. Requisites for Stop-and-Frisk 1. The police officer should properly introduce himself and make the initial in quiries, approach and restrain a person who manifests unusual and suspicious con duct, in order to check the latters outer clothing for possibly concealed weapons . 2. The apprehending officer must have a genuine reason to warrant the belief th at the person to be held has weapons or contraband concealed about him. It should, therefore, be emphasized that a search and seizure should precede the arrest for the principle of stop-and-frisk to apply. (e) When there is a valid express waiver made voluntarily and intelligently. Waiver cannot be implied from the fact that the person consented or did not obje ct to the search, for it many happen that he did so only out of respect for the authorities. The waiver must be expressly made. It must be given by the person whose right is violated. In People vs. Bongcarawan, G.R. No. 143944, July 11, 2002, the shabu in the bagg age of the accused was found by (private) security officers of the int erisland passenger vessel who then reported the matter to the Philippine Coast G uard. The search and seizure of the suitcase and contraband items were carried o ut without government intervention. Accordingly, the exclusionary rule may not b e invoked. (f) Searches of vessel and aircraft for violation of fishery, immigration and c ustoms law (g) Searches of automobiles at borders or constructive borders for v iolation of immigration and smuggling laws

77 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos (h) Inspection of buildings and other premises for the enforcement of fire, san itary and building regulations (i) Conduct of areal target zoning and saturation drive in the exercise of militar y powers of the President (j) Visual search at checkpoints Constitutionality of checkpoints and "areal target zonings"; doctrine of exigent circumstances The constitutional right against unreasonable searches and seizures is a personal right and can be invoked only by those whose rights have been infring ed, or threatened to be infringed. Not all searches and seizures are prohibited. Those which are reasonable are no t forbidden. Those which are warranted by the exigencies of public order and are conducted in a way least intrusive to motorists are allowed. For, admittedly, r outine checkpoints do intrude, to a certain extent, on motorists right to free pas sage without interruption, but it cannot be denied that, as a rule, it involves o nly a brief detention of travellers during which the vehicles occupants are requi red to answer a brief question or two. For as long as the vehicle is neither sea rched nor its occupants subjected to a body search and the inspection of the veh icle is limited to a visual search, said routine checks cannot be regarded as vi olative of an individuals right against unreasonable search. In fact, these routi ne checks, when conducted in a fixed area, are even less intrusive. The checkpoint herein conducted was in pursuance of the gun ban enforced by the COMELEC. The COMELEC would be hard put to implement the ban if its deputized age nts were limited to a visual search of pedestrians. It would also defeat the pur pose for which such ban was instituted. Those who intend to bring a gun during s aid period would know that they only need a car to be able to easily perpetrate their malicious designs. There is no need for checkpoints to be announced. Not only it would be impractic al, it would also forewarn those who intend to violate the ban. Even so, badges of legitimacy of checkpoints may still be inferred from their fixed loca tion and the regularized manner in which they are operated. (People vs. Usana, 323 SCRA 754) Knock and Announce Principle General Rule: Police officers are obliged to give notice, show their a uthority and demand that they be allowed entry. They may only break open any ou ter or inner door or window of a house to execute the search warrant if, after s uch notice and demand, such officers are refused entry to the place of directed search. Exceptions: Unannounced intrusion into the premises is permissible when: 78 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

1. A party whose premises or is entitled to the possession thereof refuses, upo n demand, to open it; 2. When such person already knew of the identity of the officers and of their a uthority and persons; 3. When the officers are justified in the honest belief that there is an immine nt peril to life or limb; 4. When those in the premises, aware of the presence of someone outside, are th en engaged in an activity which justifies the officers to believe that an escap e or the destruction of evidence is being attempted. (People vs. Huang Zhen Hua and Lee, G.R. No. 139301, September 29, 2004) In People vs. Marti, 193 SCRA 57, the constitutional protection against unreason able searches and seizures refers to the immunity of ones person from interferenc e by government and it cannot be extended to acts committed by private individua ls so as to bring it within the ambit of alleged unlawful intrusion. Do the ordinary right against unreasonable searches and seizures apply to searche s conducted at the airport pursuant to routine airport security procedures? In the case of People vs. Leila Johnson, G.R. No. 138881, December 18, 2000, persons may lose the protection of the search and seizure clause by exposu re of their persons or property to the public in a manner reflecting a lac k of subjective expectation of privacy, which expectation society is pre pared to recognize as reasonable. Suchrecognitionisimplicitinairportsecurityp rocedures. With increased concern over airplane hijacking and terrorism ha s come increased security at the nations airports. Passengers attempting to board an aircraft routinely pass through metal detectors; their carry-on baggag e as well as checked luggage, are routinely subjected to x-ray scans. Shou ld these procedures suggest the presence of suspicious objects, physical searche s are conducted to determine what the objects are. There is little question that such searches are reasonable, given their minimal intrusiveness, the gravity of the safety interests involved, and the reduced privacy expectations associated with airline travel. Indeed, travelers are often notified through airport public address systems, signs, and notices in their airline tickets that they are subj ect to search and, if any prohibited materials or substances are found, such wou ld be subject to seizure. These announcements place passengers on notice that or dinary constitutional protection against warrantless searches and seizures do no t apply to routine airport procedures. People vs. Susan Canton, G.R. No. 148825, December 27, 2002, a search made pursu ant to a routine airport security procedure is allowed under RA 6235, which prov ides that every airline ticket shall contain a condition that hand-carried lugga ge, etc., shall be subject to search, and this condition shall form p art of the contract between the passenger and the air carrier. To limit the a ction of the airport security personnel to simply refusing the passenger entry i nto the aircraft and sending her home (as suggested by the appellant), and there by depriving the security personnel of ability and facility to act accordingly, i ncluding to further search without warrant, in light of such circumstances, woul d be sanctioned impotence and ineffectiveness in law enforcement, 79 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos to the detriment of the society. The strip search in the ladies room was justified under the circumstances.

Procedure for Seizure of Pornographic Materials: To justify a warrantless search as an incident to a lawful arrest, the arrest mu st be on account of a crime having been committed; 1. There must be a criminal charge against the person for purveying the porno m aterials; 2. Application for search warrant must be obtained from the judge; 3. Materials must be brought to court in the prosecution of the accused for the crime charged; 4. Determination whether the items confiscated are pornographic materials; 5. Judgment rendered by the court. (Pita vs. CA, 178 SCRA 362)

Sec. 3, Article III (1) The privacy of communication and correspondence shall be inviolable except u pon lawful order of the court, or when public safety or order requires otherwise as prescribed by law. (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.

The guarantee includes within the mantle of its protection tangible, as well as intangible objects. (See RA 4200 below) Exceptions to inviolability: 1. Lawful order of the court; 2. When public safety or orders requires otherwise, as may be provided by law. Is there a constitutional right to privacy? Yes. The essence of privacy is the right to be left alone. It is expressly recogniz ed in Section 3(1) of Article III. Other facts of the right to privacy are prote cted in various provisions of the Bill of Rights, i.e., Sections 1 (right to due process clause), 2 (right against unreasonable searches and seizures), 6 (right to liberty of abode and of changing the same, as well as the right to travel), 8 (freedom of association) and 17 (right against self-incrimination) . (Ople vs. Torres, G.R. No. 127685, July 23, 1988) Zones of privacy recognized and protected in our laws: 1. The Civil Code provides that every person shall respect the dignity, personal ity, privacy and peace of mind of his neighbors and other persons and punishes as 80 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos actionable torts several acts by a person of meddling and prying into the privac y of another. It also holds a public officer or employee or any private individu al liable for damages for any violation of the rights and liberties of another p erson, and recognizes the privacy of letters and other private communications.

2. The Revised Penal Code makes a crime the violation of secrets by an officer, the revelation of trade and industrial secrets, and trespass to dwelling. 3. Anti-Wiretapping Law (RA 4200)invasion of privacy.

4. Secrecy of Bank Deposits (RA 1405) 5. Intellectual Property Law (RA 8293) 6. Rules of Courton privileged communication likewise recognize the privacy of certain information [Sec. 24, Rule 130(c), Revised Rules on Evidence] RA 4200 Anti-Wire Tapping Act It prohibits any person not being authorized by all parties to any private commu nication or spoken word, to tap any wire or cable, or by using any other device or arrangement to secretly overhear, intercept or record the same, or to communi cate the content thereof to any person. The use of said record may be permitted in the following instances: 1. In civil or criminal proceedings involving certain specified offenses princi pally affecting national security; and 2. When authorized by the court which may be issued under the follow ing conditions: a. The constitutional requirements for the issuance of a warrant should be comp lied with; and b. The authority shall be effective only for sixty (60) days. Any evidence obtained in violation of this law is not admissible in any proceedi ng. RA 4200 clearly and unequivocally makes it illegal for any person, not authorize d by all parties to any private communication, to secretly record such communica tions by means of a tape recorder. The law does not make any distinct ion. A telephone extension is not among the devices covered by this law. (Gaan an vs. IAC, 145 SCRA 112) Navarro vs. CA, G.R. No. 121087, August 26, 1999, two local media men in Lucena City went to the police station to report alleged indecent show in o ne night establishment in the City. At the station, there was a heated argument between police 81 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos officer Navarro and Lingan, one of the two media men, which led to fisticuffs. L ingan fell and his head hit the pavement which caused his death. During the tria l, Jalbuena, the other media man, testified. Presented in evidence to confirm hi s testimony was a voice recording he had made of the heated discussion at the po lice station between accused police officer Navarro and the deceased, Ling an, which was taken without the knowledge of the two. The SC held that Jalb uenas testimony is confirmed by the voice recording he had made. It may be asked whether the tape is admissible in view of RA 4200, which prohibits wire tapping. The answer is in the affirmative. The law pr

ohibits the overhearing, intercepting or recording of private communications. Si nce the exchange between petitioner Navarro and Lingan was not private, its tape recording is not prohibited. Exempted acts: A. Use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned below: [Secs. 1, par. 2] B. Any peace officer, who is authorized by the written order of the Court (RTC within whose territorial jurisdiction the acts for which authority is applied fo r are to be executed), to execute any of the acts declared to be unlawful in cas es involving the crimes of: [Sec. 3, par. 1] 1. treason 2. espionage 3. provoking war and disloyalty in case of war 4. piracy 5. mutiny in the high seas 6. rebellion 7. conspiracy and proposal to commit rebellion 8. inciting rebellion 9. sedition 10. conspiracy to commit sedition 11. inciting to sedition 12 kidnapping as defined by the RPC 13. violations of CA 616, punishing espionage and other offenses against nationa l security The WRITTEN ORDER shall only be issued or granted upon written application with the examination under oath or affirmation of the applicant and the witnesses he may produce and must show: a) That there are reasonable grounds to believe that any of the crimes enumerat ed herein has been committed or is being committed provided, that in cases invol ving the offenses of rebellion, conspiracy and proposal to commit rebellion, inc iting to rebellion, sedition, conspiracy to commit sedition, such authority shal l be granted only upon prior proof that a rebellion or acts of sedition, as the case may be, have actually been or are being committed; 82 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos b) That there are reasonable grounds to believe that evidence may be obtained e ssential to the conviction of any person for, or to the solution of, or to the p revention of, any of such crimes; c) That there are no other means readily available for obtaining such evidence.

Contents: 1. The identity of the person or persons whose communications, conversations, d iscussions, or spoken words are to be overheard, intercepted, or recorded and, i n the case of telegraphic or telephonic communications, the telegraph line and t he telephone number involved and its location; 2. The identity of the peace officer authorized to overhear, intercept, or reco rd the communications, conversations, discussions, or spoken words; 3. The offense or offenses sought to be committed or prevented; and 4. The period of the authorization.

Effectivity: The authorization shall be effective for the period specified in t he order which shall not exceed 60 days from the date of issuance of the order, unless extended or renewed by the court upon being satisfied that such extension or renewal is in the public interest. Procedure: All recordings made under court authorization within 48 hours after the expiration of the period fixed in the order: 1. Shall be deposited with the court in a sealed envelope or sealed package; 2. shall be accompanied by an affidavit of the peace officer granted such autho rity stating the number of recordings made, the dates and times covered by each recording, the number of tapes, discs, or records included in the deposit and ce rtifying that no duplicates or copies are included in the envelope or package de posited with the court; 3. shall not be opened, or the recordings replayed, or used in evidence or thei r contents revealed, except upon order of the court, which shall not be granted except upon motion, with due notice and opportunity to be heard to the person or persons whose conversations or communications have been recorded. PENALTY Any person who violates the provisions of this Act, shall, upon conviction, be p unished by: 1. imprisonment for not less than 6 months or more than 6 years; and 2. with the accessory penalty of perpetual absolute disqualification from publi c office if the offender be a public official at the time of the commission of t he offense; and 83 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos 3. If the offender is an alien, he shall be subject to deportation proceedings.

ADMISSIBILITY Any communication or spoken word, or the existence contents, substance, purport, effect or meaning of the same or any part thereof, or any information therein c ontained, obtained or secured by any person in violation of this Act shall not b e admissible in evidence in any judicial, quasi-judicial, or administrative hear ing or investigation. Exclusionary Rule Art. III, Sec. 3. xxx (2) Any evidence obtained in violation of this (privacy of communication and co rrespondence) or the preceding section (unreasonable searches and seizures) shal l be inadmissible for any purpose in any proceeding. One of the remedies of one who was victimized by an illegal search is to ask for the suppression of the things seized and the evidence illegally taken.

The exclusionary rule prohibits the use of any evidence obtained in violation of Sections 2 and 3 (1), Art. III for "any purpose" and in "any proceeding." The evidence is absolutely useless. This has not always been the case. In Moncado v. People s Court (1948), the SC, following the U.S. case of Wolf V. Colorado, rules that evidence illegally obtained is not necessarily excluded if is otherwise admissible under the rules of evidence. In such case, the evidence admitted, without prejudice to any criminal, civil or administrative liability of the officer who illegally seized it. In other words, the admissibility of th e evidence is not effected by the illegality of the means by which it was acquir ed. It was in Stonehill v. Diokno, supra, following the U.S. case of Maop v. Ohio 1969, when the exclusionary rule was first adopted in the Philippines, the SC no ting that the total suppression of the thing seized is the only effective means of ensuring the constitutional right which it seeks to preserve. The Court note d, the insufficiency of the other remedies (e.g. action for damages, criminal pu nishment, resistance), especially in the Philippines where violations were commi tted by those in power and were thus equipped with the pardoning power to water down the gravity of the other penalties imposed to violators of those constituti onal rights. The victim may or may not get back the thing seized, depending on whether it is contraband or not. It the thing is contraband, it would not be returned, and on ly its suppression can be asked for. But if the thing is legal, the party can a sk for its return, even if no criminal prosecution has yet been filed, as in the Stonehill case. 84 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Civil Action for Damages A civil case for damages can also be filed pursuant to Article 32 of the Civil C ode. In Aberca v. Ver, the SC held that even if the privilege of the writ is suspende d, the court can nevertheless entertain an action not only against the task forc e but even against the top ranking officials who ordered the seizure, to recover damages for the illegal searches and seizures made in a despotic manner . By so doing, one can indirectly inquire into the validity of the suspensi on of the privilege. Ramirez vs. CA, 248 SCRA 590, RA 4200 clearly and unequivocally makes it illegal for any person, not authorized by all parties to any private communication, to secretly record such communications by means of a tape recorder. The law does no t make a distinction.

Zulueta vs. CA, 253 SCRA 699, the right may be invoked against the wife who went to the clinic of her husband and there took documents consist ing of private communications between her husband and his alleged paramour. Should in camera inspection of bank accounts be allowed?

Before an in camera inspection may be allowed, there must be a pending case befo re a court of competent jurisdiction. Further, the account must be clearly identifi ed, the inspection limited to the subject matter of the pending case b efore the court of competent jurisdiction. The bank personnel and the account holder must be notified to be present during the inspection, and such inspectio n may cover only the account identified in the pending case. In Union Bank vs. CA, Section 2 of the Law on Secrecy of Bank Deposits, as amend ed, declares bank deposit to be absolutely confidential except: 1. In an examination made in the course of special or general examination of a bank that is specifically authorized by the Monetary Board after being satisfied that there is reasonable ground to believe that a bank fraud or serious irregul arity has been or is being committed and that it is necessary to look into depos it to establish such fraud or irregularity; 2. In an examination made by an independent auditor hired by the bank to conduc t its regular audit provided that the examination is for audit purposes only and the results thereof shall be for the exclusive use of the bank; 3. Upon written permission of the depositor; 4. In case of impeachment; 5. Upon order of a competent court in cases of bribery or dereliction of duty o f public officials; or 6. In cases where the money deposited or invested is the subject matter of the litigation. In the case of Marquez vs. Desierto, G.R. No. 135882, June 27, 2001, there is 85 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos yet no pending litigation before any court of competent authority. What is exist ing is an investigation by the Office of the Ombudsman. In short, what the Offic e of the Ombudsman would wish to do is to fish for additional evidence to formal ly charge Amado Lagdameo, et al., with the Sandiganbayan. Clearly, there was no pending case in court which would warrant the opening of the bank account for in spection.

Human Security Act of 2007 Section 3, HAS of 2007, provides that the authorities may, upon a written order of the Court of Appeals, listen to, intercept and record, with the use of any mo de, form, kind or type of electronic or other surveillance equipment or intercep ting and tracking devices, or with the use of any suitable ways and means for th at purpose, any communication, message, conversation, discussion, or spoken or written words between members of terrorist group. Provided, That surveill ance, interception and recording of communications between lawyers and clients, doctor and patients, journalists and their sources and confidential business cor respondence shall not be authorized.

Sec. 4, Article III No law shall be passed abridging the freedom of speech, of expression, or the pr ess, or the right of the people peaceably to assemble and petition the governmen t for redress of grievances.

The rule on privileged communications has its genesis not in the nations penal co de but in the Bill of Rights of the Constitution guaranteeing freedom of speech and of the press. As early as 1918, in US vs. Caete, 38 Phil 253, the SC ruled th at publications which are privileged for reasons of public policy are pro tected by the constitutional guaranty of freedom of speech. This constitutional right cannot be abolished by the mere failure of the legislature to give it exp ress recognition in the statute punishing libel. (Borjal vs. CA, 301 SCRA 1) The freedom to speak includes the right to be silent. This freedom includes also includes the right to an audience, in the sense that the State cannot prohibit the people from hearing what a person has to say, whatever be the quality of his thoughts. This right, however, is not demandable against those unwilling to lis ten, who may not be herded by the government into a captive audience. Types of Privileged Communications: 1. Absolutely privileged communicationsthose which are not actionable even if th e author acted in bad faith. An example is found in Article VI, Section 11 which exempts a member of Congress from liability for any speech or debate in 86 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos the Congress or in any Committee thereof. 2. Qualifiedly privileged communicationsthose contained defamatory imputa tions are not actionable unless found to have been made without good intention o r justifiable motive. To this genre belong private communications and fair and true report without any comments or remarks. Freedom of Expression Aspect: 1. Freedom from censorship or prior restraint; and 2. Freedom from subsequent punishment. Free speech and free press may be identified with the liberty to discuss publicl y and truthfully any matter of public interest without censorship and punishment . There is to be no previous restraint on the communication of views o r subsequent liability whether in libel suits, prosecution for sedition, or ac tion for damages, or contempt proceedings unless there be a clear and pre sent danger of substantive evil that Congress has a right to prevent. (Chav ez vs. Gonzalez, G.R. No. 168338, February 15, 2008) Restrictions on Free Speech: 1. Content-based Restrictionsare imposed because of the content of the s peech itself; distort public debate, have improper motivation, and are usually i mposed because of fear how people will react to a particular speech. Subject to the Clear-and-Present danger Rule Test In Sanidad vs. COMELEC, a rule prohibiting columnists, commentators, and announc

ers from campaigning either for or against an issue in a plebiscite must have co mpelling reason to support it, or it will not pass muster under strict scrutiny. These restrictions are censorial and therefore they bear a heavy presumption of constitutional validity. In addition, they will be tested for possible overbread th and vagueness. 2. Content-neutral Restrictionsare those which are not concerned with the content of the speech. The clear-and-present danger rule is inappropriate as a test for determi ning the constitutional validity of laws.

Tests for a valid Governmental Interference: 87 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos 1. Clear and Present Danger Rulewhen words are used in such circumstance and of such nature as to create a clear and present danger that will bring about substa ntive evil that state has the right to prevent. 2. Dangerous Tendency Rulewords uttered create a dangerous tendency of an evil w hich State has the right to prevent. 3. Balancing of Interest Testwhen particular conduct is regulated in interest of public order, and the regulation results in an indirect, conditional, partial a bridgment of speech, the duty of the courts is to determine which of the 2 confl icting interests demand greater protection under the particular circumsta nces presented. In the case of Adiong vs. COMELEC, 207 SCRA 713, the SC held that the posting of decals and stickers on cars, calesas, tricycles, pedicabs and other moving vehi cles needs the consent of the owner of the vehicle. Hence, the preference of the citizens becomes crucial in this kind of propaganda, not the financial resource s of the candidate. The owner can even prepare his own decals or stickers for po sting on his personal property. To strike down this right and enjoin it is imper missible encroachment of his liberties. The prohibition on posting of decals and stickers on mobile places whether public or private except in authorized areas de signated by the COMELEC becomes censorship which cannot be justified by the Cons titution.

Doctrine of Fair Comment Fair commentaries on matters of public interest are privileged and constitute a valid defense in an action for libel or slander. It means that while in general every discreditable imputation publicly made is deemed false, because ev ery man is presumed innocent until his guilt is judicially proved, and every f alse imputation is deemed malicious, nevertheless, whenthediscreditableimputatio nisdirectedagainsta publicpersoninhispubliccapacity,itisnotnecessarilyactionable . In order that such discreditable imputation to a public official may be action able, it must either be a false allegation of fact or a comment based on a false supposition. If the comment is an expression of opinion, based on established f acts, it is immaterial that the opinion happens to be mistaken, as long as it mi ght reasonably inferred from the facts. (Borjal vs. CA, 301 SCRA 1)

Right to Assemble and Petition Government The right to assemble is not subject to prior restraint and may not be condition ed upon the prior issuance of a permit or authorization from the government auth orities. However, the right must be exercised in such a way as will not prejudic e the public welfare. If assembly is to be held at a public place, permit for the use of such place, a nd 88 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos not for the assembly itself may be validly required. Power of local officials is merely for regulation and not for prohibition. (Primicias vs. Fugoso, L-1800, J anuary 27, 1948) Permit for public assembly is not necessary if meeting is to be held in: a. A private place; b. The campus of a government-owned or operated educational institution; or c. A freedom park. The provisions of BP 880 (Public Assembly Act of 1985) are not absolute ban on p ublic assemblies but a restriction that simply regulates the time, place and man ner of the assemblies. The Court referred to it as content-neutral regulation.

Test for Lawful Assembly: 1. Purpose Testthe purpose for which the assembly is held regardless of the ausp ices under which it is organized; and 2. Auspices Test. In the case of Bayan vs. Ermita, G.R. No. 169838, April 25, 2006, Calibrated Pre -emptive Response (CPR) serves no valid purpose if it means the something else. Accordingly, what is to be followed is and should be that mandated by the law it self, namely, maximum tolerance, which specifically means the highest degree of r estraint that the military, police and other peace keeping authorities shall obs erve during a public assembly or in dispersal of the same. Sec. 5, Article III No law shall be made respecting an establishment of religion or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession a nd worship, without discrimination or preference, shall forever be allowed. No r eligious test shall be required for the exercise of civil or political rights. Religionany specific system of belief, worship, conduct, etc., often involving a code of ethics and a philosophy It is a profession of faith to an active power that binds and elevates man to hi s Creator. (Aglipay vs. Ruiz, 64 Phil 201) Freedom of Religion 1. Non-Establishment Clause

Scope: a. State cannot set-up church; b. Cannot pass laws which aid one religion, all religions or prefer one over an other; c. Nor influence a person to go to or remain away from church against his will; nor 89 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos d. Force him to profess a belief or disbelief in any religion. 2. Freedom of Religious Belief and Worship Dual aspect of Freedom of Religious Belief and Worship: a. Freedom to believeabsolute as long as the belief is confined within the realm of thought; and b. Freedom to act on ones beliefsubject to regulation where the belief is transla ted into external acts that affect the public welfare. Ecclesiastical Affairit involves the relationship between the church and its memb ers and relates to matters of faith, religious doctrines, worship and governan ce of the congregation to which the state cannot meddle. Benevolent Neutralityrecognizes that government must pursue its secular goals and interest but at the same time strive to uphold religious liberty to the greates t extent possible within flexible constitutional limits. Thus, although the mora lity contemplated by laws is secular, benevolent neutrality could allow for acco mmodation of morality based on religion, provided it does not offend compelling state interests. T hree (3)-Step process of the compelling State Interest Test 1. Has the statute or government action created a burden on the free exercise o f religion? 2. Is there a sufficiently compelling state interest to justify this infringement of religious liberty? 3. Has the state in achieving its legitimate purposes used the least intrusive means possible so that the free exercise is not infringed any more than necessar y to achieve the legitimate goal of the state? (Estrada vs. Escritor, A.M. No. P -021651, June 22, 2006)

Ebralinag vs. Division Superintendent, 219 SCRA 256, to compel students to take part in a flag ceremony when it is against their religious beliefs will violate their religious freedom. Petitioners have the right to refuse to salute to the P hilippine flag on account of their religious freedom. Iglesia ni Cristo vs. CA, 259 SCRA 529, the INCs postulate that its religious fre edom is per se beyond review of the MTRCB should be rejected. Its public broadca st on TV of its religious programs brings it out of the bosom of internal bel ief. Television is a medium that reaches even the eyes and ears of children. The exercise of religious freedom can be regulated by the State when it will bring about the clear and present danger of a substantive evil which the State is duty -bound to prevent, i.e., serious detriment to the more overriding interest of public health, public morals, or public welfare. A laissez faire polic

y on the exercise of religion can be seductive to the liberal mind but history counsels the Court against its blind adoption as religion is and 90 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos continues to be a volatile area of concern in our society today. For sure, we sha ll continue to subject any act pinching the space for the free exercise of relig ion to a heightened scrutiny but we shall not leave its rational exercise to the irrationality of a man. For when religion divides and its exercise destroys, th e State should not stand still. Taruc vs. Bishop Dela Cruz, G.R. No. 144801, March 10, 2005, expulsion/excommuni cation of members of a religious institution/organization is a matter best left to the discretion of the officials, and the laws and canons, of said institution /organization. It is not for the courts to exercise control over church authorit ies in the performance of their discretionary and official functions. Rather, it is for the members of the religious institution/organization to conform to just church regulations. Religious Tests The constitutional prohibition against religious tests is aimed against clandest ine attempts on the part of the government to prevent a person from exercising h is civil or political rights because of his religious beliefs.

Sec. 6, Article III The liberty of abode and of changing the same within the limits prescribed by la w shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law.

Liberty of Abode and Travel The purpose of the guaranty is to further emphasize the individuals liberty as sa feguarded in general terms by the due process clause. Liberty under that clause includes the right to choose ones residence, to leave it whenever he pleases, and to travel where he wills. Limitation on Liberty of Abode: upon Lawful order of the court

Restrictions on Right to Travel: 1. Interest of national security; 2. Public safety; 3. Public health; or 4. Any person on bail. In Caunca vs. Salazar, 82 Phil 851, a maid has the right to transfer to another residence even if she had not yet paid the amount advanced for her transportatio n from the province by an employment agency which was then effectively detaining her.

91 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Villavicencio vs. Lukban, 39 Phil 778, the Mayor of Manila was not sustained by the SC when he deported some 170 women of ill-repute to Davao, for the admittedl y commendable purpose of ridding the city for serious moral and health problems. These women are nevertheless not chattels but Philippine citizens protected by the same constitutional guarantees as are other citizensto change their domicile from Manila to another locality.

Rubi vs. Board of Mindoro, 39 Phil 660, the respondents were justified in requir ing the members of certain non-Christian tribes to reside in a reservation, for their better education, advancement and protection. The measure was held to be a legitimate exercise of police power. Lorenzo vs. Director of Health, 50 Phil 595, health officers may restrict access to contaminated areas and also quarantine those already exposed to the disease sought to be contained.

Zemel vs. Rusk, 381 US 1, the Secretary of State may regulate or even prohibit t he travel of citizens to hostile countries to prevent possible international mis understanding and conflict.

Section 26 of HAS of 2007cases where evidence of guilt is not strong, and the per son charged with the crime of terrorism as therein defined is entitled to bail a nd if granted the same, the court, upon application by the prosecutor, shall lim it the right to travel of the accused to within the municipality or city where h e resides or where the case is pending, in the interest of national security and public safety.

Sec. 7, Article III The right of the people to information on matters of public concerned shall be r ecognized. Access to official records, and to documents, and papers pertaining t o official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizens, subje ct to such limitations as may be provided by law.

Right of the People to Information on Matters of Public Concern The citizen has a right to know what is going on in the country and in his

92 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos government so he can express his views thereon knowledgeably and intelligently. One cannot question the extravagance of the government, for example, if is denie d examination of official vouchers. A citizen may not expose anomaly if those re sponsible for it may validly prevent him from investigating their activities. In the interest of truth and fairness, the citizen should not be made to guess onl y at what is being done by public functionaries and to base his views and conclu sions on mere rumors, half-truths, conjectures and even canards.

Recognized restrictions: 1. National security matters and intelligence informationthis jurisdiction recogn izes the common law holding that there is a governmental privilege aga inst public disclosure with respect to state secrets regarding military, diploma tic and other national security matters; 2. Trade or industrial secrets(pursuant to the Intellectual Property Code, RA 8293 and other related laws and banking transactionspursuant to the Secrecy of Ba nk Deposits Act, RA 1405); 3. Criminal matters, such as those relating to the apprehension, the prosecutio n and the detention of criminals, which courts may not inquire into prior to suc h arrest, detention and prosecution; and 4. Other confidential information. The Ethical Standards Act further pr ohibits public officials and employees from using or divulging confidential or cl assified information to the public. [Section 7 (c), RA 6713] Other ackn owledged limitations to information access include diplomatic correspondence, cl osed door Cabinet meetings and executive sessions of either House of congress, a s well as the internal deliberations of the SC. (Chavez vs. PCGG, 299 SCRA 744) Rights guaranteed: 1. Right to information on matters of public concern; and 2. Corollary right of access to official records and documents BA-RA 7941 vs. COMELEC, G.R. Nos. 177271 and 177314, May 4, 2007, the right to i nformation is a public right where the real parties in interest are the public, or the citizens to be precise. The peoples right to know is limited to matters of public concern and is further subject to such limitation as may be provided by law. Similarly, the policy of full disclosure is confined to transactions involv ing public interest and is subject to reasonable conditions prescribed by law. Valmonte vs. Belmonte, Jr., 170 SCRa 256the information sought must be matters of public concern, access to which may be limited by law. The information sought by petitioners is the truth of reports that certain Members of the Batas an Pambansa 93 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

belonging to the opposition were able to secure clean loans from the GSIS immediat ely before the February 7, 1986 election through the intercession of the former First Lady Imelda Marcos. x x x The public nature of the loanable funds of the G SIS and the public office held by the alleged borrowers make the information sou ght clearly a matter of public interest and concern. Legaspi vs. Civil Service Commission, the SC affirmed the right of the petitione r to secure from the Civil Service Commission information regarding the civil service eligibility of certain persons employed in the health department of the Cebu City government. Sec. 8, Article III The right of the people, including those employed in the public and private sect ors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged. Right to Form associationsshall not be impaired without due process of law; guara ntees the right not to join an association. (Sta. Clara Homeowners Association v s. Gaston, G.R. No. 141961, January 23, 2002) This right is especially meaningful in a free society because a man is by nature gregarious. His disposition to mix with others of the same persuasions, interes ts or objectives is guaranteed by this provision. It also expressly guarantees t o those employed in the public and private sectors the right to form unions. This right is available also to those in the government sectors. It is a settled in jurisprudence that, in general, workers in the public sectors do not enjoy the right to strike. The general rule in the past and up to presen t is that the terms and conditions of employment in the Government, including any political sub division or instrumentality thereof are governed by law. x x x. Since the terms a nd conditions of government employment are fixed by law, government workers cann ot use the same weapons employed by the workers in the private sector to secure concessions from their employers. The principle behind labor unionism in private industry is that industrial peace cannot be secured through compulsion by law. Relations between private employers and their employees rest on an essentially v oluntary basis. x x x In government employment, however, it is the legislature a nd, where properly given delegated power, the administrative heads of govern ment which fix the terms and conditions of employment. And this is effected through statutes or administrative circulars, rules and regulations, not through collective bargaining agreements. (Alliance of Concerned Government Workers vs. Ministry of Labor and Employment, 124 SCRA 1) In the case of Jacinto vs. CA, 281 SCRA 657, the SC held that petitioners were 94 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos not penalized for the exercise of their right to assemble peacefully and to peti tion the government for a redress of grievances. Rather, the Civil Service Commi ssion found them guilty of conduct prejudicial to the best interest of the servi ce for having absented themselves without proper authority, from their school du

ring regular school days, in order to participate in the mass protest, their abs ence ineluctably resulting in the non- holding of classes and in the deprivation of students of education, for which they were responsible. Had petitioners a vailed themselves of their free timerecess, after classes, weekends or holi daysto dramatize their grievances and to dialogue with the proper authorities wit hin the bounds of law, no onenot the DECS, the CSC or even the SCcould have held t hem liable for the valid exercise of their constitutionally guaranteed rights. As it was, the temporary stoppage of classes resulting from their activity nece ssarily disrupted public services, the very evil sought to be forestalled by the prohibition against strikes by government workers. Their act by their nature wa s enjoined by the Civil Service Law, rules and regulations, for which they must, therefore, be made answerable.

GSIS vs. Kapisanan ng mga Manggagawa sa GSIS, G. R. No. 170132, December 6, 2006, it was against the backdrop of the provisions of the Constitution that the Court resolved that employees in the public service may not engage in strikes o r in concerted and unauthorized stoppage of work; that the right of government e mployees to organize is limited to the formation of unions or associations, with out including the right to strike. It may be, as the appellate court urged, that the freedom of expression and assembly and the right to petition the government for a redress of grievances stand on a level higher than economic and other lib erties. Sec. 9, Article III Private property shall not be taken for public use without just compensation. (See discussions Under Eminent Domain) Sec. 10, Article III No law impairing the obligation of contract shall be passed.

The freedom to contract is not absolute; all contracts and all rights are subjec t to the police power of the State and not only may regulations which affec t them be established by the State, but all such regulations must be subject to change from time to time, as the general well-being of the community may requir e, or the circumstances may change, or as experience may demonstrate the necessi ty. The purpose of the impairment clause is to safeguard the integrity of valid cont ractual agreements against unwarranted interference by the State. As a rule, the y should be respected by the legislature and not tampered with by subsequent law s that will change the intention of the parties or modify their rights and oblig ations. The will of 95 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos the obligor and the obligee must be observed; the obligation of their contract m ust not be impaired. However, the protection of the impairment clause is not absolute. There are inst ances when contracts valid at the time of their conclusion may become invalid, o r some of their provisions may be rendered inoperative or illegal, by virtue of

supervening legislation. Limitations: 1. Police powerprevails over contracts; 2. Eminent domainmay impair obligation of contracts; and 3. Taxationcannot impair obligation of contracts. Impairmentanything that diminishes the efficacy of a contract There is impairment when there is change in the terms of a legal contract betwee n parties, either in the time or mode of performance, or imposes new conditions, or dispenses with those expressed, or authorizes for its satisfaction something different from that provided in its terms. (Clemons vs. Nolting, No. 17959, Jan uary 24, 1922)

Hon. Heherson Alvarez vs. PICOP Resources, Inc., G.R. No. 162243, November 29, 2006, in unequivocal terms, the SC have consistently held that such licenses concerning the harvesting of timber in the countrys forests cannot be considered contracts that would bind the Government regardless of changes in policy and th e demands of public interest and welfare. Since timber licenses are not contract s, the non-impairment clause cannot be invoked.

Sec. 11, Article III Free access to the courts and quasi-judicial bodies and adequate legal assistanc e shall not be denied to any person by reason of poverty. Inspired by t social justice policy and covered by the equal protection clause, this rule has been implemented by several provisions of the Rules of Court in fa vor of the pauper litigant. The IBP provides deserving indigents with free legal aid, including representation in court, and similar services available from the DOJ to litigants who cannot afford retained counsel, like the accused in a criminal case who can ask for the assistance of counsel de officio. There a re also private legal assistance organizations now functioning for the benefit o f penurious clients who otherwise might be unable to resort to the courts of jus tice because only of their misfortune of being poor. This provision makes them t he equal of the rich before the law. Sec. 12, Article III (1) Any person under investigation for the commission of an offense shall have t he right to be informed of his right to remain silent and to have a 96 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos competent and independent counsel preferably of his own choice. If the person ca nnot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. (2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solita ry, incommunicado, or other similar forms of detention are prohibited. (3) Any confession or admission obtained in violation of this or Section 17 here of shall be inadmissible in evidence against him.

(4) The law shall provide for penal and civil sanctions for violations of this s ection as well as compensation to and rehabilitation of victims of torture or similar practices, and their families.

Rights of an Accused under Custodial Investigation Exist only in custodial interrogation Available when the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogation that tend to elicit incriminating statements. Custodial Investigation Any questioning initiated by law enforcement officers after a person has been ta ken into custody or otherwise deprived of his freedom of action in any significa nt way. It shall include the practice of issuing invitation to a person who is investigate d in connection with an offense he is suspected to have committed, without preju dice to the liability of the inviting officer for any violation of the law. (RA 74 38) People vs. Lugod, G.R. No. 136253, February 21, 2001, the accused should have be en entitled to Miranda rights, because even assuming that he was not yet under i nterrogation at the time he was brought to the police station, his confession wa s elicited by a police officer who promised to help him if he told the truth. Fu rthermore, when he allegedly pointed out the body of the victim, the atmosphere was highly intimidating and not conducive to a spontaneous response as the whole police force and nearly 100 townspeople escorted him there. Not having the bene fit of counsel and not having been informed of his rights, the confession is ina dmissible. Miranda rights (Miranda vs. Arizona, 384 US 436) x x x The prosecution may not use statements, whether exculpatory or inculpatory , stemming from custodial interrogation of the defendant unless it demo nstrates the use of 97 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos procedural safeguards effective to secure the privilege against self-incriminati ons. By custodial interrogation, it means questioning initiated by law enforceme nt officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards t o be employed, unless other fully effective means are devised to informed accuse d-persons of their right of silence and to assure a continuous opportunity to ex ercise it, the following measures are required. Prior to any questioning, the pe rson must be warned that he has the right to remain silent, that any statement h e does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive e ffectuations of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of

the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any ma nner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some state ments on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consen ts to be questioned. Applies only from the moment the investigating officer begins to ask questions fo r the purpose of eliciting admissions, confessions or any information from the a ccused.

People vs. Baloloy, G.R. No. 140740, April 12, 2002, it was held that this guara ntee does not apply to spontaneous statement, not elicited through questioning b y the authorities but given in an ordinary manner whereby the suspect orally adm itted having committed the offense. Neither can it apply to admissions or confes sions made by a suspect before he was placed under custodial investigation. In t his case, the narration before the Barangay Captain prior to custodial in vestigation was admissible in evidence, but not the admissions made before Ju dge Dicon, inasmuch as the questioning by the judge was done after the suspect h ad been arrested and such questioning already constituted custodial investigatio n. Rights guaranteed: 1. Right to remain silent; 2. Right to have a competent and independent counsel preferably of his own choi ce at all stages of the investigation; Independent and competent counselwilling to safeguard the constitutional rights o f the accused 3. Right to be informed of such rights; Rationale: a. to make him aware of it; b. to overcome the inherent pressure o the interrogating atmosphere; and c. to show the individual that his interrogators are prepared to rec ognize his privilege should he choose to invoke it. 4. Right to be provided with counsel, if the person cannot afford one; These rights cannot be waives except in writing and in the presence of counsel; i t is not required in a police-line up as the latter is not part of a custodial inquest. 98 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos 5. 6. 7. e No torture, force, etc. which vitiate free will shall be used; Secret detention places are prohibited; and Confession/admissions obtained in violation of rights are inadmissibl in evidence.

Ways of identifying the suspects During Custodial Investigation: 1. Show-ups (out-of-court identification)where the suspect alone is brought face to face with the witness for identification; People vs. Escordial, G.R. Nos. 138934-35, January 16, 2002, the accused, having become the focus of attention by the police after he had been pointed to by a c ertain Ramie as the possible perpetrator of the crime, it was held that when the

out-of-court identification was conducted by the police, the accused was alread y under custodial investigation. 2. Mug shotswhere photographs are shown to the witness to identify the suspect; and 3. Police Line upswhere a witness identifies the suspect from a group of persons lined up for the purpose. It is not considered a part of any custodi al inquest because it is conducted before that stage of investigation is reached (People vs. Bravo, G.R. No. 135562, November 22, 1999). The process has not yet shifted from the investigatory to the accusatory stage, and it is usually the w itness or the complainant who is interrogated and who gives a statement in the c ourse of the line-up (People vs. Amestuzo, July 12, 2001). Factors in Resolving the Admissibility of and Relying on Out-of-Court Identifica tion of Suspects: TOTALITY OF CIRCUMSTANCES TEST 1. The witness opportunity to view the criminal at the time of the crime; 2. The witness degree of attention at that time; 3. The accuracy of any prior description given by the witness; 4. The level of certainty demonstrated by the witness at the identification; 5. The length of time between the crime and the identification; and 6. The suggestiveness of the identification procedure. Two (2) kinds of Involuntary or Coerced Confessions: 1. Those which are the product of 3rd degree methods such as tortur e, force, violence, threat, intimidation, which are dealt with in paragraph 2 o f Section 12; and 2. Those which are given without the benefit of Miranda warnings. Extrajudicial Confessionsare presumed voluntary, and, in the absenc e of conclusive evidence showing the declarants consent in executing the same h as been vitiated, such confession will be sustained. To be admissible, it must be: 1. Voluntary; 2. Made with the assistance of competent and independent counsel; 99 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos 3. Express; and 4. In writing. Investigations not considered custodial interrogation 1. Those conducted by an audit examiner 2. Those conducted by the Court Administrator 3. Those conducted by the employer For the reason that these people are not law enforcement officers However, in the case of People vs. Salonga, G.R. No. 131131, June 21, 2001, afte r an audit, the accused was summoned to appear before the Assistant Accountant o f MetroBank and, in the course of the interview, accused admitted having issued the subject cashiers checks without any legitimate transaction, the written confe ssion was held admissible in evidence inasmuch as the interview did not constitu te custodial investigation.

Ladiana vs. People, G.R. No. 144293, December 24, 2002, the counter-affidavit su bmitted by the respondent during preliminary investigation is admissible because preliminary investigation is not part of custodial investigation. The interroga tion by the police, if any would already have been ended at the time of the fili ng of the criminal case in court or in the public prosecutors office. Spontaneous statementsthose elicited through questioning by law enforcement offic ers, but given in an ordinary manner where the appellant verbally admits to havi ng committed the offense, are admissible. (People vs. Guillermo, G.R. No. 147786 , January 20, 2004) WAIVER It must be in writing and made in the presence of the counsel. The burden of pro ving that there was a valid waiver rests on the prosecution. The presumption of official duty has been regularly performed cannot prevail over the presumption o f innocence. What may be waived? 1. Right to remain silent 2. Right to counsel Exclusionary Rule Confession or admission obtained in violation of Sections 12 and 17 of Article I II shall be inadmissible in evidence. Fruit of the poisonous treeonce the primary source is shown to have been lawfully obtained, any secondary or derivative evidence derived from it is inadmissible. Evidence illegally obtained by the State should not be used to gain other

100 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos evidence because the originally obtained evidence taints all evidence subsequent ly obtained.

Sec. 13, Article III All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by suff icient sureties, or be released or recognizance as may be provided by law. The r ight to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required.

Right to Bail Bailthe security given for the release of a person in custody of the law, furnish ed by him or a bondsman, conditioned upon his appearance before any court as may be required.

The right to bail may be invoked by any person once detention commences even i f no formal charges have yet to be filed; It can availed of by a person who is in custody of law or otherwise deprived of his liberty; Suspension of the writ of the privilege of habeas corpus does not suspend the right to bail; Even when the accused has previously jumped bail, still he cannot be denied bai l before conviction if it is a matter of right. The remedy is to increase the am ount of bail; Right to bail has not been recognized and is not available to the military. Standards for fixing amount of bail: 1. Financial ability of the accused; 2. Nature and circumstances of the offense; 3. Penalty for the offense charged; 4. Character and reputation of the accused; 5. Age and health of the accused; 6. Weight of evidence against the accused; 7. Probability of appearance at trial; 8. Forfeiture of other bonds by him; 9. He was a fugitive from justice when arrested; and 10. Pendency of other cases where he is also under bail. Bail as a matter of right All persons in custody shall be admitted to bail as a matter of right, with suff icient sureties, or be released on recognizance as prescribed by law: 101 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos 1. Before or after conviction by the MTC; and 2. Before conviction by the RTC of an offense not punishable by death, reclusi on perpetua or life imprisonment. 3. The evidence of guilt is not strong. Bail when discretionary 1. Upon conviction by the RTC of an offense not punishable by death, reclusion perpetua or life imprisonment, the court, on application, may admit the accused to bail. 2. The court, in its discretion, may allow the accused to continue on provision al liberty after the same bail bond during the period to appeal subject to the c onsent of the bondsman. 3. If the court imposed a penalty of imprisonment exceeding 6 years but not mor e than 20 years, the accused shall be denied bail, or his bail previously grante d shall be cancelled, upon showing by the following or other similar circumstanc es: a. That the accused is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the circumstance of reiteracion; b. That the accused is found to have previously escaped from legal confinement, evaded sentence, or has violated the conditions of his bail without valid justif ication; c. That the accused committed the offense while on probation, parole, or under conditional pardon; d. That the circumstances of the accused or his case indicates the probability

of flight if released on bail; or e. That there is undue risk that during the pendency of the appeal, the acc used may commit another crime.

Whether bail is a matter of right or discretionreasonable notice of hearing is re quired to be given to the prosecutor, or at least he must be asked for his recom mendation, because in fixing the amount of bail, the judge is required to take i nto account a number of factors. When bail shall be denied No person, regardless of the stage of the criminal prosecution, shall be admitt ed to bail if: a. Charged with capital offense, or an offense punishable by reclusion perpetua or life imprisonment; and b. Evidence of guilt is strong. When the accused is charged with an offense punishable by reclusion perpetua or higher, a hearing on the motion for bail must be conducted by the judge to dete rmine whether or not the evidence of guilt is strong.

102 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Without a hearing, the judge could not possibly asses the weight of the evidenc e against the accused before granting the latters application for bail. (See the cases of Government of USA vs. Hon. Purganan and Government of Hongkong vs. Judge Olalia)

Sec. 14, Article III (1) No person shall be held to answer for a criminal offense without due process of law. (2) In all criminal prosecutions, the accused shall be presumed innocent until t he contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, t o have a speedy, impartial, and public trial, to meet the witnesses face to face , and to have compulsory process to secure the attendance of witnesses and the p roduction of evidence in his behalf. However, after arraignment, trial may proce ed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable.

Rights of the Accused: 1. Criminal due process: a. Opportunity to be heard in court of competent jurisdiction; b. The accused must proceed against under orderly processes of law;

c. He must be given notice and opportunity to be heard; and d. The judgment rendered was within the authority of a constitutional law. 2. Presumption of innocence Every circumstance favoring the innocence of the accused must be taken into acco unt. The proof against him must not be permitted to sway judgment and the presum ption that official duty was regularly performed cannot, by itself, prevail over the constitutional presumption of innocence. 3. Right to be heard by himself and counsel 4. Right to be informed of the nature and cause of the accusation against him Objectives: a. To furnish the accused with such a description of the charge against him as will enable him to make the defense; b. To avail himself of his conviction or acquittal for protection agains t a further prosecution for the same cause; and c. To inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had. 103 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Description, not designation, of the offense is controlling. Void-for-Vagueness Rulethe accused is denied the right to be informed of the char ge against him, and to due process as well, where the statute itself is couched in such indefinite language that it is not possible for men of ordina ry intelligence to determine therefrom what acts or omissions are punished and, hence, shall be avoided. Estrada vs. Sandiganbayan, G.R. No. 148560, November 19, 2001, every legislative measure is presumed constitutional. Petitioner failed to discharge the burden t o overcome the presumption of constitutionality. 5. Right to speedy, impartial and public trial Impartialthe judge must not be bias and not motivated by malice or bad faith 6. Right to meet witness face to face Witnesses not submitted for cross-examination are not admissible as evidence. Ho wever, right to cross-examination may be waived. 7. Right to compulsory process to secure attendance of witnesses and production of evidence 8. Trial in Absentia After arraignment; Due notice; and Absence is unjustified.

Plea of guilt to a capital offense

1. There must be searching inquiry into the voluntariness of the plea and the f ull comprehension of the consequences thereof; 2. Presentation of evidence to prove the guilt of the accused and the precise d egree of his culpability; 3. The accused must be asked if he desire to present evidence on his behalf and allow him to do so if he so desires.

Sec. 15, Article III The privilege of the writ of habeas corpus shall not be suspended except in case s of invasion or rebellion when the public safety requires. (Relate this to Section 18, Article VII)

104 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Writ of habeas corpus A writ issued by the court directed to a person detaining another, commanding hi m to produce the body of the prisoner at designated time and place, with the day and cause of his capture and detention, to do, to submit to, and to receive wha tever court or judge awarding writ shall consider in his behalf. It lies only where the restraint of a persons liberty has been judicially adjudge d to be illegal or unlawful. A petition for habeas corpus will be given due course only if it shows that petitioner is being detained or restrained of his liberty unlawfully. A r estrictive custody and monitoring of movements or whereabouts of police officers under investigation by their superiors is not a form of illegal detention or re straint of liberty. (SP02 Manalo vs. PNP Chief Calderon, G.R. No. 178920, Octobe r 15, 2007)

Sec. 16, Article III All persons shall have the right to a speedy disposition of their cases before a ll judicial, quasi-judicial, or administrative bodies.

Enriquez vs. Office of the Ombudsman, G.R. No. 174902-06, February 15, 2008, thi s right, like the right to a speedy trial, is deemed violated when the proceedin gs are attended by vexatious, capricious, and oppressive delays. The concept of speedy disposition of cases is relative or flexible. A simple mat hematical computation of the time involved is insufficient. The facts and circum stances peculiar to each case must be examined. In ascertaining whether the righ t to a speedy disposition of cases has been violated, the following factors must be considered: 1. The length of delay; 2. The reasons for the delay;

3. The assertion or failure to assert such right by the accused; and 4. The prejudice caused by the delay. (Tilendo vs. Ombudsman and Sandiganbayan, G.R. No. 165975, September 13, 2007)

Sec. 17, Article III No person shall be compelled to be a witness against himself. Right against self-incrimination Availability: Not only in criminal prosecutions but also in all other government proceedings, 105 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos including civil actions and administrative or legislative investigations May be claimed not only by accused but by any witness to whom an incriminating question is addressed. Scope: It applies only against testimonial compulsion and production of documen ts, papers and chattels in court except when books of account are to be examined in exercise of power of taxation and police power. Two (2) types of Immunity Statutes: 1. Transactional Immunity Statutetestimony of any person or whose possession of documents or other evidence necessary or convenient to determine the truth in an y investigation conducted is immune from criminal prosecution for an offense to which such compelled testimony relates; and 2. Use Immunity Statuteprohibits the use of a witness compelled testimony and its fruits in any manner in connection with the criminal prosecution of the witness .

Sec. 18, Article III (1) No person shall be detained solely by reason of his political beliefs and as pirations. (2) No involuntary servitude in any form shall exist except as a punishment for a crime whereof the party shall have been duly convicted. Right against Involuntary Servitude It is a condition where one is compelled by force, coercion, or imprisonment, an d against his will, to labor for another, whether he is paid or not. General Rule: No involuntary servitude shall exist.

Exceptions: 1. As punishment for a crime whereof one has been duly convicted; 2. Service in defense of the State; 3. Naval enlistment;

4. Posse commitatus; 5. Return to work order in industries affected with public interest; and 6. Patria potestas.

Sec. 19, Article III (1) Excessive fines shall not be imposed, nor cruel, degrading or inhuman punish ment inflicted. Neither shall death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter 106 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos provides for it. Any death penalty already imposed shall be reduced to reclusion perpetua. (2) The employment of physical, psychological, or degrading punishment against a ny prisoner or detainee or the use of substandard or inadequate penal facilities under subhuman conditions shall be dealt with by law. Prohibited Punishments Mere severity does not constitute cruel or unusual punishment. To violate consti tutional guarantee, penalty must be flagrant and plainly oppressive, disproporti onate to nature of offense as to shock senses of community.

Sec. 20, Article III No person shall be imprisoned for debt or non-payment of a poll tax. Coverage: 1. Debtany civil obligation arising from contract 2. Poll taxa specific sum levied upon any person belonging to a certain class wi thout regard to property or occupation. A tax is not a debt since it is an obligation arising from law hence, its non-pay ment may be validly punished with imprisonment. Sec. 21, Article III No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under eith er shall constitute a bar to another prosecution for the same act. Right against Double Jeopardy Requisites: 1. A valid complaint or information; 2. Filed before competent court; 3. To which defendant has pleaded; and 4. Defendant was previously acquitted or convicted or the case dismiss ed or otherwise terminated without his express consent. Two (2) types: 1. No person shall be twice put in jeopardy of punishment for the same offense; 2. If an act is punished by a law and an ordinance, conviction or acquittal und er either shall constitute a bar to another prosecution for the same act. To substantiate a claim of double jeopardy, the following must be proven:

1. A first jeopardy must have attached prior to the second; 2. The second jeopardy must be for the same offense, or the second offense incl udes or is necessarily included in the offense charged in the first

107 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos information, or is an attempt to commit the same or is a frustration thereof. Legal Jeopardy Attaches Only: 1. Upon a valid indictment; 2. Before a competent court; 3. After arraignment; 4. When a valid plea has been entered and 5. The case was dismissed or otherwise terminated without the express consent o f the accused. General Rule: Dismissal of action, when made at the instance of the accused, doe s not put the accused in first jeopardy. Exceptions: 1. When ground for dismissal is insufficiency of evidence; or 2. When the proceedings have been unreasonably prolonged as to violate the righ t of the accused of a speedy trial. Crimes covered: 1. Same offense; or attempt to commit or frustration thereof or for any offense which necessarily includes or is necessarily included in the offense charged in original complaint or information; and 2. When an act is punishable by a law and an ordinance, conviction or acquittal under either shall bar another prosecution for the same act. Doctrine of Supervening Eventprosecution for another offense if subsequent develo pment changes the character of the first indictment under which he may have alre ady been charged or convicted. Conviction of accused shall not bar another prosecution for an offense which nec essarily includes the offense originally charged when: 1. Graver offense developed due to supervening facts arising from the same act or omission; 2. Facts constituting graver offense arose or discovered only after fi ling of former complaint or information; and 3. Plea of guilty to lesser offense was made without the consent of prosecutor or offended party. Cabo vs. Sandiganbayan, G.R. No. 169509, June 16, 2006, for double jeopardy to a ttach, the case against the accused must have been dismissed or other wise terminated without his express consent by a court of competent jurisdiction , upon a valid information sufficient in form and substance and the accus ed pleaded to the said charge.

108 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos People vs. Perlita J. Tria-Tirona, et al., G.R. No. 130106, July 15, 2006, after trial on the merits, an acquittal is immediately final and cannot be appealed o n the ground of double jeopardy. The only exception where double jeopardy cannot be invoked is where there is finding of mistrial resulting in a denial of due p rocess.

Sec. 22, Article III No ex-post facto law or bill of attainder shall be enacted.

Right against Ex-Post Facto Law and Bill of Attainder Ex-Post Facto Law The equivalent of the impairment clause in criminal matters is the prohibition a gainst the passage of the ex post facto law. This is because the ex post facto l aw, like the law impairing the obligation of the contracts, operates retroactive ly to affect antecedent acts. A law can never be considered ex post facto as lon g as it operates prospectively since its structures would cover only offenses co mmitted after and not before its enactment. Basically, an ex post facto law is o ne that would make a previous act criminal although it was not so at the time it was committed. Kinds: 1. Law criminalizing act done before its passage; Example: A law passed in 1990 raising the age of seduction from 18 to 25 years, effective 1980 2. Law aggravating penalty for crime committed before passage; Example: A law passed in 2000 designating the crime of homicide through reckless imprudence as murder, effective 1990 3. Law that changes punishment, and inflicts greater or more severe punishment than the law annexed to the crime when committed; Example: A law passed in 2000 increasing the penalty for libel from prision correccional to prision mayor, effective 1990 4. Law altering legal rules of evidence and receives less or different testimon y than law required at the time of commission, in order to convict accused; Example: A law passed in 2000 requiring for conviction merely preponderance of evidence instead of proof beyond reasonable doubt, effective 1990 5. Law assuming to regulate civil rights and remedies only, in effect imposes a penalty of deprivation of right for something which when done was lawful; and Example: A law passed in 2000 depriving professionals of the right to practice for failure or refusal to vote, effective 1990. 6. Law depriving accused of some lawful protection to which he had been entitle d, such a protection of a former conviction or acquittal, or of a proclamation o f amnesty.

109 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos Example: A law passed in 2000 lengthening the period for prescription of blackmail from 5 to 10 years, effective 1990. Characteristics: 1. It refers to criminal matters; 2. It is retroactive in application; and 3. It works to the prejudice of the accused. In the case of US vs. Gomez Colonel, 12 Phil 279, an information for adultery fi led by the prosecutor was dismissed by the SC on the ground that at the time of the alleged commission of the offense, prosecution could be commenced only on co mplaint of the offended spouse. It was held that the amendatory law permitting t he prosecutor to initiate the charge was ex post facto. Bill of Attainder It is a legislative act that inflicts punishment without trial It is a legislative declaration of guilt Essential: 1. Specification of certain individuals or a group of individuals; 2. The imposition of a punishment, penal or otherwise; and 3. Lack of judicial trial. It substitute legislative fiat for a judicial determination of guilt. Thus, it i s only when a statute applies either to named individuals or to easily ascertain able members of a group in such a way as to inflict punishment on them without j

udicial trial that it becomes a bill of attainder.

Article IV CITIZENSHIP

Citizenship- is membership in a political community which is personal and more o r less permanent in character. Nationality- is membership in any class or form of political community. Thus, na tionals may be citizens [if member of a democratic community] or subj ects [if members of a monarchial community]. It does not necessarily incl ude the right or privilege of exercising political and civil rights. Usual modes of acquiring citizenship: a. By Birth i. Jus sanguinis-by blood 110 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos ii. Jus soli-by birth b. By Naturalization c. By Marriage The Philippine law on citizenship adheres to the principle reunder, a child follows the nationality or citizenship of s of the place of his birth, as opposed to the doctrine of mines the nationality or citizenship on the basis of place COMELEC, 337 SCRA 543) of JUS SANGUINIS. The the parents regardles JUS SOLI which deter of birth. (Valles vs.

Modes (by birth) applied in the Philippines A. Before the adoption of the 1935 Constitution i. Jus Sanguinis. All inhabitants of the islands who were Spanish subjec ts on April 11, 1899, and residing in the islands who did not declare their intention of preserving Spanish nationality between said date and Octobe r 11, 1900, were declared citizens of the Philippines [Sec. 4, Philippine Bill of 1902; Sec. 2, Jones Law of 1916], and their children born after April 11, 1899. (en masse Filipinization) ii. Jus Soli. Those declared as Filipino citizens by the courts are recog nized as such today, not because of the application of the jus soli principle, b ut principally because of the doctrine of res judicata. B. After the adoption of the 1935 Constitution: Only the Jus Sanguinis doctrin e. Section 1, Article IV The following are citizens of the Philippines: 1. Those who are citizens of the Philippines at the time of the adoption of thi s

Constitution; (February 2, 1987) 2. Those whose fathers or mothers are citizens of the Philippines; (jus sanguin is) 3. Those born before January 17, 1973, of Filipino mothers, who elect Philippin e citizenship upon reaching the age of majority; 4. Those who are naturalized in accordance with law. Section 2, Article IV Natural-born citizens are those who are citizens of the Ph ilippines from birth without having to perform any act to acquire or perfect the ir Philippine citizenship. Those who elect Philippine citizenship in accordance with paragraph (3), Section 1 hereof shall be deemed natural-born citizens. Rosalind Ybasco Lopez was born on May 16, 1934 in Australia, to spouses Telesfor o Ybasco, a Filipino citizen and native of Daet, Camarines Norte, and Theresa Ma rquez, an Australian. Is she a Filipino citizen and, therefore, qualified to run for Governor of her province?

111 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Historically, she was born a year before the 1935 Constitution took into effect a nd at that time, what served as the Constitution of the Philippines were the org anic acts by which the US governed the country. These were the Philippine Bill o f July 1, 1902 and the Philippine Autonomy Act of August 29, 1916, also known as the Jones Law. These laws defined who were deemed to be citizens of the Philippine Islands. Xxx Under both organic acts, all inhabitants of the Philippines who were Spanish su bjects on April 11, 1899 and resided therein including their children are deemed to be Philippine citizens. Private respondents father, Telesforo, was born on Ja nuary 5, 1879 in Daet, Camarines Norte, a fact duly evidenced by a certified tru e copy of an entry in the registry of Births. Thus, under the Philippine Bill of 1902 and the Jones Law, Telesforo Ybasco was deemed to be a Philippine citize n. By virtue of the same laws, which were the law in force at the time of her bi rth, Rosalind Ybasco Lopez is likewise a citizen of the Philippines. The signing into law of the 1935 Constitution has established the principle of j us sanguinis as basis for the acquisition of Philippine citizenship xxx. This pr inciple confers citizenship by virtue of blood relationship. It was subsequently retained under the 1973 and 1987 Constitutions. Thus, herein private respondent, Rosalind Ybasco Lopez, is a Filipino citizen, h aving been born to a Filipino father. The fact of her being born in Australia is not tantamount to her losing her Philippine citizenship. If Australia follows t he principle of jus soli, then at most, private respondent can also claim Austra lian citizenship resulting to her possession of dual citizenship. (Valles vs. CO MELEC, 337 SCRA 543, August 9, 2000)

Maria Jeanette Tecson vs. COMELEC, G.R. No. 161434, March 3, 2004 (on the contro versy surrounding the citizenship of FPJ) The Court took note of the fact that Lo renzo Pou (grandfather of FPJ), who died in 1954 at the age of 84 years of age, would have been born sometime in 1870, when the Philippines was under the Spanis h rule, and that San Carlos, pangasinan, his place of residence upon his death i n 1954, in the absence of any other evidence, could have well been his place of residence before death, such that Lorenzo Pou would have benefited from the en ma sse Filipinization that the Philippine Bill of 1902 effected. That Filipino citiz enship of Lorenzo Pou, if acquired, would thereby extend to his son, Allan F. Po e (father of FPJ). The 1935 Constitution, during which regime FPJ has seen first light, confers citizenship to all persons whose fathers are Filipino citizens regardless of whethe r such children are legitimate or illegitimate. Marriage by Filipino to an alien: Citizens of the Philippines who marry aliens sh all retain their citizenship, unless by their act or omission they are deemed, u nder the law, to have renounced it [Sec.4, Art. IV]. 112 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos Re: Application for Admission to the Philippine Bar, Vicente D. Ching, Bar Matte r No. 914, October 1, 1999 Vicente Ching, a legitimate child, having been born on April 11, 1964 of Filipino mother and an alien father, was already 35 years old when he complied with the requirements of CA 625 on June 15, 1999, or over 14 y ears after he had reached the age of majority. By any reasonable yardstick, Chin gs election was clearly beyond the allowable period within which to exercise the privilege. All his acts (passing the CPA and Bar Exams) cannot vest in him citiz enship as the law gives him the requirement for election of Filipino citizenship which he did not comply with. (He was not allowed to take the Lawyers Oath) The proper period for electing Philippine citizenship was, in turn, based on the pronouncements of the Department of State of the US government to the effect th at the election should be made withinareasonabletimeafterattainingtheageofmajority . The phrase reasonable time has been interpreted to mean that the election should be made within three (3) years from reaching the age of majority except when th ere is justifiable reason to delay. The span of 14 years that lapsed from the time he reached 21 until he finally ex pressed his intention to elect Philippine citizenship is clearly way beyond the contemplation of the requirement of electing upon reaching the age of majority. (If his parents were not married, he will follow the citizenship of his mother an d he need not elect Philippine citizenship. ) Caram provision. Those born in the Philippines of foreign parents who, before th e adoption of the 1935 Constitution, had been elected to public office in the Is lands are considered citizens of the Philippines. In Chiongbian vs. de Leon, the SC held that the right acquired by virtue of this provision is transmissible. Re: 1973 Constitution: Those whose mothers are citizens of the Philippines. Prov ision is prospective in application; to benefit only those born on or after Janu ary 17, 1973 (date of effectivity of 1973 Constitution).

If born before January 17, 1973, of Filipino mothers, the person must elect Phil ippine citizenship upon reaching the age of majority. [Within reasonable time=3 years except when there is justifiable reason to delay]

Procedure for election of Philippine citizenship: 1. Election is expressed in a statement to be signed and sworn to by the party concerned before any official authorized to administer oaths. 2. Statement to be filed with the nearest Civil Registry accompanied with the O ath of Allegiance to the Constitution and the Government of the Philippines [Sec . 1, CA 625]. Those whose fathers or mothers are citizens of the rospective application, consistent with the 1973 Constitution. PhilippinesP

113 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

The right to elect Philippine citizenship is an inchoate right; during his minori ty, the child is an alien [Villahermosa vs. Commissioner of Immigration 80 Phil. 541]. The constitutional and statutory requirements of electing Filipino citizenship ap ply only to legitimate children. In Republic vs. Chule Lim, G.R. No. 153883, Jan uary 13, 2004, it was held that the respondent, who was concededly an illegitima te child considering that her Chinese father and Filipino mother were never marr ied, is not required to comply with said constitutional and statutory requiremen ts. Being an illegitimate child of a Filipino mother, respondent became a Filipi no upon birth. Record shows that respondent elected Filipino citizenship when sh e reached the age of majority. She registered as a voter in Misamis Oriental whe n she was 18 years old. The exercise of the right of suffrage and the participat ion in election exercises constitute a positive act of electing Philippine citiz enship. Naturalized citizens are those who have become Filipino citizens through naturalization, generally under CA No. 473, otherwise known as the Re vised Naturalization Law, which repealed the former Naturalization Law (Act No. 2927), and by RA 530. To be naturalized, an applicant has to prove that he possesses all the qualifica tions and none of the disqualifications provided by law to become a Filipino cit izen. The decision granting Philippine citizenship becomes executor on ly after 2 years from its promulgation when the court is satisfied tha t during the intervening period, the applicant: 1. Has not left the Philippines; 2. Has dedicated himself to a lawful calling or profession; 3. Has not been convicted of any offense or violation of go vernment promulgated rules; or 4. Has not committed any act prejudicial to the interest of the nation or contr ary to any government announced policies. [Sec. 1, RA 530] (Bengzon III vs. HRET

, G.R. No. 142840, may 7, 2001) Qualifications that must be possessed by an applicant: 1. He must be not less than 21 years of age on the day of the hearing of petiti on; 2. He must have resided in the Philippines for a continuous period of not less than 10 years; may be reduced to 5 years if: a. he honorably held office in Government; b. He established a new industry or introduced a useful invention in the Philippines; c. He is married to a Filipino woman; d. Has been engaged as a teacher in the Philippines (in a public or private sch ool not established for the exclusive instruction of persons of a particular nat ionality or race) or in any of the branches of education or industry for a perio d of not less than 2 year; or

114 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos e. He was born in the Philippines 3. He must be of GMC and believes in the principles underlying the Philippine C onstitution, and must have conducted himself in a proper and irreproachable mann er during the entire period of his residence in the Philippines in his relation with the constituted government as well as with the community in which he is liv ing; 4. He must own real estate in the Philippines worth not less than P5,000.00, Phi lippine currency, or must have some known lucrative trade, profession or lawful occupation; 5. He must be able to write and speak English or Spanish and any of the princip al languages; and 6. He must have enrolled his minor children of school age, in any of the public schools or private schools recognized by the Bureau of private Schools of the P hilippines where Philippine history, government and civic are taught or prescrib ed as part of the school curriculum, during the entire period of the residence i n the Philippines required of him prior to the hearing of his petition for natur alization as Filipino citizen. (Bengzon III vs. HRET, G.R. No. 142840, may 7, 2001)

Disqualifications: 1. Those opposed to organized government or affiliated with any association or group of persons who uphold and teach doctrines opposing all organized governmen ts; 2. Those defending or teaching the necessity or propriety of violence, personal assault or assassination for the success of predominance of their ideas; 3. Polygamists or believers of polygamy; 4. Those convicted of a crime involving moral turpitude; 5. Those suffering from mental alienation or incurable contagious disease; 6. Those who, during the period of their residence in the Philippines have not mingled socially with the Filipinos, or who have not evinced a sincere desire to learn and embrace the customs, traditions and ideals of Filipinos; 7. Those citizens or subjects of nations with whom the Philippines is at war, d uring the period of such war; 8. Those citizens or subjects of a foreign country whose laws do not grant Fili pinos the right to become naturalized citizens or subjects thereof. Procedure: 1. Filing of declaration of intention- 1 year prior to the filing of the Petiti on with the OSG Persons exempt from filing declaration of intention: a. Those born in the Philippines and received their primary and secondary educa tion in public or private schools recognized by the Government and not limited t o any race or nationality;

115 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos b. Those resided in the Philippines for 30 years or more before the filing of t he petition, and enrolled their children in elementary and HS recognized by the government and not limited to any race or nationality; c. Those widows and minor children of aliens who have declared their intention to become citizens of the Philippines and die before they are actually naturalized. 2. Filing of the Petition, accompanied by the affidavit of 2 credible persons, citizens of the Philippines, who personally know the petitioner, as character wi tness; 3. Publication of the Petition in the O.G. or in a newspaper of general circula tion once a week for 3 consecutive weeks. Failure to comply is fatal. (Po Yo Bi vs. Republic, 205 SCRA 400) 4. Actual residence in the Philippines during the entire proceedings. 5. Hearing of the Petition. 6. Promulgation of the decision. 7. Hearing after 2 years. During the 2-year probation period, applicant has:

a. Not left the Philippines; b. Dedicated himself continuously to a lawful calling or profession; c. Not been convicted of any offense or violation of rules; and d. Not committed an act prejudicial to the interest of the nation or contrary t o any government-announced policies. 8. Oath taking and issuance of Certificate of Naturalization. Modes of Naturalization: 1. DIRECT- through: d. Judicial or administrative proceedings- e.g. RA 9139 The Administrative Natu ralization Law of 2000grants Philippine citizenship to aliens born and residing i n the Philippines e. Special act of legislature- this is discretionary on Congress; usually confer red on an alien who has made an outstanding contribution to the country f. Collective change of nationality, as a result of cessation or subjugation g. Some cases, by adoption of orphan minors as nationals of the State wher e they are born 2. DERIVATIVE-Citizenship conferred on: a. Wife of naturalized husband; b. Minor children of naturalized person; c. Alien woman upon marriage to a national.

116 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Edison So vs. RP, G.R. No. 170603, January 29, 2007Naturalization signifies the a ct of formally adopting a foreigner into the political body of a nation by cloth ing him or her with privileges of a citizen. Under current and existing laws, th ere are 3 ways by which an alien may become a citizen by naturalization: a. Administrative naturalization pursuant to RA 9139; b. Judicial naturalization pursuant to CA No. 473, as amendedcovers all aliens r egardless of class; and c. Legislative naturalization in the form of a law enacted by Congress bestowin g Philippine citizenship to an alien. It is the burden of the applicant to prove not only his own good moral character but also the good moral character of his/her witnesses, who must be credible pe rsons. A naturalization proceeding is nota judicial adversary proceeding, and th e decision rendered therein does not constitute res judicata. A certificate of n aturalization may be cancelled if it is subsequently discovered that the applica nt obtained it by misleadintg the court upon any material fact. RA 9139not all aliens may avail of this remedy. Only native born aliens who have been residing here in the Philippines all their lives, who never saw any other c ountry and all along thought that they were Filipinos; who have demonstrated lov e and loyalty to the Philippines, and affinity to the customs and traditions of the Filipinos.

Naturalization Repatriation -mode for both acquisition and reacquisition of citizenship -governed by CA 473 (for acquisition) and CA 63 (for reacquisition) -consists a lengthy process -mode for reacquisition for those who lost their citizenship -governed by various statutes -consists of taking of an oath of allegiance to the RP and registering said oath in the LCR of the place where the person concerned resides or last resided Effects of Naturalization: 1. Vests citizenship on wife if she herself may be lawfully naturalized; (She n eed not go through the naturalization process; if she doesnt suffer from any disq ualification, no need to prove the qualifications) 2. Minor children born in the Philippines before the naturalization sh all be considered citizens of the Philippines; 3. Minor children born outside the Philippines who were residing in the Philipp ines at the time of naturalization shall be considered Filipino citizens. 4. Minor children born outside the Philippines before parents naturalization sha ll be considered Filipino citizens only during minority, unless they begin to r eside permanently in the Philippines; 5. Child born outside the Philippines after parents naturalization shall be 117 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos considered Filipino citizen, provided that he registers as such before any Phili ppine consulate within one year after attaining majority age, and takes his oath of allegiance. Denaturalization Grounds: 1. Naturalization certificate was obtained fraudulently or illegally; 2. Within 5 years, he returns to his native country or to some foreign country and establishes residence there; Prima Facie evidence of intent to take up residence: a. Native country- 1-year stay b. Foreign country- 2-year stay 3. Petition was made on an invalid declaration of intent; 4. Minor children failed to graduate through the fault of the parents either by neglecting to support them or by transferring them to another school; 5. Allowed himself to be used as a dummy; In Republic vs. Guy, 115 SCRA 244, although misconduct was committed after the 2 - year probationary period, conviction of perjury and rape was held to be valid ground for denaturalization. Effects of Denaturalization: 1. If the ground affects the intrinsic validity of the proceedings, denaturaliz ation shall divest the wife and children of their derivative naturalization; 2. If the ground was personal to the denaturalized person, his wife and childre

n shall retain their Philippine citizenship. Policy against Dual Allegiance: Dual allegiance of citizens is inimical to the na tional interest and shall be dealt with by law [Sec. 5, Art. IV]. The phrase dual citizenship in RA 7160, Section 40(d) LGC must be under stood as referring to dual allegiance. Consequently, persons with mere dual citize nship do not fall under this disqualification. Unlike those with dual allegiance , who must be subject to strict process with respect to the termination of their status, for candidates with dual citizenship, it should suffice if, upon filing of their Certificates of Candidacy (COC), they elect Philippine citizenship to terminate their status as persons with dual citizenship considering that their c ondition is the unavoidable consequence of conflicting laws of different states. By electing Philippine citizenship, such candidates at the same time, forswear a llegiance to the other country of which they are also citizens and thereby termi nate their status as dual citizens. It may be that, from the point of view of th e foreign state 118 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos and of its laws, such an individual has not effectively renounced his foreign ci tizenship. That is of no moment. The filing of a COC suffices to renounce foreign citizenship, effectively removin g any disqualification as dual citizen. ThisissobecauseintheCOC,onedeclaresthathe isa Filipino citizen and that he will support and defend the Constitution and wi ll maintain true faith and allegiance to the same. Such declaration under oath o perates as an effective renunciation of foreigncitizenship. In this case, the Co urt adopted the liberal interpretation of the rule. Manzano is not really prohib ited to run due to dual citizenship. Dual allegiance is the one prohibited. Dual citizenship referred to under Section 40 (d) of the Local Government Code refer s to dual allegiance under Section 5 of Article IV of the 1987 Constitution.[Mer cado vs. Manzano, 307 SCRA 630, May 26, 1999] Section 5, Article IVDual allegiance of citizens is inimical to the national inte rest and shall be dealt with by law. This section is not a self-executing law. It needs an implementing law. Section 40 (d), LGCDisqualifications.The following persons are disqualified from r unning from any elective local election: x x x (d) Those with dual citizenship. x x x. The provision prohibits dual citizenship but the Supreme Court ruled that it refe rs to prohibition on dual allegiance.

Doctrine of INDELIBLE ALLEGIANCE: an individual may be compelled to retain his o riginal nationality even if he has already renounced or forfeited it under the l aws of the second State whose nationality he has acquired. Dual Citizenship Dual Allegiance

arises as a result of the concurrent application of the different laws of 2 or more states, a person is simultaneously considered as a national of said st ates involuntary refers to a situation in which a person simultaneously owes, by some positive act, loyalty to 2 or more states voluntary

Calilung vs. Datumanong, G.R. No. 160869, May 11, 2007, what RA 9225 does is all ow dual citizenship to natural-born citizens who have lost their Philippine citi zenship by reason of their naturalization as citizens of a foreign country. On i ts face, it does not recognize dual allegiance. By swearing to the supreme autho rity of the Republic, the person implicitly renounces its foreign citizenship. P lainly, from Section 3, RA 9225 stayed clear out of the problem of dual allegian ce and shifted the burden of confronting 119 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos the issue of whether or not there is dual allegiance to the concerned foreign co untry. What happens to the other citizenship was not made a concern of RA 9225. Instances when a citizen of the Philippines may possess dual citizenship: 1. Those born of Filipino fathers and/or mothers in foreign countries which fol low the principle of jus soli; 2. Those born in the Philippines of Filipino mothers and alien fathers if by th e laws of their fathers country such children are citizens of that country; 3. Those who marry aliens if by the laws of the latters country the former are c onsidered citizens, unless by their act or omission they are deemed to have reno unced Philippine citizenship. [Mercado vs. Manzano, 307 SCRA 630, May 26, 1999] Res judicata in cases involving citizenship: General Rule: It does not apply to questions of citizenship. Exception: In Burca vs. Republic, 51 SCRA 248, an exception to the general rule was recognized provided the following must be present: 1. A persons citizenship be raised as a material issue in a controversy where sa id person is a party; 2. The Solicitor general or his authorized representative took active part in t he resolution thereof; and 3. The finding on citizenship is affirmed by SC. Although the GR was set forth in the case of Moy Ya Lim Yao, the case did not fo reclose the weight of prior rulings on citizenship. It elucidated that reliance may somehow be placed on these antecedent official findings, though no t really binding, to make the effort easier or simpler. (Valles vs. COMELEC, 337 SCRA 543, August 9, 2000).

Loss and Reacquisition of Philippine Citizenship

A. Loss of citizenship: 1. By naturalization in a foreign country (Frivaldo vs. COMELEC, 174 SCRA 245) However, this was modified by RA 9225An Act Making the Citizenship of Philip pine Citizens Who Acquire Foreign Citizenship Permanent September 15, 2003 which declares the policy of the State that all Philippine citizens who become citizen s of another country shall be deemed to have lost their Philippine citizenship u nder the conditions of this Act. They may reacquire Philippine citizenship by taking the oath of allegiance Those Filipino citizens who, after the effectivity of RA 9225, become citizens of a foreign country, may reacquire Philippine citizenship upon taking the oath of allegiance Unmarried child, whether legitimate, illegitimate or adopted, below 18 years of age, of those who reacquire their Philippine citizenship upon the

120 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos effectivity of RA 9225 shall be deemed citizens of the Philippines. Those who reacquire or retain Philippine citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of the Philippines and the following condi tions: o Meet the requirements of RA 9189, The Overseas Absentee Voting Act of 2003, and other existing laws o For those seeking elective public office and appointive office, meet the qua lifications, make personal and sworn renunciation, subscribe and swear to an oath of allegiance to the RP o For those intending to practice their profession, apply with the prop er authority for a license or permit to engage in such practice 2. By express renunciation of citizenship Conscious, voluntary and intelligent renunciation Labo vs. COMELEC, 176 SCRA 1, Labo lost Filipino citizenship because he expressl y renounced allegiance to the Philippines when he applied for Australian citizen ship. Express renunciation means a renunciation made known distinctly and explicitly,

and not left to inference or implication. Mere registration of alien in BID and mere possession of foreign passport do n ot constitute effective renunciation. (Valles vs. COMELEC) In Willie Yu vs. Defensor-Santiago, 169 SCRA 364, obtaining a Portuguese passpor t and signing commercial documents as a Portuguese were construed as renunciatio n of Philippine citizenship. 3. By subscribing to an oath of allegiance to support the Constitution or laws of a foreign country upon attaining the age of 21; provided, however, that a Fil ipino may not divest himself of Philippine citizenship in this manner while RP i s at war with any country. an application of the principle of Indelible Allegianc e.by virtue of RA 9225 4. By rendering service to or accepting commission in the armed forces of a for eign country EXCEPT: If RP has a defensive and/or offensive pact of alliance with the said foreign country; and The said foreign country maintains armed forces in Philippine territory with the consent of RP 5. By cancellation of the certificate of naturalization 6. By having been declared by competent authority a deserter of the 121 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos Philippine armed forces in time of war UNLESS subsequently, a plenary pa rdon or amnesty has been granted.

B. 1. 2. 3. 4.

Reacquisition of citizenship: Under RA 9225, by taking an oath of allegiance By naturalization By repatriation By direct act of Congress

Effect of repatriation: It allows the person to recover or return to, his original status before he lost his Philippine citizenship. Thus, the respondent, a former natural-born Filipin o citizen who lost his Philippine citizenship when he enlisted in the US Marine Corps, was deemed to have recovered his natural-born status when he reacquired F ilipino citizenship through repatriation. (Bengzon III vs. HRET, G.R. No. 142840 , May 7, 2001) Joevanie Arellano Tabasa vs. CA, G.R. No. 125793, August 29, 2006, the only per sons entitled to repatriation under RA 8171 are the following: a) Filipino women who lost their Philippine citizenship by marriage to aliens; and b) Natural-bor n Filipinos including their minor children who lost their Philippine citizenship on account of political or economic necessity.

122 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Article V S U F F R A G E

Section 1 Suffrage may be exercised by all citizens of the Philippines not otherwise disqu alified by law, who are at least eighteen (18) years of age, and who shall have resided in the Philippines for at least one year and in the place wherein they p ropose to vote for at least six months immediately preceding the election. No li teracy, property, or other substantive requirement shall be imposed on the exerc ise of suffrage.

Section 2 The Congress shall provide a system for securing the secrecy and sanctity of the ballots as well as a system for absentee voting by qualified Filipinos abroad. The Congress shall also design a procedure for the disabled and illiterates to vote without the assistance of other persons. Until then, they shall be allowed to vote under existing laws and such rules as the Commission on Elections may pr omulgate to protect the secrecy of the ballot. Right of Suffrage Right to vote in election of officers chosen by people and in the determination of questions submitted to people.

123 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos ELECTIONis the embodiment of the popular will, the expression of the sovereign po wer of the people. It is the means by which the people choose their officials for a definite and fi xed period and to whom they entrust for the time being the exercise of the power s of government. Kinds: 1. REGULAR ELECTIONrefers to an election participated in by those who p ossess the right of suffrage and not disqualified by law and who are registered voters. It is the election of officers either nationwide or in certain subdivisi ons thereof, after expiration of full term of the former members. a. National Election i. for President and VPevery 6 years ii. for Senatorsevery 3 years Paras vs. COMELEC, G.R. No. 123169, November 4, 1996, the SK Election is not a r egular election because the latter is participated in by youth with ages ranging from 15-18, as per RA 9164, some of whom are not qualified voters to elect loca l or national elective officials. b. Local Elections i. For Members of HOR ii. Party-List Representatives

iii. Provincial Officials Every 3 years from the 2nd iv. City Officials Monday of May 1992 v. Munic ipal Officials c. Barangay Electionsevery 3 years after July 2002 to be held on the last Monday of October, synchronized with the SK elections d. ARRM Elections i. For Regional Governor ii. Regional Vice Governor Every 3 years from March 1993 iii. Regional A ssemblymen e. Sanggguniang Kabataan (SK) Elections-- every 3 years after July 2002 to be held on the last Monday of October, synchronized with the Barangay elections

124 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos 2. SPECIAL ELECTIONwhen there is a failure of election on the scheduled date of regular election in a particular place or which is conducted to fill up certain vacancies, as provided by law. This is being held to fill any vacancy in an offi ce before the expiration of the full term for which the incumbent was elected. a. Plebisciteelectoral process by which an initiative on the Constitution is ap proved or rejected by the people. b. Initiativepower of the people to propose amendments to the Constitution or to propose and enact legislations through election called for the p urpose i. Initiative on the Constitution ii. Initiative on Statutes iii. Initiative on Local Legislation c. Referendumpower of the electorate to approve or reject a piece of legislation through an election called for the purpose. i. Referendum on Statutes ii. Referendum on Local Laws d. Recallmode of removal of an elective public officer by the people before the end of his term of office Components: Choice or selection of candidates to public office by popular vote Conduct of the polls Listing of voters Holding of electoral campaign Act of casting and receiving the ballots from the voters Counting he ballots Making election returns Proclaiming the winning candidates COMMISSION ON ELECTION (COMELEC) The COMELEC is an independent constitutional body charged with the exclusive pow er to administer and enforce laws and regulations relative to the con duct of elections and other political exercises, such as plebiscites, initiativ

es, referenda and recalls.

125 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos The periodic political exercises give meaning to the declaration in the Constitution that, sovereignty resides in the people and all government autho rity emanates from them. Powers and Functions: 1. Enforce and administer all laws and regulations relative to the conduct of a n election, plebiscite, referendum, initiative and recall. 2. Exercise a. Exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective provincial and city officials; b. Appellate jurisdiction over all contests involving i. Elective municipal officials decided by the trial courts of general jurisdic tion ii. Elective barangay officials decided by the trial courts of limited jurisdiction Decisions, final orders, or ruling of the COMELEC on election contests involving elective municipal and barangay offices shall be final and executory, and not ap pealable. 3. Decide, except those involving the right to vote, all questions affecting el ections, including determination of the number and location of polling places, a ppointment of election officials and inspectors, and registration of voters. 4. Deputize, with the concurrence of the President, law enforcement agencies an d instrumentalities of the government, including the AFP for the exclusive purpo se of ensuring free, orderly, honest, peaceful, and credible elections. 5. Registration of political parties, organization, or coalition/accreditation of citizens arms of the COMELEC. 6. File, upon verified complaint, or on its own initiative, petitions in court for the inclusion or exclusion of voters, investigate and where appropriate, pro secute cases for violations of election laws, including acts or omissions consti tuting election frauds, offenses and malpractices. 7. Recommend to Congress effective measures to minimize election spending, inclu ding limitation of places where propaganda materials shall be posted, and to pre vent and penalize all forms of election frauds, offenses, malpractices, and nuisance candidacies.

126 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos 8. Recommend to the President the removal of any officer or employee it has dep utized, or the imposition of any other disciplinary action, for violation or dis regard of, or disobedience to it. 9. Submit to the President and Congress a comprehensive report on the conduct o f each election, plebiscites, initiative, referendum, or recall.

POLITICAL PARTY A political party is any organized group of citizens advocating an ideology or p latform, principles and policies for the general conduct of government and which , as the most immediate means of securing their adoption, regularly nominates an d supports certain of its leaders and members as candidate in public office. To acquire juridical personality and to entitle it to rights and privileges gran ted to political arties, it must be registered with COMELEC.

Party-List System Act (RA 7941) (See Discussions under the Legislative Department) VOTERS Qualifications: 1. Filipino citizen 2. At least 18 years of age on the day of the election 3. Resident of the Philippines for at least one year immediately before the ele ction 4. Resident of the city/municipality wherein he proposes to vote for a t least 6 months immediately preceding the election 5. Not otherwise disqualified by law Requisites of Acquisition of Domicile by Choice 1. Residence or bodily presence in the new locality; 2. An intention to remain there; and 3. An intention to abandon the old residence. Aquino vs. COMELEC, 248 SCRA 400, the meaning and purpose of residency requireme ntthe place where a party actually or constructively has his permanent home, wher e he, no matter where he may be found at any given time, eventually intends to r eturn and remain, i.e., his domicile, is that to which the constitution refers when it speaks of residence for the purposes of election law. 127 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

In Marcita Mamba Perez vs. COMELEC, G.R. No. 133944, October 28, 1999, the fact that a person is registered as a voter in one district is not proof that he is n ot domiciled in another district. Thus, in Faypon vs. Quirino, the SC held that the registration of a voter in a place other than his residence of origin is not sufficient to consider him to have abandoned or lost his residence.

Disqualifications: 1. Sentence by final judgment to suffer imprisonment for not less than one year , unless pardoned or granted amnesty; but right is reacquired before expiration of 5 years after service of sentence 2. Conviction by final judgment of any of the following crimes: a. Crime involving disloyalty to the government b. any crime against national security c. Firearms laws But right is reacquired before expiration of 5 years after service of sentence. 3. Insanity or incompetence declared by competent authority (Section 18, OEC) REGISTRATION It refers to the act of accomplishing and filing a sworn application for registr ation by a qualified voter before the election officer of the city or municipali ty wherein he resides and including the same in the book of registered voters up on approval of the Election Registration Board (ERB). Registration does not confer the right to vote; it is but a condition precedent to the exercise of the right. Registration is a regulation, not a qualification. (Yra vs. Abano, 52 Phil 380) Voters Registration Act of 1996 (RA 8189)General Registration of Voters Continuing Registrationthe personal filing of application of registration of vote rs shall be conducted daily in the office of the Election Officer during regular office hours. Registration shall be conducted everyday except 120 days before a regular election and 90 days before election (Sec. 8, RA 8189)

128 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos In the case of Akbayan Youth vs. COMELEC, G.R. No. 147066, March 26, 2001, the SC upheld the COMELECs denial of the request for two (2) addi tional registration days in order to enfranchise more than 4 million youth who f ailed to register on or before December 27, 2000. It is an accepted doctrine in

administrative law that the determination of administrative agencies as to the o peration, implementation and application of law is accorded great weight, consid ering that these specialized government bodies are, by their nature and function s, in the best position to know what they can possibly do or not do under prevai ling circumstances. Petition for Inclusion (Sec. 34, RA 8189) and Exclusion (Sec. 35, RA 8189) of Vo ters in the List 1. Jurisdiction a. MTCoriginal and exclusive b. RTCappellate jurisdiction c. SCappellate jurisdiction over RTC on question of law 2. Petitioner a. Inclusion Private person whose application was disapproved by the ERB or whose name was s tricken out from the list of voters COMELEC b. Exclusion Any registered voter in the city or municipality Representative of political party Election officer COMELEC 3. Period of Filing a. Inclusionany day except 105 days before regular election or 75 days before a special election b. Exclusionanytime except 100 days before a regular election or 65 days before a special election Annulment of Book of Voters 1. Upon verified complaint of any voter, election officer or registered politic al party or motu proprio, the COMELEC may annul the list of voters which was not prepared in accordance with RA 8189 or whose preparation was affected with frau d, bribery, forgery, impersonation, intimidation, force or other similar irregul arity or is statistically improbable. 2. No list of voters shall be annulled 90 days before an election. 129 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Ututalum vs. COMELEC, 181 SCRA 335, annulment of the list of voters shall not co nstitute a ground for a pre-proclamation contest.

Overseas Absentee Voting Act of 2003 (RA 9189)

Absentee Votingprocess by which qualified citizens of the Philippines ab road exercise their right to vote pursuant to the constitutional mandate that Co ngress shall provide a system for absentee voting by qualified Filipinos abroad( Sec. 3a, RA 9189 and Section 2, Article V of the Constitution) It is an exception to the 6-month/1-year residency requirement. Overseas Absentee Votercitizens of the Philippines who is qualified to register a nd vote under this Act, not otherwise disqualified by law, who is abroad on the day of election Coverage: All citizens of the Philippines abroad, who are not otherwise disquali fied by law at least 18 years of age on the day of elections, may vote for Presi dent, VP, Senators and Party-List Representatives. (Sec. 4) Disqualifications: 1. Those who have lost their Filipino citizenship in accordance with Philippine laws; 2. Those who have expressly renounces their Philippine citizenship and who have pledged their allegiance to a foreign country; 3. Those who have committed and are convicted in a final judgment by a court or tribunal of an offense punishable by imprisonment of not less than 1 year, inclu ding those who have committed and been found guilty of disloyalty, such disabili ty not having been removed by plenary pardon or amnesty. Provided however, that any person disqualified to vote under this subsection shall automatically acquir e the right to vote upon expiration of 5 years after service of sentence; 4. An immigrant or a permanent resident who is recognized as such in the host country, unless he executes, upon registration, an affidavit for the purpose by the 130 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos COMELEC declaring that he shall resume actual physical residence not 3 years from approval of his registration. Such affidavit shall also he has not applied for citizenship in another country; and 5. Any citizen of the Philippines abroad previously declared insane ent by competent authority in the Philippines or abroad, as verified ne embassies, consulate or foreign service establishment concerned. later than state that or incompet by Philippi

Requirements for registration: 1. Valid passport 2. Accomplished registration form containing the following information: a. Last known residence of the applicant in the Philippines before leaving for abroad; b. Address of applicant abroad or forwarding address in the case of s eafarers; c. Where voting by mail is allowed, the applicants mailing address outside the P hilippines; and d. Name and address of applicants authorized representative in the Philippines.

In case of immigrants and permanent residents not otherwise disqualified to vote, an affidavit declaring the intention to resume actual physical permanent reside nce in the Philippines not later than 3 years after approval of his registration . Makalintal vs. COMELEC, G.R. No. 157013, July 10, 2003, Section 18.5 of RA 9189, insofar as it grants sweeping authority to the COMELEC to proclaim all win ning candidates, it is unconstitutional as it is repugnant to Section 4 of Artic le VII of the Constitution, which vest in Congress the authority to proclaim the winning Presidential or Vice-Presidential candidates. CANDIDATES QUALIFICATIONScontinuing requirements and must be possessed for the duration of t he officers active tenure. Once any of the required qualification is lost, his ti tle to the office may be seasonably changed. (Frivaldo vs. COMELEC, 174 SCRA 245 ) DISQUALIFIED CANDIDATES Under Omnibus Election Code (BP 881) 1. Any person declared by competent authority as insane or incompetent Removal of DQ: declaration of removal of DQ by competent authority 131 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

2. a. b. me

Any person sentenced by final judgment for any of the following offenses: Subversion, insurrection or rebellion Offense for which he was sentenced to penalty of more than 18 months c. Cri involving moral turpitude

Villaber vs. COMELEC, G.R. No. 148326, November 15, 2001, violation of BP 22 is a crime involving moral turpitude, because the accused knows at the time o f the issuance of the check that he does not have sufficient funds in, or credit with, the drawee bank for the payment of the check in full upon presentment. A conviction thereof shows that the accused is guilty of deceit, and certainly rel ates to and affects the good moral character of the person. Dela Torre vs. COMELEC, 258 SCRA 483, violation of the Anti-Fencing Law involves moral turpitude, and the only legal effect of probation is to suspend the imple mentation of the sentence. Thus, the disqualification still subsists. Removal of DQ: plenary pardon, amnesty, lapse of 5 years after service of senten ce 3. A permanent resident to or immigrant to a foreign country unless he waives s uch status (OEC, Sections 12 and 68)

In the case of Caasi vs. COMELEC, 191 SCRA 229, the SC said that a green card is a mple proof that the holder thereof is a permanent resident of, or immigrant to, the United States. 4. One who has violated provisions on: a. Campaign period; b. Removal, destruction of lawful election propaganda; c. Prohibited forms of propaganda; d. Regulation of propaganda through mass media; and e. Election offenses. In Pangkat Laguna vs. COMELEC, G.R. No. 148075, February 4, 2002, the acts of La guna Governor Lazaro in ordering the purchase of trophies, basketballs, volleyba lls, chessboard sets, and the distribution of medals and pins to various schools , did not constitute a violation of Section 80 on premature campaigning. Respond ent Lazaro was not in any way directly or indirectly soliciting votes; sh e was merely

132 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos performing the duties and tasks imposed upon her by law, which duties she had sw orn to perform as Governor of Laguna. Codilla vs. De Venecia, G.R. No. 150605, December 10, 2002, when a candidate has not yet been disqualified by final judgment during the election day and was vot ed for, the votes cast in his favor cannot be declared stray. To do so would amo unt to disenfranchising the electorate in whom sovereignty resides. Under Local Government Code (RA 7160) 1. Those sentenced by final judgment for an offense involving moral turpitude o r an offense punishable by imprisonment for at least 1 year, within 2 years afte r service of sentence; 2. Those removed from office as a result of an administrative case; Reyes vs. COMELEC, 254 SCRA 514, the Mayor who had been ordered removed from off ice by the Sangguniang Panlalawigan, was disqualified, even as he alleged that t he decision was not yet final because he had not yet received a copy of the deci sion, inasmuch as it was shown that he merely refused to accept delivery of the copy of the decision. 3. Those convicted by final judgment for violating the oath of allegiance to th e Republic; 4. Those with dual citizenship; (See the case of Mercado vs. Manzano and Valles vs. COMELEC) 5. Fugitives from justice in criminal or nonpolitical cases here or abroad; A fugitive from justice includes not only those who flee after conviction to avo id punishment, but likewise those who, after being charged, flee to avoid prosec

ution. In the case of Rodriguez vs. COMELEC, G.R. No. 120099, July 24, 1996, pet itioner cannot be considered a fugitive from justice, because his arrival in the Philippines from the US preceded the filing of the felony complaint in LA Court and the issuance of the arrest warrant by the same foreign court, by almost 5 m onths. 6. Permanent residents in foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after the effectivity o f this Code. See Caasi vs. COMELEC, 191 SCRA 229. 7. The insane or feeble-minded. (Sec. 40, LGC) 133 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos Under Revised Administrative Code (EO 292) 1. Ecclesiastics; 2. Persons receiving compensation from provincial or municipal funds; and 3. Contractors for public works of the municipality.

Under the Lone Candidate Law (RA 8295) 1. Any elective officials who has resigned from his office by accepting an appo intive office or for whatever reason which he previously occupied but has caused to become vacant due to his resignation; and 2. Any person who, directly or indirectly, coerces, bribes, threatens, harasses, intimidates or actually causes, inflicts or produces any violence, injury, puni shment, torture, damage, loss or disadvantage to any person or persons aspiring to become a candidate or that of the immediate member of his family, his honor o r property that is meant to eliminate all other potential candidates. Ocampo vs. Crespo, G.R. No. 158466, June 15, 2004, there must be final judgment before the election in order that the votes of a disqualified candidate can be c onsidered stray. The subsequent disqualification of a candidate who obtained the highest number o f votes does not entitle the candidate who garnered the second highest number of votes to be declared the winner.

Certificate of Candidacy (COC): Rules: 1. No person shall be elected into public office unless he files his COC within the prescribed period; 2. No person shall be eligible for more than one office. If he files for more t han one position, he shall not be eligible for all unless he cancels all and retains one .

3. The COC shall be filed by the candidate personally or by his duly authorized representative. 4. Upon filing, an individual becomes a candidate, he is already covered by the rules, restrictions and processes involving candidates. (Section 73, OEC) Effects of Filing COC:

134 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos Candidates igned from Candidates ice. (Sec. holding appointiveofficeorposition shall be considered ipso facto res his office. (Sec. 66, OEC) holding elective office shall not be considered resigned from his off 67 of OEC repealed by Section 14 of RA 9006)

Formal defects in the COCthe election of a candidate cannot be annulled on the so le ground of formal defects in his COC, such as lack of the required oath. (De G uzman vs. Board of Canvassers, 48 Phil 211) Duty to receive COC: ministerial duty of the COMELEC When a candidate files his COC, the COMELEC has a ministerial duty to receive an d acknowledge its receipt pursuant to Section 76, of the Election Code. The COME LEC may not, by itself, without the proper proceedings, deny due course to or ca ncel a COC filed in due form. (Luna vs. COMELEC, G.R. No. 165983, April 24, 2007) Abcede vs. Imperial, 103 Phil 136, the COMELEC has no discretion to give or not to give due course to a COC filed in due form. While it may look into patent def ects in the COC, it may not go into matters not appearing on their face. Exceptions: 1. Nuisance candidates 2. Petition to deny due course or to cancel a COCSec. 78 of the OEC 3. Filing of a disqualification case on any of the grounds enumerated in Sectio n 68, OEC. Where the decision of the COMELEC disqualifying the candidate is not yet final a nd executory on election day, the Board of Election Inspectors (BEI), in the exe rcise of its ministerial duty, is under obligation to count and tally the votes cats in favor of the candidate. (Papandayan vs. COMELEC, G.R. No. 147909, April 16, 2002) Cipriano vs. COMELEC, G.R. No. 158830, August 10, 2004, the COMELEC may not, by itself, without proper proceedings, deny due course to or cancel a COC filed in

due form. Section 78 of OEC, which treats of a petition to deny due course to or cancel a COC on the ground that any material representation therein is false, r equires that the candidate must be notified of the petition against him, and he should be given the opportunity to present evidence in his behalf. 135 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Effects of Filing Two (2) COC: Filing of two COC for different offices renders ineligibility for either positio n. (Section 73, OEC) Death, Disqualification and Withdrawal: If after the last day of filing of the COC, an official candidate of a registere d or accredited political party dies, withdraws or is disqualified for any cause , only a person belonging to, and certified by the same political party may file a COC to replace the candidate who died, withdrew or was disqualified. (Section 77, OEC) The concept of a substitute presupposes the existence of the person to be subs tituted. For how can a person take the place of somebody who does not exist or w ho never was. The existence of a valid COC seasonably filed is a requisite sine qua non. There was no valid substitution. The existence of a valid COC seasonabl y filed is a requisite sine qua non. It is as if he was not a candidate, he may not be substituted. Abaya was not proclaimed. (Miranda vs. Abaya, G.R. No. 13635 1, July 28, 1999) Doctrine of the Rejection of the Second Placer Labo doctrinethe disqualification of the elected candidate does not entitle the c andidate who obtained the 2nd highest number of votes to occupy the office vacat ed as a result of the disqualification. (Labo vs. COMELEC, 176 SCRA 1) Albana vs. COMELEC, G.R. No. 163302, July 23, 2004, the ineligibility of a candi date receiving majority votes does not entitle the eligible candidate receiving the next highest number of votes to be declared elected. To simplistically assum e that the second placer would have received the other votes would be to substit ute our judgment for the mind of the voter. The second placer is just that, a se cond placer. He lost in the election. Exceptions: A second placer may possibly be declared elected when the following conditions are met: 1. The one who obtained the highest number of votes is disqualified; and 2. The electorate is fully aware in fact and in law of the candidat es disqualification so as to bring such awareness within the realm of notoriety b ut would nonetheless cast their votes in favor of the ineligible candidate. (Grego vs. COMELEC, G.R. No. 125955, June 19, 1997)

136 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos In Fr. Cayat vs. COMELEC, G.R. Nos. 163776 and 165736, April 24, 2007, the law e xpressly declares that a candidate disqualified by final judgment before an elec tion cannot be voted for, and votes cast for him shall not be counted. This is a mandatory provision of law under Section 6 of RA 6646, the Electoral Reforms L aw of 1987. The SC did not apply this doctrine of the rejection of second placer which triggers the rule on succession. There was no second placer because Palil eng is not a second-placer but the only placer. There is only one candidate. Withdrawal of the COCshall effect the disqualification of the candidate to be ele cted for the position. (Ycain vs. Caneja, 81 Phil 773) The withdrawal of the withdrawal, for the purpose of reviving the COC must be ma de within the period provided by law for the filing of COC. (Monsale vs. Nico, 8 3 Phil 758) The affidavit of withdrawal can be filed directly with the main office of the CO MELEC, the office of the Regional Election Director concerned, office of the provincial election supervisor of the province to which the municipality belongs, or the office of the municipal election officer of the municipality. Nuisance Candidates They are candidates who have no bona fide intention to run for the office for wh ich the COC has been filed and would thus prevent a faithful election. COMELEC may refuse to give due course to or cancel a COC of a nuisance candidate . This can be done motu proprio or upon verified petition of an interested party . There should be a showing that: 1. The COC has been filed to put the election process in mockery/dispute; 2. The intent for filing is to cause confusion among the voters by the similari ty of the names of the registered candidates; 3. There are other circumstances which clearly demonstrate that the candidate h as no bona fide intention to run for the office. Garcia vs. COMELEC, G.R. No. 121139, July 12, 1996, proclamation of the winning candidate renders moot and academic a motion for reconsideration filed by a candidate who had been earlier declared by the COMELEC as nuisance candidate.

137 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R

review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos Petition to Deny Due Course to or Cancel COC (Sec. 78, OEC)a verified petition se eking to deny due course or to cancel a COC may be field by any person exclusive ly on the ground that any material representation contained therein as required in Section 74 hereof is false. The petition may be filed at any time not later than 25 days from the time of filing the COC and shall be decided, after due notice and hear ing, not later than 15 days before the election. Jurisdiction over a petition to cancel a COC lies with the COMELEC in division, n ot with the COMELEC en banc. (Garvida vs. Sales, G.R. No. 122872, September 10, 1997) Salcedo vs. COMELEC, G.R. No. 135886, August 16, 1999, material misrepr esentation contemplated in Section 78, OEC refers to qualifications for elective office. Aside from that, false representation must consist of a deliberate atte mpt to mislead, misinform, or hide a fact which would otherwise render a candida te ineligible. It must be made with an intention to deceive the electorate as to ones qualifications for public office. The use of surname, when not intended to mislead or deceive the public as to ones identity, is not within the scope of the provision. Lone Candidate Law (RA 8295) Upon expiration of the deadline for filing of COC in a special election called t o fill a vacancy in an elective position other that for President and VP, when t here is only one qualified candidate for such position, the lone candidate3 shal l be proclaimed elected to the position by proper proclaiming body of the COMELE C without holding the special election upon certification by the COMELEC thathei stheonlycandidatefortheoffice and is thereby deemed elected. The lone candidate so proclaimed shall assume office not earlier than the schedu led election day, in the absence of any lawful ground to deny due course or canc el the COC in order to prevent such proclamation, as provided for under Section 69 and 78 of OEC.

Loong vs. COMELEC, 216 SCRA 760, the petition for cancellation of the COC of Loo ng for alleged misrepresentation as to his age, filed by Ututalum beyond the 25day period from the last day for filing COC cannot be given due course. Neither can it be treated as quo warranto petition since there has been no proclamation yet. The evident purpose of the law in requiring the filing of the certif icate of candidacy, and in fixing the time limit therefor are: 138 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos 1. To enable the voters to know, at least 60 days before the regular election, the candidates among whom they are to make the choice; and 2. To avoid confusion and inconvenience in the tabulation of the votes cats. Fo r if the law did not confine the choice or election by the voters to the duly re

gistered candidates, there might be as many persons voted for as there are voter s, and votes might be cast even for unknown or fictitious persons as a mark to i dentify the votes in favor of a candidate for another office in the same electio n. (Miranda vs. Abaya, G.R. No. 136351, July 28, 1999)

CAMPAIGN Election and Campaign Periods (Sec. 3, OEC) Election period begins 90 days before the day of election and ends 30 days there afterperiod of time with respect to a scheduled date of election when the conduct of certain political activities are regulated by election laws, and the violati on of which constitutes election offense subject to penalties. Campaign Periods: 1. President and VP90 days before the day of election 2. Members of Congress, Senatorial, Provincial and City/Municipal45 days 3. Barangay Election15 days 4. Special Election45 days (Section 5, paragraph 2, Article VIII) The campaign period shall no include the day before and the day of the election. Period of time within the election period specified by law when bona fide candida tes can legally conduct campaign activities and other election propaganda in rel ation to the scheduled date of election. Fair Election Act of 2001 (RA 9006) Lawful Election Propaganda 1. Written/printed materials which does not exceed 8 inches x 14 inches 2. Handwritten/printed letters 3. Posters not exceeding 2x3 feet 4. Print ads 1/4 page in broadsheets and page for tabloids published 3x a week per newspaper d uring the campaign period 5. Broadcast ads on TV and radio 139 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos a. National positions120 mins. for TV, 180 mins. for radio b. Local positions60 mins. for TV, 90 mins. for radio (See the cases of PPI vs. COMELEC, G.R. No. 119694, May 22, 1995 and TELEBAP vs. COMELEC, G.R. No. 132922, April 21, 1998page 45 of this review notes)payment of j ust compensation is now expressly provided under Section 7 of RA 9006; payment o f just compensation is not necessary since it is a valid exercise of police powe r. Prohibited Campaign: 1. Public exhibition of movie, cinematograph or documentary portraying the life or biography of a candidate during the campaign period. 2. Public exhibition of a movie, cinematograph or documentary portrayed by an a

ctor or media personality who is himself a candidate. 3. Use of airtime for campaign of a media practitioner who is official of any p arty or member of the campaign staff of a candidate of political party. Limitation on Expenses Candidates: 1. President and VPP10/voter 2. Other candidate with partyP3/voter 3. Other candidate without partyP5/voter Statement of Contribution and Expenses Every candidate and treasurer of a political party shall, within 30 days after t he day of election, file with the COMELEC the full, true and itemized statement of all contribution and expenditures in connection with the election. Election Surveys Sec. 5.4 of RA 9006surveys affecting national candidates shall not be published w ithin 15 days before an election and surveys affecting local candidates shall no t be published 7 days before an election. This section was declared unconstituti onal in the case of Social Weather Station vs. COMELEC, G.R. No. 147571, May 5, 2001, for it violated the constitutional rights of speech, expression and the press. Reasons: 1. It imposes a prior restraint on the freedom of expression 2. It is direct and total suppression of a category of expression even though s uch suppression is only for a limited period. 3. The government interest sought to be promoted can be achieved by means other than the suppression of freedom of expression.

140 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos Substitution of Candidates In case of valid substitution after the official ballots have been printed, the votes cast for the substituted candidates shall be considered as stray votes but shall not invalidate the whole ballot. This rule shall not apply if the substit ute candidate is of the same family name. (Section 12, RA 9006) See the case of Luna vs. COMELEC A disqualified candidate may only be substituted if he had a valid certificate o f candidacy in the first place because, if the disqualified candidate did not ha

ve a valid and seasonably filed COC, he is and was not a candidate at all. If a person was not a candidate, he cannot be substituted under Section 77 of the OEC . (Miranda vs. Abaya, G.R. No. 136351, July 28, 1999) Rule Against Premature Campaigning The use of lawful election propaganda is subject to the supervision a nd regulation of the COMELEC in order to prevent premature campaigning and to eq ualize, as much as practicable, the situation of all candidates by preventing po pular and rich candidates from gaining undue advantage in exposure and publicity on account of their resources and popularity. Chavez vs. COMELEC, G.R. No. 162777, August 31, 2004, all propaganda materials i ncluding advertisements on print, in radio, or on television showing i mage or mentioning the name of a person, who subsequent to the placement or dis play thereof becomes a candidate for public office, be immediately removed, othe rwise, this shall be presumed as premature campaigning in violation of Section 8 0 of the OEC.

CASTING OF VOTES (Read Sections 190-198 of OEC)

Postponement of Election (Sec. 5, OEC) Causes: 1. Violence; 2. Terrorism; 3. Loss or destruction of election paraphernalia or records; 4. Force majeure; 5. Other analogous causes. COMELEC can postpone the election: 141 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos 1. Motu proprio; or 2. Upon a verified petition by any interested party, after due notice and heari ng. COMELEC shall call for the holding of the election on a date reasonably clos e to the date of the election not held, suspended or which resulted in a failure to elect but not later than 30 days after the cessation of the cause for such postponement or suspension of the election or failure to elect. Failure of Election (Section 6, OEC) Pre-conditions for declaring failure of elections 1. No voting has been held or election has been suspended before the hour fixed by law for the closing of the voting in any precinct because of: a. Force majeure b. Violence c. Terrorism d. Fraud e. Other analogous cases. 2. Votes not cast are sufficient to affect the results of the elections. (Tan v s. COMELEC, G.R. Nos. 148575-76, December 10, 2003)

COMELEC shall call for the holding or continuation of the election not held, sus pended or which resulted in a failure to elect on a date reasonably close to the date of the election not held, suspended or which resulted in a failure to elec t but not later than 30 days after the cessation of the cause of such postponeme nt or suspension of the election or failure to elect. The cause for the declaration of a failure of election may occur before or after the casting of votes or on the day of the election. (RA 7166, Synchronized Nati onal and Local Elections Act) The postponement, declaration of a failure of election and the calling of specia l elections shall be decided by the COMELEC sitting enbanc by a majority vote of its members. (Section 4, RA 7166, Synchronized National and Local Elections Act ) Batabor vs. COMELEC, G.R. No. 160428, July 21, 2004, the power to declare a fail ure of election is vested exclusively upon the COMELEC. x x x There is failure o f election only when the will of the electorate has been muted and cannot be asc ertained. Loong vs. COMELEC, the petition for annulment of election results or to declare failure of election in Parang, Sulu, on the ground of STATISTICAL IMPROBABILITY 142 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos and massive fraud was granted by the COMELEC. Even before the technical examinat ion of election documents was conducted, the cOMELEC already observed badges of fraud just by looking at the election results in Parang. Nevertheless, the COMEL EC dismissed the petition for annulment of election results or to declare failur e of elections in the municipalities of Tapul, Panglima Estino, Pata, Siasi and Kalinggalang Calauag. The dismissal was on the ground of untimeliness of the petition, despite a finding that the same badges of fraud evident from t he results of the election based on the certificates of canvass of votes in Para ng, are also evident in the election results of the five (5) mentioned municipal ities. The SC ruled that the COMELEC committed grave abused of discretion in dis missing the petition as thereisnolawwhich provides a reglementary period to file annulment of elections when there is yet no proclamation. The election resulted in a failure to elect on account of fraud. Accordingly, the Court ordered the C OMELEC to reinstate the aforesaid petition.

Banaga, Jr. vs. COMELEC, 336 SCRA 701, the circumstances in the above case are n ot present in this case so that reliance in Loong by petitioner Banaga is mispla ced. A prayer to declare failure of election and a prayer to annul the election results are actually of the same nature. Whether an action is for the declaratio n of failure of elections or for annulment of election results, based on allegat ions of fraud, terrorism, violence or analogous cases, the OEC denominates them similarly. Petition to Declare Failure of Election Election Protes

t A special action under Rule 26, Comelec Rules of Procedure Docket number starts with SPA An En Banc decision of the COMELEC in a special action becomes final and executor y after 5 days from promulgation, unless restrained by the SC An ordinary action under Rule 20, Comelec Rules of Procedure Docket number starts with EPC En Banc decision of the COMELEC in an ordinary action becomes final and executory within 30 days from its promulgation

COUNTING OF VOTES

143 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos Principle of Ballot Secrecyvoters are prohibited from exhibiting the contents of their official ballots to other persons, from making copies thereof, or from putting distinguishing marks thereon so as to be identified. The reason behind this is to avoid vote buying through voter identification. Rules for the Appreciation of Ballots: (Section 211, OEC)a function of the Board of Election Inspectors In reading and appreciation of ballots, every ballot shall be presumed valid unl ess there is clear and good reason to justify its rejection. In the appreciation of the ballots, the object should be to ascertain and carry into effect the int ention of the voter, if it could be determined with reasonable certainty. (Ferin vs. Gonzales, 53 SCRA 237) A ballot which has been cast carries the presumption that it reflects the will o f the voter. And the purpose of the election law is to give effect, rather than frustrate, that will. For this reason, extreme caution should be observed before a ballot is invalidated and doubts are to be resolved in favor of their validit y. 1. Where only first name or surname is writtenthe vote for such candidate is val

id, if there is no other with the same name or surname for the same office. Gonzaga vs. Seo, 7 SCRA 741, where there are 2 or more candidates having the same first name or the same surname, writing only the first name or the surname is n ot a valid vote for either of the candidates. In order that his vote may be coun ted, the voter should add the correct name, surname, or middle initial that will identify the candidate for whom he is voting. 2. Where only first name is surname of another, or where incumbents full name, f irst name or surname is same as anotherthe first part of the rule, the vote is co unted in favor of the candidate whose surname corresponds to the word. The secon d part refers to a situation where there are 2 or more candidates, one of whom i s an incumbent or re-electionist whose full name, first name, or surname is the same as the full name, first name, or surname of the other candidate or candidat es. Example: the incumbents name is Jose Santos, while the others candidates name is Jo se Santos, or Jose Cruz, or Ronaldo Santos. A vote for Jose Santos will be

144 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos counted for the incumbent candidate; a vote for Jose will be counted in favor of the incumbent; or a vote for Santos will be counted in favor of the incumbent c andidate. 3. Where candidate is a woman using her maiden or married surname or both which is same surname of incumbenta ballot bearing only such surname shall be counted in favor of the candidate who is an incumbent. Where none of the candidates is a n incumbent, a ballot bearing only such surname cannot be counted for any of the m. Where a ballot contains only the maiden surname of a candidate, and there is ano ther candidate bearing the same surname, such ballot shall be counted in her fav or. (Conui-Omega vs. Samson, 9 SCRA 493) 4. Where 2 or more words are surnames of 2 or more candidateswhen 2 or more word s are written on the same line on the ballot, all of which are the surnames of 2 or more candidates, the same shall not be counted for any of them. Exceptions: a. Unless one is a surname of an incumbent in which case it shall be counted in favor of the latter. b. If the word or words written on the appropriate blank on the ballot is the identical name or surname or full name, as the case may be, of 2 or more candida tes for the same office none of whom is an incumbent, the vote shall be counted in favor of the candidate to whose ticket all the other candidates voted for in the same ballot for the same constituency belongs. c. When 2 or more words are written on different lines on the ballot all of whi ch are the surnames of 2 or more candidates bearing the same surname for an offi ce for which the law authorizes the election of more than one and there are the same number of surnames written as there are candidates with that surname, the v

ote shall be counted in favor of all candidates bearing the surname. 5. Where single word is first name of candidate and surname of his opponent the vote shall be counted in favor of the latter (surname of the opponent). (Corpus vs. Ibay, 84 Phil. 184) 6. Where 2 words are written, one of which is the first name of the candidate a nd the other is the surname of his opponentthe vote shall not be counted for either. 145 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

7. Idem sonama name or surname incorrectly written which, when read, has a sound similar to the name or surname of a candidate when correctly written shall be c ounted in his favor. It is based on the principle that the misspelling of a name or lack of skill in writing it, should not be taken as a ground for rejecting t he votes apparently intended for a candidate, so long as the intention of the vo ter appears to be clear. This rule is liberally construed.] 8. Repetition of names in 2 or more linewhen the name of a candidate appears in a space of the ballot for an office which he is a candidate and in another space for which he is not a candidate, it shall be counted in his favor for the offic e for which he is a candidate and the vote for the office for which he is not a candidate shall be considered as stray, except when it is used as a means to ide ntify the voter, in which case the whole ballot shall be void. 9. Erroneous initialthe erroneous initial of the first name accompanied by the c orrect surname of a candidate or the erroneous initial of the surname accompanie d by the correct first name of a candidate shall not annul the vote in his favor .

10. Prefixes or suffixesballots containing prefixes such as Sr., Mr., Datu, Hon., suffixes Jr., II are valid. The use of these prefixes does not invalidate the ballot , the vote is counted in favor of the candidate whose name is with a prefix, the rule does not apply where the prefixes are used as identifying marks. 11. Use of nicknames and appellationsif accompanied by the first name or sur name of the candidate, does not annul such vote, except when they are used as a means to identify the voter, in which case the whole ballot is inval id. However, if the nickname used is unaccompanied by the name or surname of a c andidate and it is the one by which he is generally or popularly known in the lo cality, the name shall be counted in favor of said candidate, if there is no oth er candidate for the same office with the same nickname. 12. Descriptio Personaeit does not invalidate the ballot. 13. Vote in favor of disqualified candidateit shall be considered as stray vote a

nd shall not be counted, but it shall not invalidate the ballot. 146 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos Alfonso vs. COMELEC, 232 SCRA 777, a vote in favor of a candidate who died just before the election and was accordingly substituted by his daughter is a stray v ote and cannot be counted in favor of the latter. However, a vote cast with only the family name can be counted in favor of the daughter who bears such name. Certificate of Votes Balindong vs. COMELEC, 27 SCRA 567, the Certificate of Votes (CV) is evidenced n ot only of tampering, alteration, falsification or any other anomaly in the prep aration of the election returns but also of the votes obtained by the candidates . Garay vs. COMELEC, 261 SCRA 222, the CV can never be a valid basis for canvass; it can only be evidence to prove tampering, alteration, falsification or any oth er anomaly in the preparation of the election returns concerned, when duly authe nticated. A CV does not constitute sufficient evidence of the true and genuine r esults of the elections; only election returns are. In like manner, neither is t he tally board sufficient evidence of the real results of the election.

CANVASSING Canvassing Bodies: 1. Congressfor President and VP 2. COMELECSenators and Regional Officials 3. Provincial Board of Canvassersfor Congressmen, Municipal Officials 4. District Board of CanvassersCongressmen, Municipal officials 5. City and Municipal BOCCongressmen, City and Municipal officials 6. Barangay Board of CanvassersBarangay officials COMELEC has direct control and supervision over the Board of Canvassers except C ongress. It may motu proprio relieve at any time and substitute any member of th e board of canvassers. (Section 227, OEC) Prohibited Relationship: Related within the 4th civil degree by consanguinity o r affinity to any of the candidates whose votes will be canvassed by the Board, or to any member of the same Board Agujetas vs. CA, 261 SCRA 17, petitioners, members of the Board of Canvassers, w ho proclaimed as the 8th winning candidate one who did not obtain the 8th high est number of votes, may be criminally prosecuted for violation of Section 231 o f the OEC, failure to proclaim the winning candidate.

147 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

PRE-PROCLAMATION CONTROVERSYSection 241, OEC Any question pertaining to or affecting the proceedings of the board of canvassers which may be raised by any candidate or by any registered politica l party or coalition of political parties before the board or directly with the Commission, or any matters raised under Sections 233, 234, 235 and 236 in relati on to the preparation, transmission, receipt, custody and appreciation of the el ection returns. (Bandala vs. COMELEC, G.R. No. 159369, March 3, 2004) COMELEC shall have exclusive jurisdiction over all pre-proclamation controversie s. (Section 242, OEC)

Belac vs. COMELEC, G.R. No. 145802, April 24, 2001, Section 241 of the OEC provi des that a pre-proclamation controversy refers to any question pertaining to or affecting the proceedings of the Board of Canvassers which may be raised by any candidate or by any registered political party or coalition of political parties before the Board or directly with the COMELEC. In a pre-proclamation controversy, the COMELEC, as a rule, is restricted to an e xamination of the election returns and is without jurisdiction to go beyond or b ehind them and investigate election irregularities. The policy consideration underlying the delimitation of both substantive ground a nd procedure is the policy to determine as quickly as possible the result of the election on the basis of the canvass. It is for this reason that pre-proclamation controversies are mandated by law to be summarily disposed of.

Issues that may be raised in pre-proclamation controversy: 1. Illegal composition or proceedings of the board of canvassers; 2. The canvassed election returns (ER) are incomplete, contain material defects , appear to be tampered with or falsified, or contain discrepancies in the same returns or in authentic copies thereof. 148 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R

review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos 3. The ERs were prepared under duress, threats, coercion, or intimidation, or t hey are obviously manufacture, or not authentic. 4. When substitute and fraudulent returns in controverted polling places were ca nvassed, the results of which materially affected the standing of the aggrieved candidates. (Section 243, OEC) Issues #s 2, 3 and 4 are not applicable to election of President, VP, Senators a nd Members of the House of Representatives. Only #1 is applicable to them. General Rule: Candidates and registered political parties involve in an election are allowed to file a pre-proclamation cases before the COMELEC. Exception: Pre-proclamation cases are not allowed in elections for President, VP , Senators, and Members of the HOR. However, this does not preclude the authorit y of the appropriate canvassing body motu proprio or upon written complaint of a n interested person to correct manifest errors, question the composition or proc eeding of the board of canvassers and to determine the authenticity and due exec ution of certificates of canvass as provided in Section 30 of RA 7166, as amende d by RA 9369. (Pimentel III vs. COMELEC, G.R. No. 178413, March 13, 2008) manifest errorsthe error must appear on the face of the Certificates of Canvass or Election Returns sought to be corrected. It is one that is visible to the eye or obvious to the understanding; that which is open, palpable, incontrovertible, n eeding no evidence to make it more clear. (OHara vs. COMELEC, G.R. No. 148941-42, March 12, 2002) Correction of manifest errors has reference to errors in the election returns, i n the entries of the statement of votes by precinct per municipality, or in the certificate of canvass. Some of the definition given for the word manifest are tha t it is evident to the eye and understanding, visible to the eye, that which is o pen, palpable, and incontrovertible, needing no evidence to make it more clear, not obscure or hidden. (Dela Llana vs. COMELEC, G.R. No. 152080) Espidol vs. COMELEC, G.R. No. 164922, October 11, 2005, COMELEC is with authorit y to annul any canvass and proclamation illegally made. The fact that a candidate illegally proclaimed has assumed office is not a bar to the exerci se of such power. It is also true that as a general rule, the proper remedy afte r proclamation of the winning candidate for the position contested would be to f ile a regular election protest or quo warranto except where the proclamatio n is null and void, the proclaimed candidates assumption of office cannot d eprive the COMELEC of the power to declare such proclamation a nullity. 149 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Sandoval vs. COMELEC, G.R. No. 133842, January 26, 2000, the authority to rule o

n petitions for correction of manifest error is vested in the COMELEC EN BANC. S ection 7 of Rule 27 of the 1993 COMELEC Rules of Procedure provides that if the error i s discovered before proclamation, the board of canvassers may motu proprio, or upo n verified petition by any candidate, political party, organization or coalition of political parties, after due notice and hearing, correct the errors committe d. The aggrieved party may appeal the decision of the board to the COMELEC and s aid appeal shall be heard and decided by the COMELEC EN BANC. Section 5, however , of the same rule states that a petition for correction of manifest errors may be filed directly with the Commission en banc provided that such errors co uld not have been discovered during the canvassing despite the exercise of due diligence and proclamation of the winning candidate had already been made.

Pre-Proclamation Controversy There was election Jurisdiction: Division of a COMELEC

Petition for Failure of Election

Once proclaimed, the pre-proclamation shall be dismissed There was no election Jurisdiction: COMELEC En Banc

Lagumbay vs, COMELEC, 16 SCRA 175, the election return was an obviously manufact ured return. The returns were palpably false as it was indeed statistically impr obable that all the eight candidates of one party garnered all the votes each of them received exactly the same number, whereas all the 8 candidates of the othe r party got precisely nothing. The Supreme Court enunciated the DOCTRINE OF STA TISTICAL IMPROBABILITY. It states that where there exists uniformity of tallies in favor of candidates belonging to one party and the systematic blanking out of the opposing candidates, as when all the candidates of one party received all t he votes, each of whom exactly the same number, and the opposing candidates got zero votes, the election returns are obviously manufactured, contrary to all sta tistical probabilities, and utterly improbable and clearly incredible. The doctrine applies only when the improbability is shown on the face of the ER i tself and without regard to evidence aliunde or to evidence outside of the retur n.

150 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos Simultaneous ion Prosecution of Pre-Proclamation Controversies and Elect

Protests There is no law or rule prohibiting the simultaneous prosecution or adjudication of pre-proclamation controversies and election protests. Allowing the simultane ous prosecution scenario may be explained by the fact that pre-proclamation cont roversies and election protests differ in terms of the issues involved and the e vidence admissible in each case and the objective each seeks to achieve. (Tan vs . COMELEC, G.R. Nos. 166143-47, November 20, 2006)

Piercing the Veil of Election Returns The general rule is that a pre-proclamation case before the COMELEC is, logicall y, no longer viable after a proclamation has been made. However, this rule admit s of exceptions, as when the proclamation is null and void. The proclamation of petitioner in this case is void for three (3) reasons: 1) it was based on a canv ass that should have been suspended with respect to the contested election retur ns; 2) it was done without prior COMELEC authorization which is required in view of the unresolved objections of Talib to the inclusion of certain returns in th e canvass; and 3) it was predicated on a canvass that included unsigned election returns involving such number of votes as will affect the outcome of the electi on. In this regard, it has long been recognized that among the reliefs that the COMELEC may grant is to nullify a proclamation or suspend the effect of one.

It is a well-entrenched rule in jurisprudence that in a pre-proclamati on controversy, the Board of Canvassers and the COMELEC are not to look beyond o r behind election returns which are on heir face regular and authentic returns. (Jainal vs. COMELEC, G.R. No. 174551, March 7, 2007)

PROCLAMATION In the absence of an appeal, the Board of Canvassers shall proclaim the winner.

ELECTION OFFENSES Prohibited Acts: (Sections 261, 262, OEC) 1. Vote buying and vote selling; 2. Conspiracy to bribe voters; 3. Wagering upon result of election;

151 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos 4. Coercion of subordinates;

5. Threats, intimidation, terrorism, use of fraudulent device or other forms o f coercion; 6. Coercion of election officials and employees; 7. Appointment of new employees, creation of new position, promotion, giving o f salary increases; 8. Intervention of public officers and employees; 9. Undue influence; 10. Unlawful electioneering; 11. Others. Good faith is not a defense. Election offenses are generally mala prohibita. Proo f of criminal intent is necessary. Good faith, ignorance or lack of malice is no t a defense; the commission of the prohibited act is sufficient. Jurisdiction: 1. Investigation and prosecutionCOMELECthe investigating officer shall resolve the case within five (5) days from submission. 2. Trial and decisions: RTCexclusive original jurisdiction any criminal action or proceedings for violati on of OEC Exception: offenses relating to failure to register or failure to vote (MTC) Prescription: 5 years from the date of their commission ELECTION CONTEST Nature: special summary proceedingto expedite the settlement of controver sies between candidates as to who receive the majority of legal votes. Purpose: to ascertain the true will of the people Election Laws, how Construedlaws governing election contests must be liberally co nstrued to the end that the will of the people in the choice of public officials may not be defeated by mere technical objections. In an election case, the cour t has the imperative duty to ascertain by all means within its command who is th e real candidate elected by the electorate. (Dela Llana vs. COMELEC, G.R. No. 152080) Original Exclusive Jurisdiction 1. Supreme Court (PET) President Vice-President Tecson vs. COMELEC, , G.R. No. 161434, March 3, 2004, the word contest refers to either Election Protest or Quo Warranto which are two

152 2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos (2) distinct post-election remedies. They have one objective, i.e., to unseat th e winning candidate. 2. Senate Electoral Tribunal (SET) Senators 3. House of Representatives Electoral Tribunal (HRET) Congressmen 4. COMELEC Regional officials Provincial officials City officials 5. Regional Trial Court Municipal officials 6. Metropolitan Trial court, Municipal Circuit Trial Court, and Municipal Trial Court Barangay officials Sangguniang Kabataan

HRET Rules of Procedure shall prevail over the provisions of the Omnibus Election Code. (Lazatin vs. HRET, 168 SCRA 391) Pimentel III vs. COMELEC, G.R. No. 178413, March 13, 2008, the SC has no jurisdi ction to entertain a petition for certiorari and mandamus on matters which may b e threshed out in an election contest. It is the SET which has exclusive jurisdi ction to act on the complaint involving, as it does, a contest relating to the e lection of a now member of the Senate.

Appellate Jurisdiction 1. For decisions of RTC and MTCappeal to COMELEC whose decision shall be final a nd executor 2. For decisions of COMELECPetition for Review on Certiorari with SC within 30 d ays from receipt of decision on ground of grave abuse of discretion amounting to lack or excess of jurisdiction or violation of due process 3. For decisions of Electoral TribunalPetition for Review on Certiorari with SC on ground of grave abuse of discretion amounting to lack or excess of jurisdicti on or violation of due process ACTIONS WHICH MAY BE FIELD: 153 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos 1. ELECTION PROTESTfiled by any candidate who has filed a COC and has been voted upon for the same office on the grounds of: Fraud; Terrorism;

Irregularities; or Illegal acts, committed before, during or after casting and counting of votes Filed within 10 days from proclamation of results of election Death of Protestantdoes not Poe vs. Arroyo, PET Case No. s no status of real party in who died during the pendency necessarily extinguish an election protest 002, March 29, 2005, the widow of the protestant ha interest to substitute or intervene for the latter of the election protest.

De Castro vs. COMELEC, G.R. No. 125249, February 7, 1997, an election protest is imbued with public interest which raises it onto a plane over and above ordinar y civil actions, because it involves not only the adjudication of the private in terest of the rival candidates but also the paramount need of dispelling once an d for all the uncertainty that beclouds the real choice of the electorate with r espect to who shall discharge the prerogatives of the office within their gift. Villamor vs. COMELEC, G.R. No. 169865, July 21, 2006, the filing of an election protest or a petition for quo warranto precludes the subsequent fili ng of a pre- proclamation controversy or amounts to the abandonment of one earli er filed, thus depriving the COMELEC of the authority to inquire into and pass u pon the title of the protestee or the validity of his proclamation. 2. QUO WARRANTOfiled by any registered voter in the constituency on the grounds of: Ineligibility; or Disloyalty to the Republic Filed within 10 days from proclamation of results of election

ELECTION PROTEST QUO WARRANTO A contest between the defeated and winning candidates, based on grounds of electi on frauds or irregularities, as to who actually obtained the majority of Refers to questions of disloyalty and ineligibility of the winning candidates. It is a proceeding to unseat the ineligible person from office, but no t to

154 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos the legal votes and therefore is entitled to hold the office.

Filed by filed by any candidate who has filed a COC and has been voted for. A protestee may be ousted and the protestant vacated. install the protestant in his place. may seat in the office

Filed by any registered voter in the constituency. The respondent may be unseated but the petitioner will not be seated. (Dumayas, Jr. vs. COMELEC, G.R. Nos. 141952-53, April 20, 2001)

Quo Warranto in Elective Office Quo Warranto in Appointive Office The issue is the eligibility of the officer- elect; the court or tribunal canno t declare the protestant as having been elected. The issue is the legality of the appointment; the court determ ines who of the parties has legal title to the office. The period for filing an election protest is suspended during the pendency of a p re- proclamation controversy. (Gatchalian vs. COMELEC, 245 SCRA 208)

COUNTER-PROTEST A protestee may incorporate in his answer a counter-protest. It is tantamount to a counterclaim in a civil action and may be presented as a part of the answer w ithin the time he is required to answer the protest, i.e., within five (5) days upon receipt of the protest,unlessamotionforextensionisgranted,inwhichcaseitmust befiledbefore the expiration of the extended time. The counter-protest must be filed within the period provided by law, otherwise, the forum loses its jurisdiction to entertain the belatedly filed counter-protes t. The period to be observed is within five (5) days from the time of the receip t of the copy of the protest. The 5-day period is not only mandatory requirement of the law but also jurisdictional so that the court is ousted to entertain cou nter-protest belatedly filed. (Kho vs. COMELEC, 279 SCRA 463, September 25, 1997)

155 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Francis King Marquez vs. COMELEC, G.R. No. 127318, August 25, 1999, a ny contest relating to the election of members of the Sangguniang Kaba taan (SK), including the Chairmanwhether pertaining to their eligibility or the manner of their electionis cognizable by MTCs, MCTCs, and MeTCs. Section 6 of COM ELEC Resolution No. 2824 which provides that cases involving the eligibility or qualification of SK candidates shall be decided by the City/Municipal Election O fficers whose decision shall be final, applies only to proceedings before the el ection. Before proclamation, cases concerning the eligibility of SK Officers an d members are cognizable by the Election Officer. But aftertheelectionandproclam ation, the same cases become quo warranto cases cognizable by MTCs, MCTCs, and M eTCs. The distinction is based on the principle that it is the proclamation whic h marks off the jurisdiction of the courts from the jurisdiction of election off icials. Gementiza vs. COMELEC, 353 SCRA 724, March 6, 2001, the COMELEC EN BANC shall de cide motions for reconsideration only for decisions of a Division, meaning those acts of final character. The interlocutory order ruled by the Division of COMELEC should be brought up to the Supreme Court thru Certiorari. Rule 3, Section 5c of COMELEC Rules of ProceduresAny motion to reconsider a decis ion, resolution, order or ruling of a Division shall be resolved by the Commissi on en banc except motions on interlocutory orders of the division, which shall be resolved by the divisions which issued the order. Only final orders of a Division may be raised before the COMELEC en banc is in a ccordance with Article IX-C, Section 3 of the Constitution which mandates that o nly motions for reconsideration of final decisions shall be decided by the COMEL EC en banc. Counter-Protest erroneously filed and accepted by the COMELECremedy: 1. Erase from the record; 2. Certiorari. Execution Pending Appealthe trial court may grant a motion for execution pending appeal because the mere filing of an appeal does not divest the trial court of its jurisdiction over a case and to resolve pending incidents. Since the court and jurisdiction to act on the motion at the time it was filed, that j urisdiction continued until the matter was resolved, and was not lost by the subsequent action of the opposing party. (Edding vs. COMELEC, 246 SCRA 502) 156 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Dulce Ann given the tion, the therwise,

Hofer vs. HRET, G.R. No. 158833, May 12, 2004, by the very nature and public interest involved in the determination of the result of an elec controversies arising from the canvassing must be resolved speedily, o the will of the electorate will be frustrated.

Procedural rules in election cases are designed to achieve not only a correct bu t also an expeditious determination of the popular will of the electorate.

Article VI LEGISLATIVE DEPARTMENT Legislative Power It is the power or competence of the legislative to propose, enact, ordain, amen d/alter, modify, abrogate or repeal laws. It is vested in the Congress which sha ll consist of a Senate and a House of Representatives, except to the extent rese rved to the people by the provision on initiative and referendum. SENATE HOUSE OF REPRESENTATIVES Composition: Twenty-four (24), elected at large by the qualified voters of the P hilippines, as may be provided by law. Qualifications: Composition: not more than 250 members, unless otherwise provided by law, consis ting of: a. District Representatives elected from legislative districts apportioned among the

157 2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos a. Natural-born citizen of the Philippines; b. At least thirty-five (35) years of age on the day of the election; c. Able to read and write; d. Registered voter; e. Resident of the Philippines for not less than 2 years immediately preceding the day of the election. Term of office: 6 yearsshall commence, unless otherwise provided by law, at noon on the 30th day of June next following their election. Disqualifications: a. No Senator shall serve for more than 2 consecutive terms. Voluntary renunci ation of the office for anylengthoftime shall not be considered as an inte rruption in the continuity of his service for the full term for which he was ele cted. (Section 4, Article VI) b. One who has been declared by competent authority as insane or incompetent c. One who has been sentenced by final judgment for: i. Subversion; ii. Insurrection; iii. Rebellion; iv. Any offense for which he has been sentenced to a penalty of not more tha n 18 months; or provinces, cities and the Metropolitan Manila area. (Sec. 5, par. 1, Article VI) b. Party-List Representatives constitutes 20% of the total number of represent atives elected through a party-list system of registered national, regional an d sectoral parties or organization. c. Sectoral Representatives1/2 of the seats allocated to party-list representa tives shall be filled, as provided by law, by selection or election from the: i. Labor; ii. Peasant; iii. Urban poor; iv. Indigenous cultural communities; v. Women; vi. Youth; and vii. Such other sectors as may be provided by law, except the religious sector. Term of office: three (3) years, which shall begin, unless otherwise provided by law, at noon of June 30 next following their election. Qualifications: 1. Natural-born citizen of the Philippines; 2. At least 25 years of age on the day of the election; 3. Able to read and write;

4. Registered voter in the district in which he shall be elected except th e party-list representatives; 5. Resident of the district for a period of not less than 1 year immediately pr eceding the day of the election;

158 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos v. A crime involving moral turpitude, unless given plenary pardon or granted am nesty (Section 12, BP 881 Omnibus Election Code) Electoral Tribunal: Senate Electoral Tribunal (SET)composed of three (3) Sup reme Court Justices and six (6) Senatorsto act as sole judge of all contest rel ating to election returns and qualifications of their respective members. Removal: Thru EXPULSION by the Senate with the concurrence of two-thir ds (2/3) of all its members (Section 16, par. 3, Article VI) 6. For party-list representatives or organizations: a. Natural-born citizen of the Philippines; b. A registered voter; c. A resident of the Philippines for a period of not less than one (1) year imm ediately preceding the day of the election; d. Able to read and write; e. A bona fide member of the party or organization which he seeks to represen t for at least ninety (90) days preceding the day of the election; f. At least 25 years of age on the day of the election; g. The political party, sector, organization or coalition must represent the mar ginalized and underrepresented groups. h. Must comply with the declared policy of enabling Filipino citizens b elonging to marginalized and underrepresented sectors to be elected to the House of Representatives; i. Religious sector may not be represented in the party-list system; j. A party or an organization must not be disqualified under Sec. 6, RA 7941; k. The party or organization must not be an adjunct of, or a project organized or an entity funded or assisted by the government; l. The party must not only comply with the requirements

159 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

of the law; its nominees must likewise do so; m. Not only the candidate party or organization must represent marginalized a nd underrepresented sectors; so also must its nominees; and n. The nominee must likewise be able to contribute to the formulation and en actment of appropriate legislation that will benefit the nation as a whole. Manner of Voting: (Sec. 10, RA 7941) Every voter shall be entitled to two (2) vo tes: (1) for candidate for member of the HOR in his legislative district, and (2 ) for the party, organizations, or coalition he wants represented in the HOR: provided, that a vote cast for a party, organizations, or coalition not entitle d to be voted for shall not be counted. Disqualifications: a. Shall not serve for more than three (3) consecutive terms. (Sec. 7, Article VI) b. One who has been declared by competent authority as insane or incompeten t c. One who has been sentenced by final judgment for: i. Subversion; ii. Insurrection; iii. Rebellion; iv. Any offense for which he has been sentenced to a penalty of not more than 18 months; or v. A crime involving moral turpitude, unless given plenary pardon or granted amn esty (Section 12, BP 160 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos 881Omnibus Election Code) d. For Party-List Representatives: i. It is a religious sect or denomination, organization or association organized for religious purposes; ii. It advocates violence or unlawful means to seek its goal; iii. It is a foreign party or organization; iv. It is receiving support from any foreign government, foreign political part y, foundation, organization, whether directly or through any of its officers or members or indirectly through third parties for partisan election purposes; v. It violates or fails to comply with laws, rules or regulations relat ing to elections; vi. It declares untruthful statement in its petition; vii. It has ceased to exist for at least one (1) year; viii. It fails to participate in the last two preceding elections or fails to o btain at least 2% of the votes cast under the party-list system in the two prece ding elections for the constituency in which it had registered. (Section 6, R A 7941) Canvassing Board: COMELEC Electoral Tribunal: House of Representative Electoral Tribunal (HRET)composed of nine

161 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos (9) members: 3 Supreme Court Justices and six (6) members of the CongressSection 17, Art. VI Removal: EXPULSION by the House with the concurrence of two-thirds (2/3) of all its members (Sec. 16, par. 3, Art. VI)

VacancySection 9, Article VIIn case presentatives, a special election may er prescribed by law, but the Senator thus elected shall serve only for the

of vacancy in the Senate or in the House of Re be called to fill such vacancy in the mann or Member of the House of Representatives unexpired term.

SalariesSection 10, Article VIThe salaries of Senators and Members of the House of Representatives shall be determined by law. No increase in said compensation sh all take effect until after the expiration of the full term of all the Members o f the Senate and the House of Representatives approving such increase. Inhibitions and Prohibitions: a. Incompatible officemay not hold office or employment in government du ring his term without forfeiting his seat; b. Forbidden officemay not be appointed to any office created or compensation thereof increased during the term for which he was elected. (Sec . 13, Article VI) c. Cannot appear as counsel before any court or before the Electoral Tribunals, quasi-judicial or other administrative bodies; d. Shall not, directly or indirectly, be financially interested in any contract with, franchise or special privilege granted by the government; e. Shall not intervene in any matter before any office in government for his pe cuniary benefit or where he may be called upon to act on account of his office ( Sec. 14, Article VI). CONFLICT OF INTERESTall members of the Senate and the HOR shall, upon assumption of office, make a full disclosure of their financial and business interests. The y shall notify the House concerned of a potential conflict of interest that may arise from the filing of a proposed legislation of which they are author.

162 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R

review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos Incompatible Officeno Senator or member of the House of Representatives may hold any other office or employment in the Government, or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries, during his term without forfeiting his seat. The purpose is to prevent him from owing loyalty to another branch of the government, to the detriment of the independence of the legislature and the doctrine of separation of powers. The prohibition is not absolute, what is not allowed is the simultaneous holding of that office and the seat in the Congress. Any legislator may hold another of fice or employment in the government provided he forfeits his position in the Co ngress. Forfeiture of the legislators seat, or cessation of his tenure, shall be automati c upon holding of the incompatible office. Forbidden Officeno Senator or member of the House of Representatives shall be app ointed to any office, which may have been created, or the emoluments thereof inc reased during the term for which he was elected. With this, even if the member of the Congress is willing to forfeit his seat the rein, he may not be appointed to any office in the government that has been crea ted or the emoluments thereof have been increased during his term. Such a positi on is forbidden office. The purpose is to prevent trafficking in public office. The provision does not apply to elective offices. The appointment of the member of the Congress to the forbidden office is not all owed only during the term for which he was elected, when such office was create d or its emolumentswereincreased. After such term, and even if the legislator is reelected, the disqualification no longer applies and he may therefore be appoi nted to the office. Privileges: a. Freedom from arrestwhile Congress is in session for offense punished by not m ore than 6 years imprisonment (Article 145, RPC; Sec. 11, Art. VI) b. Speech and Debate clausenot to be questioned nor held liable in any other pl ace for any speech or debate in Congress or in any committee thereof. (Section 11, Article VI) (See discussion under Parliamentary Immunity) 163 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Composition and Qualificationsthey are exclusive under the principle of expressio unios est exclusio alterius, with the result that it is not competent for the Co ngress to provide by mere legislation for additional qualifications no matter ho w relevant they may be. (Justice Isagani Cruz, Philippine Political Law) In Marcos vs. COMELEC, 248 SCRA 300, the Court upheld the qualification of Imeld a Marcos, despite her own declaration in her certificate of candidacy that she h ad resided in the district for only seven (7) months, because of the following: a. A minor follows the domicile of his parents; Tacloban became her domicile of origin by operation of law when her father brought their family to Leyte; b. Domicile of origin is lost only when there is actual removal or change of domicile, a bona fide intention of abandoning the former residence and establish ing a new one, and acts which correspond with the purpose; in the absence of c lear and positive proof of the concurrence of all these, the domicile of ori gin should be deemed to continue; c. The wife does not automatically gain the husbands domicile because the term r esidence in Civil Law does not mean the same thing in Political Law; when Mrs. Ma rcos married Ferdinand Marcos in 1954, she kept her domicile of origin and merel y gained a new home, not a domicilium necessarium; d. Even assuming that she gained a new domicile after her marriage a nd acquired the right to choose a new one only after her husband died, her acts following her return to the country clearly indicate that she chose Tacloban, he r domicile of origin, as her domicile of choice. Coquilla vs. COMELEC, G.R. No. 151914, July 31, 2002, the SC ruled that he petit ioner had not been a resident of Oras, Eastern Samar, for at least one year prio r to the May 14, 2001 elections. Although Oras was his domicile of origin, petit ioner lost the same when he became a US citizen after enlisting in the US Navy. From then on, until November 10, 2000, when he re-acquired Philippine citizenshi p through repatriation, petitioner was an alien without any right to reside in t he Philippines. In Caasi vs. COMELEC, it was held that the immigration to the US by virtue of th e acquisition of a green card constitutes abandonment of domicile in the Philippin es.

164 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

REPUBLIC ACT 7941 AN ACT PROVIDING FOR THE ELECTION OF PARTY-LIST REPRESENTATIVES THROUGH THE PART Y-LIST SYSTEM, AND APPROPRIATING FUNDS THEREFOR Nature of Party-List System 1. The party-list system is a social tool designed not only to give more law to the great masses of our people who have less in life, but also to enable them t o become veritable lawmakers themselves, empowered to participate directly in th e enactment of laws designed to benefit them. It intends to make the marginal ized and the underrepresented not merely passive recipients of he States benevolence, but active participants in he mainstream of representative democr acy. Thus, allowing all individuals and groups, including those which now domina te district elections, to have the same opportunity to participate in party-list elections would desecrate this lofty objective and mongrelize the social justice mechanisms into an atrocious veneer for traditional politics. 2. Crucial to the resolution of this case is the fundamental social justice pri nciple that those who have less in life should have more in law. The party-list system is one such tool intended to benefit those who have less in life. It give s the great masses of our people genuine hope and genuine power. It is a message to the destitute and the prejudiced, and even those in the underground, that ch ange is possible. It is an invitation for them to come out of their limbo and se ize the opportunity. Clearly, therefore, the Court cannot accept the submissions xxx that the party-l ist system is, without any qualification, open to all. Such position does not on ly weaken the electoral chances of the marginalized and underrepresented; it also prejudic es 165 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos them. It would gut the substance of the party-list system. Instead of generating hope, it would create a mirage. Instead of enabling the marginalized, it would further weaken them and aggravate their marginalization. (Ang Bagong Bay ani-OFW Labor Party vs. COMELEC, G.R. No. 147589, June 26, 2001) Inviolable parameters to determine the winners in Party-List election: 1. The Twenty Percent (20%) Allocationthe combined number of all party-list cong ressmen shall not exceed twenty percent (20%) of the total membership of the Hou

se of Representative, including those elected under the party-list; 2. The Two Percent (2%) Thresholdonly those garnering a minimum of 2% of the tot al valid votes cast for the party-list system are qualified to have a seat in th e HOR; 3. The Three (3) Seat Limiteach qualified party, regardless of the number of vot es it actually obtained, is entitled to a maximum of 3 seats; that is, one (1) q ualifying and two (2) additional seats. 4. The Proportional Representationthe additional seats which a qualified party i s entitled to shall be computed in proportion to their total number of votes. (Vet erans Federation Party vs. COMELEC, G.R. No. 136781, October 6, 2000)

Guidelines for Screening Party-List Participants 1. The political party, sector, organization or coalition must represent the marginalized and underrepresented groups identified in Section 5 of RA 7941. In other wordsit must show in its constitution, by-laws, articles of incorporation, history, platform of government and track recordthat it represent s and seeks to uplift marginalized and underrepresented sectors. Verily, majorit y of its membership should belong to the marginalized and underrepresented. And it must demonstrate that in a conflict of interest, it has chosen or likely to c hoose the interest of such sectors.

2. They must comply with the declared statutory policy of enabling Filipino citi zens belonging to marginalized and underrepresented sectors x x x to be elected to the House of Representatives. In other words, while they are not disqualified

166 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos merely on the ground that they are political parties, they must show, however, t hat they represent the interests of the marginalized and underrepresented. 3. In view of the objections directed against the registration of Ang Buhay Hay aang Yumabong, which is allegedly a religious group, the Court notes the express constitutional provision that the religious sector may not be represented in th e party-list system. The prohibition is on any religious organization registerin g as political party not against a priest running as a candidate.

4. A party or organization must not be disqualified under section 6 of RA 7941 which enumerates the grounds for disqualification. 5. The party or organization must not be an adjunct of, or a project organized or an entity funded or assisted by the government. The party or organization mus t be a group of citizens, organized by citizens and operated by citizens. It mus t be independent of the government. 6. The party must not only comply with the requirements of the law; its nominee s must likewise do so; 7. Not only the candidate party or organization must represent nd underrepresented sectors; so also must its nominees; and marginalized a

8. The nominee must likewise be able to contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a who le. (Ang Bagong BayaniOFW Labor Party vs. COMELEC, G.R. No. 147589, June 26, 2001)

Aklat vs. COMELEC, G.R. No. 162203, April 24, 2004, the COMELEC has the power to promulgate the necessary rules and regulations to enforce and administer electi on laws. This power includes the determination, within the parameters fixed by l aw, of appropriate periods for the accomplishment of certain pre-election acts l ike filing petitions for registration under the party-list system. This is exact ly what the COMELEC did when it issued its Resolution No. 6320 declaring Septe mber 30, 2003, as the deadline for filing petitions for registration under the party-list system.

167 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos ChoosingParty-ListRepresentativesthey are proclaimed by the COMELEC based on the list of names submitted by the respective parties, organizations or coalitions t o the COMELEC according to their ranking in the list. Effect of change of affiliation Any elected party-list representative who changes his political party or sectora l affiliation during his term of office shall forfeit his seat; provided that if he changes his political party or sectoral affiliation within 6 months before a n election, he shall not be eligible for nomination as party-list representative under his new party or organization. Vacancy: In case of vacancy in the seat re served for party-list representatives, the vacancy shall be automatically filled by the next representative from the list of nominees in the order submitted to the COMELEC by the same party, organization or coalition, who shall serve for th

e unexpired term. If the list is exhausted, the party, organization or coalition concerned shall submit additional nominees. Citizens Battle Against Corruption (CIBAC) vs. COMELEC, G.R. No. 172103, April 13, 2007, the correct formula in ascertaining the entitlement to additional seat s of the first party and other qualified party-list groups was clearly explicated in Veterans wherein the multiplier used was the number of additional seats allocated to the first party. LABO DOCTRINEdoctrine of the rejection of the second placernot applicable in Party-List System Apportionment of legislative Districts: (Section 5, paragraphs 3 and 4, Article VI) Each legislative district shall comprise, as far as practicable, contiguous, com pact, and adjacent territory. Each city with a population of at least two hundre d fifty thousand (250,000), or each province, shall have at least one representa tive. This is intended to prevent gerrymandering. Gerrymanderingthe creation of representative districts out of separate por tions of territory in order to favor a candidate. Within three (3) years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section.

168 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos Mariano vs. COMELEC, G.R. No. 118627, March 7, 1995, the Court held that the Con stitution does not preclude Congress from increasing its membership by passing a law other than a general apportionment law. In fact, in Tobias vs. Abalos, 239 SCRA 106, the case involved the division of San Juan and Mandaluyong into two (2) rep resentative districts. With the elevation of Mandaluyong from municipality into a highly urbanized city, both Mandaluyong and San Juan were recognized by RA 767 5 as distinct representative districts. This was challenged on the ground that R A 7675 did not mention any census indicating that San Juan and Mandaluyong had t he minimal requirement of 250,000 inhabitants needed to constitute a district. N either did the challengers, however, give any evidence that the respective popul ations of each of the two political units were less than the number required. He nce the court presumed that Congress had made due consideration of the minimum r equirement. It ruled that reapportionment of legislative districts may be made t hrough a special law. To hold that reapportionment can be made only through a ge neral law would create an inequitable situation where a new city or province cre ated by Congress will be denied legislative representation for an indeterminate

period of time. That intolerable situation would deprive the people in th e city or province a particle of that sovereignty. Sovereignty cannot admit su btraction; it is indivisible. It must be forever whole or it is not sovereignty. In Montejo vs. COMELEC, it was held that while concededly the conversion of Bili ran into a regular province brought about an imbalance in the distribution of vo ters and inhabitants in the 5 districts of Leyte, the issue involves reapportion ment of legislative districts, and Petitioners remedy lies with Congress. This Co urt cannot itself make the reapportionment as petitioner would want. SESSIONS (Section 14, Article VI) 1. Regularconvene once every year. The 4th Monday of July until 30 days before t he start of new regular session (Section 14, Article VI)adjournment is allowed 30 days before the opening of its next regular sessionthis is compulsory;

2. Special a. Called by the President (Sec. 15, Article VI)the President has the power to c all special session; without the call of Presidentimpeachment

169 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos b. Due to a vacancy in the offices of the President and VP at 10:00 am on the 3 rd day after the vacancies (Sec. 10, Article VII) c. Decide on the disability of the President because the majority of all the me mbers of the Cabinet has disputed his assertion that he is able to discharge the powers and duties of his office (Section 11, par. 3, Article VII) d. To revoke or extend the Presidential Proclamation of Martial Law or suspensi on of the Writ of Habeas Corpus (Section 18, article VII) 3. Joint a. Voting separately i. Choosing the President (Section 4, Article VII); ii. Determine the Presidents disability (Section 11, Article VII); iii. Confirming nomination of Vice-President (Section 9, Article VI); iv. Decl aring existence of state of war (Section 23, Article VI); and v. Proposing cons titutional amendments (Section 1, Article XVII). b. Voting jointly i. To revoke or extend proclamation suspending the privilege of writ of habeas

corpus (Section 18, Article VII); and ii. To revoke or extend declaration of martial law (Section 18, Article VII).

4. AdjournmentNeither Chamber during session, without consent of the other, adjo urn for more than 3 days, nor any other place than that in which the two Chamber s shall be sitting (Section 16, par. 5, Article VI) Adjournment Sine Diethe interval between the session of one Congress and that of another; congress must stop the clock at midnight of the last day of session in or der to validly pass a law

170 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos The Senate is a continuing body while the House is not.

DISCIPLINE OF MEMBERS (Section 16, par. 3, Article VI) Each house may punish its members for disorderly behavior and, with concurrence of 2/3 of all its members, suspend (for not more than 60 days) or expel a member . The interpretation of disorderly behavioris the prerogative of the House concerne d and cannot be judicially reviewed. In Osmea vs. Pendatun, 109 Phil 863, the determination of the acts which constitu tes disorderly behavior is within the full discretionary authority of the House concerned, and the Court will not review such determination, the same being a po litical question. Members of Congress may also be suspended by the Sandiganbayan or by the Office of the Ombudsman. (Paredes vs. SAndiganbayan, G. R. No. 118364, August 10, 1995; Santiago vs. Sandiganbayan, G.R. No. 128055, April 18, 2001) The suspension in the Constitution is different from the suspension prescribed i n RA 3019, Anti-Graft and Corrupt Practices Act. The latter is not a penalty but a preliminary preventive measure and is not imposed upon the petitioner for mis behavior as a member of Congress. (Paredes vs. Sandiganbayan, G.R. No. 118364, A ugust 10, 1995)

In Miriam Defensor-Santiago vs. Sandiganbayan, G.R. No. 128055, April 18, 2001, Section 13 of RA 3019 (where it appears to be a ministerial duty of the co urt to issue the order of suspension upon a determination of the validity of the criminal information filed before it) does not state that the public officer sh ould be suspended only in the office where he is alleged to have committed the a cts charged. Furthermore, the order of suspension provided in RA 3019 is distinc t from the power of Congress to discipline its own ranks. Neither does the order of suspension encroach upon the power of Congress. The doctrine of separation o f powers, by itself, is not deemed to have effectively excluded the members of C ongress from RA 3019 or its sanctions.

PARLIAMENTARY IMMUNITY 171 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos A Senator or member of the HOR shall, in all offenses punishable by not more tha n 6 years imprisonment, be privileged from arrest while the Congress is in sessi on. No member shall be questioned nor be held liable in any other place for any speech or debate in the Congress or in any other committee thereof. Two (2) Kinds: a. Freedom from arrest or detentionwhile Congress is in session for off ense punished by not more than 6 years imprisonment (Article 145, RPC; Sec. 11, Art. VI)it is intended to ensure representation of the constituents of the member of the Congress by preventing attempts to keep him from attending its sessions. The present Constitution adheres to the restrictive rule minus the obligation o f Congress to surrender the Member of the House of Representatives to the custod y of law. The requirement that he should be attending sessions or committee meet ings has also been removed. For relatively minor offenses, it is enough that Con gress is in session. (People vs. Jalosjos, 324 SCRA 689, February 20, 2000) in sessionnot day to day; refers to the entire duration of the session from its ope ning until its adjournment. b. Speech and Debate clausenot to be questioned nor held liable in any other pl ace for any speech or debate in Congress or in any committee thereof. (Section 11, Article VI)it enables the legislator to express views bearing upon the public interest without fear of accountability outside the halls of the legi slature for his inability to support his statements with the usual evidence requ ired in the court of justice. in any other placebut not in the Senate or Congress itself Section 16, par. 3, Article VIEach House may determine the rules of its proceedin gs, punish its Members for disorderly behavior, and, with the concurrence of 2/3 of all its members, suspend or expel a Member. A penalty of suspension, when im posed, shall not exceed 60 days.

People vs. Jalosjos, 324 SCRA 689, the immunity from arrest or detention of Sena tors and Members of the HOR arises from a provision of the Constitution. The his tory of the provision shows that the privilege has always been granted in a rest rictive sense. The provision granting an exemption as a special privilege cannot be exte nded 172 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos beyond the ordinary meaning of its term. It may not be extended by intendment, implication or equitable considerations. x x x Because of the broad coverage of felony and breach of the peace, theexemption ap pliedonlytocivilarrests. A congressman like the accused-appellant, convicted und er Title 11 of the Revised Penal Code could not claim parliament immunity from a rrest. He was subject to the same general laws governing all persons still to be tried or whose convictions were pending appeal. The present Constitution adheres to the same restrictive rule minus the obligati on of Congress to surrender the subject Congressman to the custody of law. The r equirement that he should be attending sessions or committee meetings has also b een removed. For relatively minor offenses, it is enough that Congress is in ses sion. Accused-appellant argues that a member of Congress function to attend se ssions is underscored by Section 16 (2), Article VI of the Constitution which st ates that (2) A majority of each House shall constitute a quorum to do business, but a sma ller number may adjourn from day to day and may compel the attendance of absen t Members in such manner, and under such penalties, as such House may pro vide. However, the accused-appellant has not given any reason why he should be exempte d from the operation of Section 11, Article VI. The members of Congress cannot compel absent members to attend sessions if the reason for absence is legitimate a one. The confinement of a Congressman charged with a crime punisha ble by imprisonment of more than 6 years is not merely authorized by law, it has constitutional foundations. When the voters of his district elected the accused-appellant to Congress, they did so with full awareness of the limitations on his freedom of action. They did so with the knowledge that he could achieve only such legislative results which he could accomplish within the confines of prison. To give a more drastic illus tration, if voters elect a person with full knowledge that he is suffering from a terminal illness, they do so knowing that any time, he may no longer serve his full term in office. EXECUTIVE PRIVILEGE; Varieties of: It is the power of the government to withhold information from the public, the c

ourts, and the Congress. (Schwartz) 173 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

It is also the right of the President and high-level executive branch officers t o withhold information from Congress, the courts, and ultimately the public. (Ro zell) 1. State secret privilegeinvoked by Presidents on the ground that the information is of such nature that its disclosure would subvert crucial military or diploma tic objective. 2. Informers privilegeprivilege of the government not to disclose the identity of persons who furnish information in violations of law to officers charged with t he enforcement of the law. 3. Generic privilegefor internal deliberations has been said to attach to intragovernmental documents reflecting advisory opinions, recommendations and delibe rations comprising part of a process by which governmental decisions and policie s are formulated. In determining the validity of a claim of privilege, the question that must be a sked is not only whether the requested information falls within one of the tradi tional privileges, but also whether that privilege should be honored in a given procedural setting. Senate vs. Ermita, G.R. No. 169777, April 20, 2006, executive privileg e, whether asserted against Congress, the courts, or the public, is recognized o nly in relation to certain types of information of a sensitive character. While executive privilege is a constitutional concept, a claim thereof may be valid or not depending on the ground invoked to justify it and the context in which it i s made. Noticeably absent is any recognition that executive officials are exempt from the duty to disclose information by the mere fact of being executive offic ials. Indeed, the extraordinary character of the exemptions indicates that the p resumption inclines heavily against executive secrecy and in favor of disclosure . General rule: DISCLOSURE(policy on transparency) Exceptions: Disclosure would subvert crucial diplomatic or military objective. 1. Supreme Court 2. Executive Secretary 3. Presidentmust invoke executive privilege

174

2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos PROTOCOL DE CLOTUREa final act; an instrument which records the winding up of the proceedings of a diplomatic conference and usually includes a reproduction of t he text of treaties, conventions, recommendations and other acts agreed upon and signed by the plenipotentiaries attending the conference. It is not the treaty itself. It is rather a summary of the proceedings of a protracted conference whi ch may have taken place over several years. It will not require the concurrence of the Senate. The documents contained therein are deemed adopted without need for ratification. (Taada vs. Angara, 272 SCRA 18, 1997)

Commission on Appointments(Section 18, Article VI) The Commission is independent of the two Houses of Congress; its employees are n ot, technically, employees of Congress. It has the power to promulgate its own r ules of proceedings. Powers: Act on all appointments submitted to it within 30 session days of Congre ss from their submission; to act on Presidential appointments; has power to prom ulgate its own rules of proceedings. Composition: Senate Presidentacts as Ex-Officio Chairman 12 Senators and 12 Members of the House of Representatives, elected by each house on the basis of proportional representation from the political parties and orga nizations registered under the party-list system represented therein. Chairman shall not vote except in case of a tie. In Guingona vs. Gonzales, 214 SCRA 789, a political party must have at least two (2) elected senators for every seat in the Commission on Appointments. Thus, wh ere there are two or more political parties represented in the Senate, a politic al party/coalition with a single senator in the Senate cannot constitutionally c laim a seat in the Commission on Appointments. It is not mandatory to elect 12 senators to the Commission; what the Constitution requires is that there must b e at least a majority of the entire membership.

POWERS OF CONGRESS Classification: 175 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos 1. LEGISLATIVE General plenary power;

Specific power of appropriation; Taxation and expropriation; Legislative investigations (Section 21, Art. VI); and Question hour (Section 22, Art. VI). 2. NON-LEGISLATIVEincludes power to: Canvass presidential election (Section 4, Art. VII); Declare the existence of state of war (Section 23, par.1, Art. VI); Exercise delegation of emergency powers; Call special election for President and VP (Section 10, Art. VII); Give concurrence to treaties and amnesties (Sections 19 and 21, Art. VII); Propose constitutional amendments (constituent power) (Sections 1-2, Art. XVII); Confirm certain appointments (Section 9 and 16, Art. VII); Impeach (Section 2, Art. XI); Decide the disability of President because majority of the Cabinet di sputes his assertion that he is able to discharge his duties (Section 11, Art. VII); Revoke or extend proclamation of suspension of privilege of writ of habeas corpu s or declaration of martial law (Section 18, Art. VII); Set the rules regarding the utilization of natural resources (Section 2, Art. XI I). Limitations on the Powers of Congress: 1. SUBSTANTIVE a. Express: i. Bill of Rights (Article III); ii. On Appropriations (Sections 25 and 29 paragraphs 1 and 2, Article VI); iii. On taxation (Sections 28 and 29, paragraph 3, Article VI); iv. On Constitutional appellate jurisdiction of SC (Section 30, Article VI); v. No law granting title of royalty or nobility shall be passed (Section 31, A rticle VI); vi. No specific funds shall be appropriated or paid for use or benefit of any r eligion, sect, etc., except for priests, etc., assigned to AFP, penal institutio ns, etc. (Sections 29, paragraph 2, Article VI). b. Implied: i. Prohibition against irrepealable laws; ii. Non-delegation of powers. 2. PROCEDURAL a. Only one subject, to be stated in the title of the bill (Sec. 26, par. 1, Ar ticle VI); 176 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos b. Three(3)readingsonseparatedays; printed copies of the bill in its final form distributed to members 3 days before its passage, except if President certifies to its immediate enactment to meet a public calamity or emergency; upon its las t reading, no amendment allowed and the vote thereon taken immediately and the y eas and nays entered into the Journal (Section 26, paragraph 2, Article VI; c. Appropriation, revenue and tariff bills shall originate exclusively in the House of

Representatives.

177 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos How a bill becomes a law?

1. Approved and signed by the President; 2. Presidential veto overridden by 2/3 votes of all the members of both Houses; 3. Failure of the President to veto the bill and to return it with his objectio ns to the House where it originated, within 30 days after the date of receipt; 4. A bill calling a special election for President and Vice-President under Sec tion 10, Article VII becomes a law upon third and final reading. Bills exclusively originated in the House of Representative: (APRIL) 1. Appropriation bills; 2. Private bills; 3. Revenue or tariff bills; 4. Bills authorizing Increase in public debts; and 5. Bills of Local application. However, although these bills are required to originate exclusively in the House of Representatives, the Senate may propose or concur with amendments (Sec. 24, Art. VI). Amendments may include amendments by substitution. (Tolentino vs. Secr etary of Finance) What is required to originate exclusively in the House of Representatives is the bill, not the law itself. (Tolentino vs. Secretary of Finance) If the nays prevail, then it is about time that a new bicameral committee be crea ted until the bill will be accepted by both houses. (Bill is not killed.) If yeas prevail, the bill is signed by the Executive Secretary. Two (2) Rules to be observedSection 26, Article VI: 1. One (1) subject, One (1) Title Ruleto prevent RIDERStotally unrelated matters 2. Three (3) Readings on Separate Days Except: when the President certifies to the necessity of the immediate enactment of the bill to meet thepubliccalamityandemergency political questionnot subject t o judicial review Section 26 (par. 1), Article VIevery bill passed by the Congress shall embrace on ly one subject which shall be expressed in the title thereof. 178 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos The objectives of the above provision are: 1. To prevent hodge-podge or log-rolling legislation; 2. To prevent surprise or fraud upon the legislature by means of provisions in bills of which the titles gave no information, and which might therefore be over looked and carelessly and unintentionally adopted; and 3. To fairly appraise the people, through such publication of legislative procee dings as is usually made, of the subjects of legislation that are being consider ed, in order that they may have opportunity of being heard thereon by petition o

r otherwise if they shall so desire. Literal interpretationthe subject or title need not be an index or catalogue. It m ust be germane and related to the subject matter. Agripino A. De Guzman, Jr., et al. vs. COMELEC, G.R. No. 129118, July 19, 2000, Section 26 (1), Article VI is sufficiently complied with where the title is comp rehensive enough to embrace the general objective it seeks to achieve, and if al l the parts of the statute are related and germane to the subject matter embodie d in the title or so long as the same are not inconsistent with or foreign to th e general subject and title. Section 26, par. 2 of Article VINo bill passed by either House shall become a law unless it has passed three readings on separate days, and printed copies thereo f in its final form have been distributed to its Members three days before its p assage, except when the President certifies to the necessity of its immediate en actment to meet a public calamity or emergency. ENROLLED BILL DOCTRINE It is one duly introduced and finally passed by both houses, authenticated by th e proper officer of each, and approved by the President. It is conclusive upon t he courts as regards the tenor of the measure passed by Congress and approved by the President. Once the bill becomes an enrolled bill, it is conclusive upon the court of its d ue enactment. Courts may no longer validly inquire into the bill because of the doctrine of separation of powers. Casco (Phil) Chemical Co. vs. Gimenez, 7 SCRA 347, if a mistake was made in the printing of the bill before it was certified by Congress and approved by the President, the remedy is amendment or corrective legislation, not a judicial dec ree.

179 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos The enrolled bill rule rests on the following considerations: x x x As the President has no authority to approve a bill no passed by Congress, an enrolled act in the custody of the Secretary of State, and having the offici al attestations of the Speaker of the House of Representatives, of the President of the Senate, and of the President of the United States, carries, on its face, a solemn assurance by the legislative and executive departments of the governme nt, charged, respectively, with the duty of enacting and executing the laws, tha t it was passed by the Congress. the respect due to co-equal and independent dep artments requires the judicial department to act upon the assurance, and to acce pt, as having passed Congress, all bills authenticated in the manner stated; lea ving the court to determine, when the question properly arises, whether the Act, so authenticated, is in conformity with the Constitution. (Marshall Field & Co.

vs. Clark, 143 US 649)

BICAMERAL CONFERENCE COMMITTEEthe mechanism for compromising differences betwe en the Senate and the Housecapable of producing unexpected resultbill will have t o be sent back to both houses and subject to votation. A conference committee may deal generally with the subject matter or it may be l imited to resolving the precise differences between the two houses. Even where t he conference committee is not by rule limited in its jurisdiction, legislative custom severely limits the freedom with which new subject matter can be inserted in to the conference bill. But occasionally it produces unexpected results, res ults beyond its mandate. These e4xcursions occurs even where the rules impose st rict limitations on conference committee jurisdiction. This is symptomatic of an authoritarian power of conference committee. (Philippine Judges Association vs. Prado, 227 SCRA 703, November 11, 1993) DOCTRINE OF SHIFTING MAJORITY For each house to pass a bill, only the votes of the majority of those present i n the session, there being a quorum, is required. QuorumA majority of each House, but a smaller number may adjourn from day to day and may compel the attendance of absent members in such manner and under such penalties as such house may determine.

180 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos Avelino vs. Cuenco, 83 Phil 17, the basis in determining the existence of a quor um in the Senate shall be the total number of Senators who are in the country an d within the coercive jurisdiction of the Senate. Arroyo vs. De Venecia, G.R. No. 127255, June 26, 1998, the SC declared that the question of quorum cannot be raised repeatedly, especially when a quorum is obvi ously present for the purpose of delaying the business of the House.

LEGISLATIVE JOURNALregarded as conclusive with respect to matters that are requir ed by the Constitution to be recorded therein. With respect to other matters, in the absence of evidence to the contrary, the journals have also been accorded c onclusive effects. Thus, in US vs. Pons, this Court spoke of the imperatives of public policy for regarding the Journals as public memorials of the most permanen t character, thus: They should be public, because all are required to conform to t hem; they should be permanent, that rights acquired today upon the faith of what has been declared to be law shall not be destroyed tomorrow, or at some remote

period of time, by facts resting only in memory of individuals. (Arroyo vs. De V enecia, 277 SCRA 268) Matters that are required to be entered on the Journal: 1. The yeas and nays on the 3rd and final reading of a bill; 2. The yeas and nays on any question, at the request of 1/5 of the members pres ent; 3. The yeas and nays upon re-passing a bill over the Presidents veto; and 4. The Presidents objection to a bill he had vetoed. (Arroyo vs. De Venecia, 277 SCRA 268)

Journal entry vs. enrolled bill Enrolled bill prevails, except to matters, which under the Constitution, must en tered into the Journal. (Morales vs. Subido, 26 SCRA 150)

Presidents Options: 1. Sign and the bill becomes a law. 2. Vetoes the bill, it does not become a law. 2/3 votes of all its Members (for Congress to override) 3. Inactionthe bill automatically becomes a law within 30 days upon receipt of t he bill from Congress. 181 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

There is no such thing as pocket veto here in the Philippines because inaction by t he President for 30 days never produces a veto even if Congress is in recess. Th e President must still act to veto the bill and communicate his veto to the Cong ress without need of returning the vetoed bill with his veto message. Pocket veto occurs when: a. The President fails to act on the bill; b. The reason he does not return the bill to the Congress is that Congress is n ot in session. PRESIDENTIAL VETO VETOSection 27, Article VI 1. General veto of the Presidentparagraph 1 of Section 27, Article VI 2. Item/Line veto of the Presidentparagraph 2 of Section 27, Article VI The act of the Executive in vetoing the particular provisions is an exercise of a constitutionally vested power. But even as the Constitution grants the power, it also provides limitations to its exercise. The veto power is not absolute. x x x The OSG is correct when it states that the Executive must veto a bill in its ent irety or not at all. He or she cannot act like an editor crossing out specific l ines, provisions, or paragraphs in a bill that he or she dislikes. In the exerci

se of the veto power, it is generally veto, however, when it comes to appropriat ion, revenue or tariff bills, the Administration needs the money to run the mach inery of the government and it can not veto the entire bill even if it may conta in objectionable features. The President is, therefore, compelled to approve int o law the entire bill, including its undesirable parts. It is for this reason th at the Constitution has wisely provided the item veto power to avoid inexpedient r iders being attached to an indispensable appropriation or revenue measures. The Constitution provides that only a particular item or items may be vetoed. Th e power to disapprove any item or items in an appropriation bill does not grant the authority to veto a part of an item and to approve the remaining portion of the same item. (Bengzon vs. Drilon, 208 SCRA 133, April 15, 1992)

182 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos General rule: Selective/partial veto is not allowed. The President may not veto a provision of the bill without vetoing the whole/entire bill itself . Exception: Paragraph 2 of Section 27, Article VIItem/Line veto Only Appropriation, Revenue and Tariff Bills (ART)selective veto is allowed here provided the vetoed bill shall not affect the items which was not vetoed. ItemRefers to the particulars, the details, the distinct and severable parts of t he bill. It is an indivisible sum of money dedicated to a stated purpose. Exceptions to the Exception: 1. DOCTRINE OF INAPPROPRIATE PROVISIONSection 25 (2), Article VI A provision that is constitutionally inappropriate for an appropriation bill may be singled out for veto even if it is not an appropriation or revenue item. It was invoked in the case of Gonzalez vs. Macaraig wherein President Aquino vet oed a provision of the general appropriation bill. The Supreme Court ruled in fa vor of the veto power of the President. Section 25 (2), Article VINo provision or enactment shall be embraced in the general appropriation bill unless it relates specifically to some particular appropriation therein.Items which the President does not object, otherwise it becomes an inappropriate provisionit may be treated as an itemsubject to the item veto of the President. 2. Executive Impoundmentrefusal of the President to spend funds already allocated by Congress for specific purpose. It is the failure to spend or obligate budget authority of any type. This power is derived from Section 38 of the Administrative Code of 1987 on suspension. Appropriation Reserves Section 37 of the Administrative Code authorizes the Budget Secretary to establi

sh reserves against appropriations to provide for contingencies and emergencies which may arise during the year. This is merely expenditure deferral, not suspension, since the agencies concerned can still draw on the reserves if t he fiscal outlook improves. 3. Legislative Vetoa congressional veto is a means whereby the legislature can b lock or modify administrative action taken under a statute. It is a form of

183 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos legislative control in the implementation of particular executive action. The fo rm may either be: a. Negativesubjecting the executive action to disapproval by Congress; or b. Af firmativerequiring approval of the executive action by Congress. A congressional veto is subject to serious questions involving the separation of powers. Local Chief Executives have veto power except the Punong Barangay. POWER OF APPROPRIATION The spending power, called the power of purse belongs to the Congress, subject only to the veto power of the President. it carries with it a power to s pecify the project or activity to be funded under the appropriation law. Appropriations LawA statute, the primary and specific purpose of which is to authorize release of public funds from the treasury. The existence of appropriations and the availability of funds are indispensable pre-requisites to or conditions sine qua non for the execution of government con tracts. (COMELEC vs. Judge Quijano Padilla and Photokina Marketing Corp., G.R. No. 151992, September 18, 2000) Classification: 1. General Appropriation Lawpassed annually, intended to provide for the financial operations of the entire government during one fiscal period. 2. Special Appropriation Lawdesigned for a specific purpose. Implied (Extra-Constitutional) Limitations on Appropriation Power: 1. Must specify public purpose; and 2. Sum authorized for release must be determinate, or at least determinable. Constitutional Limitations on Special Appropriation Measures: 1. Must specify public purpose for which the sum was intended; and 2. Must be supported by funds actually available as certified by the

National Treasurer or to be raised by corresponding revenue proposal included therein. Constitutional Rules on General Appropriation Laws: Section 25, Article VI 184 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos 1. Congress may not increase appropriations recommended by the President for op eration of the Governmentto prevent big budget deficits; 2. Form, content and manner of preparation of budget shall be provided by law; 3. No provision or enactment shall be embraced unless it relates specifically t o some particular appropriations therein; 4. Procedure for approving appropriations for Congress shall be the same as tha t of other departmentsto prevent sub rosa appropriations by Congress; 5. Prohibition against transfer of appropriations (Doctrine of Augme ntation), however: a. President; b. Senate President; c. Speaker of the House; d. Chief Justice; and e. Heads of Constitutional Commissions may, by law, be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective ap propriations. 6. Prohibition against appropriations for sectarian benefit; and 7. Automatic re-appropriation. POWER OF TAXATION Limitations: 1. Rule of taxation shall be uniform and equitable and Congress shall evolve a progressive system of taxation. 2. Charitable institutions, etc., and all lands, buildings and improvem ents actually, directly and exclusively used for religious, charitable or educational purposes shall be exempt from taxation. 3. All revenues and assets of non-stock, non-profit educational institutions us ed actually, directly and exclusively for educational purposes shall be exempt f rom taxes and duties. 4. Law granting tax exemption shall be passed only with the concurrence of a ma jority of all the members of Congress. ELECTORAL TRIBUNAL Section 17, Article VSenate and House of Representativessole jud ge of all contest relating to the election returns and qualifications of their r espective Members No appeal lies. Appeal is merely statutory. The remedy is Rule 65, Certiorari (Sp ecial Civil Action) based on Grave Abuse of Discretion. 185 2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

HRETalthough attached to the Congress, has separate and distinct personality. It was created as a non-partisan court. It must be independent of Congress and devo id of partisan influence and consideration. Members of HRET, once appointed ther eto, they shall be accorded thereto of security of tenure to ensure their impart iality and independence. Bondoc vs. Pineda, 201 SCRA 792, Disloyalty to the party and Breach of party discip line are not valid grounds for the expulsion of a member. HRET members enjoy secu rity of tenure; their membership may not be terminated except for a just cause s uch as the expiration of congressional term, death, resignation from the poli tical party, formal affiliation with another political party, or removal for ot her valid causes. Pimentel vs. HRET, G.R. No. 141489, November 29, 2002, the SC said that even ass uming that the party-list representatives comprise a sufficient number and have agreed to designate common nominees to the HRET and Commission on Appointments, their primary recourse clearly rests with the House of Repre sentatives and not with the Court. Only if the House fails to comply with the di rective of the Constitution on proportional representation of political parties in the HRET and Commission on Appointments can the party-list representatives se ek recourse from this Court through judicial review. Under the doctrine of prima ry administrative jurisdiction, prior recourse to the House is necessary before the petitioners may bring the case to Court. Imelda Romualdez-Marcos vs. COMELEC, 248 SCRA 300As to the HRETs supposed assumpti on of jurisdiction over the issue of petitioners qualifications after the May 8, 1995 elections, suffice it to say that HRETs jurisdiction as the sole judge of al l contests relating to the elections, returns and qualifications of members of C ongress begins only after a candidate has become a member of the House of Repres entatives (Article VI, Section 17 1987 Constitution). Petitioner not being a mem ber of the House of Representatives, it is obvious that HRET at this point has n o jurisdiction over the question. COMELEC is not ousted of jurisdiction. See als o Section 6 of RA 6646. Guerrero vs. COMELEC, 336 SCRA 458 (July 26, 2000) While the Congress is vested w ith the power to declare valid or invalid certificate of candidacy, its refusal to exercise the power following the proclamation and assumption of Faria s is a recognition of the jurisdictional boundaries separating the COMELEC and the HRET. Under Article VI, Section 17 of the Constitution, the HRET has the sole and excl usive 186 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos jurisdiction over all contests relative to the elections, returns and qualificat

ions of members of the House of Representatives. Thus, once a winning candidate has been proclaimed, taken his oath, and assumed office as a member of the HOR, COMELECs jurisdiction over election contests relating to his elections, returns a nd qualifications ends, and the HRETs own jurisdiction begins. Thus, the COMELECs decision to discontinue exercising jurisdiction over the case is justifia ble, in deference to the HRETs own jurisdiction and functions. Appeal from SET or HRET Decision The Constitution mandates that the HRET and the SET shall each, respectively, be the sole judge of all contest relating to the elections, returns and qualificat ions of their respective members. The Court has stressed that so long as the Constitution grants the HRET the powe r to be the sole judge of all contests relating to the elections, returns and qu alifications of members of the House of Representatives, any final action taken by the HRET on a matter within its jurisdiction shall, as a rule, not be reviewe d by the Supreme Court. The power granted to the Electoral Tribunal excl udes the exercise of any authority on the part of this Court that would in a ny wise restricts it or curtail it or even affect the same. In Robles vs. HRET, the Court has explained that while the judgments of the Trib unal are beyond judicial interference, the Court may do so, however, but only in the exercise of the SCs so-called extraordinary jurisdiction upon determination t hat the Tribunals decision or resolution was rendered without or in excess of its jurisdiction, or with grave abuse of discretion, or upon a clear showing of such arbitrary and improvident use by the Tribunal of its power as constitute s a denial of due process of law, or upon demonstration of a very clear unmitiga ted error, manifestly constituting such grave abuse of discretion that there has to be remedy for such abuse. The Court does not venture into the perilous area of correcting perceived errors of independent branches of government; it comes in only when it has to vindicat e a denial of due process or correct an abuse of discretion so grave or glaring that no less than the Constitution itself calls for remedial action. (Libanan vs . HRET, 283 SCRA 520)

187 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos Section 21, Article VIThe Senate or the HOR or any of its respective committees m ay conduct inquiries in aid of legislation in accordance with its duly published rules and procedure. The right of persons appearing in or affected by such inqu iries shall be respected. Constitutional limitation on inquiries in aid of legislation POWER OF LEGISLATIVE INVESTIGATION(Section 21, Article VI)

Power to conduct inquiries in aid of legislationInvestigatorial Powernot a bsolute; subject judicial review in view of the expanded power of the court to d etermine whether there has been grave abuse of discretion amounting to lack or e xcess of jurisdiction. Limitations: 1. The inquiry must be in aid of legislation; 2. It must be in accordance with duly published rules and procedure of the Hous e concerned; and 3. The right of persons appearing in or affected by such inquiries s hall be respected. Remedy: invoke the Right against Self-Incrimination Section 21 (Legislative investigation) vs. Section 22(Question Hour) 1. Inquiry in aid of legislationthey may not validly refuse to appear: It will impair the work of Congress It will violate the rights of the people to information on matters of public conc ern (Section 7, Article III) 2. Members of the executive cabinet in view of EO 464 These two (2) sections should not be considered as pertaining to the same power o f Congress. One specifically relates to the power to conduct inquiry in aid of l egislation, the aim of which is to elicit information that may be used for legis lation, while the other pertains to the power to conduct a question hour, the ob jective of which is to obtain information in pursuit of Congress oversight function. Section 21 (Legislative investigation) Section 22(Question Hour)

188 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos 1. Any person may appear 2. 3. 4. 1. The Committees conduct the investigation The subject matter is any matter for the purpose of legislation Appearance is mandatory Only department head may appear

2. The entire body conduct the investigation 3. The subject matters are matters related to the department only 4. Appearance is Discretionary Senate vs. Ermita, G.R. No., 169777, April 20, 2006, while attendance to Congres sional hearings is discretionary on the part of the department heads during quest ion hour, such is not in the case in inquiries in aid of legislation, except upon a valid and express claim of executive privilege. The principle of separation of powers is the reason why executive officials may not be compelled to attend hearings when Congress exercises its oversight functi ons. Though, this is not the case when the Congress exercises its power of inqui ry in aid of legislation. Sections 21 and 22 of Article VI, therefore, while clo sely related and complementary to each other, should not be considered as pertai ning to the same power of Congress. one specifically relates to the power to con duct an inquiry in aid of legislation, the aim of which is to elicit information that may be used for legislation, while the other pertains to the power to cond uct a question hour, the object of which is to obtain information in pursuit of Congress oversight function. Sabio vs. Sen. Gordon, G.R. No. 174340, October 17, 2006, the Congress power of i nquiry, being broad, encompasses everything that concerns the administration of existing laws as well as proposed or possibly needed statutes. It even extends t o government agencies created by Congress and officers whose positions are withi n the power of Congress to regulate or even abolish. A mere provision of law can not pose a limitation to the broad power of Congress, in the absence of any cons titutional basis.

QUESTION HOURintegral in a parliamentary government; the heads of departments may , upon their own initiative, with the consent of the President, or upon the requ est of either house, as the rules of each house shall provide, appear before and be heard by such house on any matter pertaining to their departments. Written q uestions shall be submitted to the President of the Senate or the Speaker of the House at least 3 days before their scheduled appearance. Interpolations shall not be limited to written

189 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos questions, but may cover matters related thereto. When the scrutiny of the State or the public interest so requires, the appearance shall be conducted in execut ive session

Arnault vs. Nazareno, 87 Phil. 29the inquiry, to be within the jurisdiction of th e legislative body making it, must be material or necessary to the exercise of a power in it vested by the Constitution, such as to legislate or to expel a memb

er. (The power to conduct Inquiry is integral and implied of legislative power)

Standard Chartered Bank vs. Senate Committee on Banks, G.R. No. 167173, December 27, 2007, the mere filing of a criminal or an administrative complaint before a court or a quasi-judicial body should not automatically bar the conduct of legi slative investigation. Otherwise, it would be extremely easy to subvert any inte nded inquiry by Congress through the convenient ploy of instituting a cr iminal or administrative complaint.

Congressional Oversight Functions (Makalintal vs. COMELEC, G.R. No. 157013, July 10, 2003) It embraces all activities undertaken by Congress to enhance its understanding o f and influence over the implementation of legislation it has enacted. Clearly, oversight concerns post-enactment measures undertaken by Congress: a. To monitor bureaucratic compliance with program objectives; b. To determine whether agencies are properly administered; c. To eliminate executive waste and dishonesty; d. To prevent executive usurpation of authority; and e. To assess executive conformity with the congressional perception of public i nterest. The power of oversight has been held to be intrinsic in the grant of legislative power itself and integral to the checks and balances inherent in a democratic s ystem of government. The oversight power has also been used to ensure the accountability o f regulatory commissions like the SEC. Unlike other ordinary administrative agen cies, these bodies are independent from the executive branch and are outside the executive department in the discharge of their functions. 190 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Categories of Congressional Oversight Functions: a. Scrutinyimplies a lesser intensity and continuity of attention to administrat ive operations. Its primary purpose is to determine economy and efficiency of th e operation of government activities. In the exercise of legislative sc rutiny, Congress may request information and report from the other branches of g overnment. It can give recommendations or pass resolutions for consideration of the agency involved. It is based primarily on the power of appropriation of Congress. xxx But legislative scrutiny does not end in budget hearings. Congress can ask th e heads of departments to appear before and be heard by either the House of Cong ress on any matter pertaining to their department.

Likewise, Congress exercises legislative scrutiny thru its power of confirmation to find out whether the nominee possesses the necessary qualifications, integri ty and probity required of all public servants. b. Congressional investigationinvolves a more intense digging of facts. It is re cognized under Section 21, Article VI. Even in the absence of constitutional man date, it has been held to be an essential and appropriate auxiliary to the legis lative functions. c. Legislative supervisionit connotes a continuing and informed awareness on the part of congressional committee regarding executive operations in a given admin istrative area. It allows Congress to scrutinize the exercise of delegated law-m aking authority, and permits Congress to retain part of that delegated authority.

Congress exercises supervision over the executive agencies through its veto powe r. It typically utilizes veto provisions when granting the President or an execu tive agency the power to promulgate regulations with the force of law. These pro visions require the President or an agency to present the proposed regulations t o Congress, which retains a right to approve or disapprove any regulation before i t takes effect. Such legislative veto provisions usually provide that a proposed regulation will become a law after the expiration of a certain period of time, only if Congress does not affirmatively disapprove of the regulation in the mean time. Less frequently, the statute provides that a proposed regulation will become a law if Congress affirmatively approves it.

191 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

POWER OF CONCURRENCE The Constitution requires the concurrence of the Congress to an amnesty and to a treaty.

THE WAR POWER The Congress, by a vote of 2/3 of both houses in joint session assembled, voting separately, shall have the sole power to declare the existence of a state of wa r. LAW-MAKING POWERS OF CONGRESS Pertinently, the power to make lawslegislative poweris vested in Congress. Congres s may not escape its duties and responsibilities by delegating that power to any other body or authority. Any attempt to abdicate the power is unconstitutional and void, on the principle of delegari potesta non potest delegaridelegated power may not be delegated. The rule which forbids the delegation of legislative powe r, however, is not absolute and inflexible. It admits of exceptions. An exceptio n sanctioned by immemorial practice permits the legislative body to delegate its licensing power to certain persons, municipal corporations, towns, boards, coun cils, commissions, commissioners, auditors, bureaus and directors. Such licensin g power includes the power to promulgate necessary rules and regulations. (Chave z vs. Romulo, G.R. No. 157036, June 9, 2004)

Article VII EXECUTIVE DEPARTMENT EXECUTIVE POWER It is the legal and political functions of the President involving the exercise of discretion. It is vested in the President of the Philippines. It is the power to enforce and administer laws. 192 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

The executive power shall be vested in the President of the Philippines. (Sectio n 1, Article VII) In National Electrification Administration vs. CA, G.R. No. 1434 81, February 15, 2002, the President is vested with the power to execute, admini ster, and carry out laws into practical operation. Executive power, then, is the power of carrying out the laws into practical operation and enforcing their due observance. The President may not veto a law enacted thirty-five (35) years before his or he

r term of office. Neither may the President set aside or reverse a final and exe cutory judgment of the Supreme Court through the exercise of veto power. (Bengzo n vs. Drilon, 208 SCRA 133, April 15, 1992)

PRESIDENT VICE-PRESIDENT Q U A L I F IC A T I O NS 1. Natural-born citizen; 2. Registered voter; 3. Able to read and write; 4. At least 40 years of age on the day of election; and 5. Resident of the Philippines for at least 10 years immediately prec eding the election. T E R M O F O F F I C E Six (6) years D I S Q U A L I F I C A T I O N S 1. Not eligible for any re-election; 2. No person who has succeeded as President and has served as such for more tha n 4 years shall be qualified for election to the same office at any time (Sec. 4 , Art. VII); 1. Shall not serve for more than two (2) consecutive terms (Sec. 4, Art. VII) General Disqualifications* a. One who has been declared incompetent or insane by competent author ity; b. One who has been sentenced by final judgment for: vi. Subversion; vii. Insurrection; viii. Rebellion; ix. Any offense for which he has been sentenced to a penalty of not more than 1 8 months; or 193 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos x. A crime involving moral turpitude, unless given plenary pardon or g ranted amnesty (Section 12, BP 881Omnibus Election Code) INHIBITIONS AND PROHIBITIONS 1. Shall not receive any other emolument from the government or any other sourc e (Section 6, Article VII); 2. Shall not hold any other office or employment unless otherwise provided in t he Constitution; 3. Shall not practice any other profession; 4. Shall not participate in any business; 5. Shall not be financially interested in any contract with, or in any franchis e, or special privilege granted by the Government, including GOCCs; 6. Shall avoid conflict of interest in conduct of office; 7. Shall avoid nepotism. (Section 13, Article VII)

P R I V I L E G E S 1. Official residence; 2. Salary is determined by law and not to be decreased during his tenure (Secti on 6, Article VII); 3. Immunity from suit for official acts. 1. Salary shall not be decreased during his tenure; 2. No need for Commission on Appointment confirmation for Cabinet post ( Section 3, Article VII) CANVASSING BOARD Congress (Senate and House of Representatives); in case of tie, Congress by majo rity vote shall select. ELECTORAL TRIBUNAL Supreme Court (en banc) R E M O V A L Impeachment only

ELECTION (Section 4, Article VII) Unless otherwise provided by law, the regular election for President and Vice-President shall be held on the second Monday of May. Even after Congress has adjourned its regular session, it may continue to perform this constitutional duty of canvassing the presidential and vice-presidential election results without need of any call for special session by the President. The joint public session of both Houses of Congress convened by express directive of Section 4, Article VII of the Constitution to canvass th e votes for and proclaim the newly-elected President and Vice-President has n ot, and cannot, adjourn sine die until it has accomplished its constitutionally mandated tasks. For only when a board of canva ssers 194 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos has completed its functions it is rendered functus officio. (Pimentel, Jr. vs. Joint Committee of Congress to Canvass the votes cast for President and VP, G.R. No. 163783, June 22, 2004) There is no constitutional or statutory basis for COMELEC to undertake a separat e and an unofficial tabulation of results, whether manually or electronically. By conducting such unofficial tabulation, the COMELEC descends to the level of a priv ate organization, spending public funds for the purpose. This not only violates the exclusive prerogative of NAMFREL to conduct an unofficial count, but also tain ts the integrity of the envelopes containing the election returns and the electi on returns themselves. Thus, if the COMELEC is proscribed from conducting an off icial canvass of the votes cast for the President and VP, the COMELEC is, with m ore reason, prohibited from making an unofficial canvass of said votes. (Brillante s vs. COMELEC, G.R. No. 163193, June 15, 2004)

Immunity from suit: After his tenure, the President cannot invoke immunity from suit for civil damag es arising out of acts done by him while he was President which were not perform ed in the exercise of his official duties. (Estrada vs. Desierto, G.R. Nos. 1467 10-15, March 2001) Rules on Succession: a. Vacancy at the beginning of the term i. Death or permanent disability of the President-elect: VP-elect shall become President ii. President-elect fails to qualify: VP-elect shall act as President until the President-elect shall have qualified iii. President shall not have been chosen: VP-elect shall act as President unti l a President shall have been chosen and qualified. iv. No President and VP chosen nor shall have qualified, or both shall died or become permanently disabled: The President of the Senate, or in case of his disa bility, the Speaker of the House of Representatives, shall act as President unti l a President or a VP shall have been chosen and qualified. In the event of inab ility of the officials mentioned, Congress shall, by law, provide for th e manner in which one who is to act as President shall be selected until a President or VP shall have qualified.

195 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos At 10 oclock in the morning of the 3rd day after the vacancy occurs, Congress sha ll convene without need of a call, and within 7 days enact a law calling for a s pecial election to elect a President and a VP to be held not earlier than 45 nor later than 60 days from the time of such call. The bill shall be deemed certifi ed and shall become a law upon its approval on 3rd reading by Con gress. The convening of the Congress cannot be suspended nor the special electio n postponed. No special election shall be called if the vacancy occurs within 18 months before the date of the next presidential election. b. Vacancy during the term i. Death, permanent disability, removal from office, or resignation of the President: VP shall become the President Estrada vs. Arroyo, G.R. No. 146738, March 2, 2001, the SC declared that the res ignation of President Estrada could not be doubted as confirmed by his leaving M alacaan Palace. In the press release containing his final statement, 1. He acknowledged the oath-taking of the respondent as President; 2. He emphasized he was leaving the Palace for the sake of peace and in order t o begin the healing process (he did not say that he was leaving due to any kind

of disability and that he was going to reassume the Presidency as soon as the di sability disappears); 3. He expressed his gratitude to the people for the opportunity to serve them a s President (without doubt referring to the past opportunity); 4. He assured that he will not shirk from any future challenge that may come in the same service of the country; 5. He called on his supporters to join him in promotion of a constructive natio nal spirit of reconciliation and solidarity. The Court declared that the elements of a valid resignation are: 1. Intent to resign; 2. Act of relinquishment. Both were present when President Estrada left the Palace. Intent to resignmust be accompanied by act of relinquishmentact or omission before , during and after January 20, 2001.

196 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos Totality of prior contemporaneous posterior facts and circumstantial evidence bea ring material relevant issuesPresident Estrada is deemed to have resigned construc tive resignation Resignationmay be written, oral, express, or implied, for as long as it is clear it must be given legal effect. Vacancy in the office of the VP: Whenever there is vacancy in the Office of the VP during the term for which he w as elected, the President shall nominate a VP from among the Members of the Sena te and the HOR who shall assume office upon confirmation by a majority vote of a ll the Members of both Houses of the Congress, voting separately. (Section 9, Ar ticle VII) Powers of the President: 1. Executive power (Section 1, Article VII) 2. Appointing power (Section 16, Article VII) 3. Control power (Section 17, Article VII) Section 4, Article XPower of general supervision over local governments 4. Calling-out power, power to place the Philippines under martial law and powe r to suspend the privilege of the writ of habeas corpus (Section 18, Article VII ) 5. Pardoning power, reprieves, commutations, amnesty, remit fines and forfeitur es (Section 19, Article VII) 6. Borrowing power (Section 20, Article VII)

7. 8. 9. 10. 11. 12. 13. 14. 15.

Diplomatic/Treaty-making power (Section 21, Article VII) Budgetary power (Section 22, Article VII) Informing powerState of the Nation Address (Section 23, Article VII) Veto power (Article VI) Power of general supervision over local governments (Section 4, Article X) Power to call special session (Section 15, Article VI) Unstated Residual Powernot found in the Constitution Power to Reorganize the Office of the President (Administrative Code) Power of Impoundment

APPOINTING POWERcarries with it the Removal Power Appointmentis the selection, by the authority vested with the power, of an indivi dual who is to exercise the functions of a given office.

197 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos Designationsimply means imposition of additional duties on a person already in th e public service. Binamira vs. Garrucho, 188 SCRA 154, when a person is merely designated and not appointed, the implication is that he shall hold office in a temporary capacity and may be replaced at will of the appointing authority. In this sense, a design ation is considered only an acting or temporary appointment which does not confe r security of tenure on the person named. Appointing power is executive in nature. It is vested in the President. The powe r carries with it the power to remove except in some cases like Justices of the Supreme Court, the President appoints them but he cannot remove them. They can o nly be removed through impeachment. Officers to be appointed by the President that require the confirmation of Commi ssion on Appointments: (the list is exclusive) 1. Heads of the executive department Except: Vice-Presidentmay be appointed as a Member of the Cabinet. Such appointme nt requires no confirmation. (Section 3, Article VII) 2. Ambassadors, other public ministers and consuls 3. Officers of the armed forces from the rank of colonel or naval captain 4. Other officers whose appointments are vested in him in the Constitution Example: JBC, Constitutional Commissions 5. All other officers of the government whose appointments are not ot herwise provided by law 6. Those whom he may be authorized by law to appoint. Sarmiento vs. Mison, 156 SCRA 549, not all appointments made by the President ne ed CA confirmation. Only those enumerated in paragraph 1 of Section 16, Article VII need confirmation of the Commission on Appointments. The appointment of Salv ador Mison as Commissioner of Customs needs no confirmation by the CA, because t he Commissioner of Customs is not among the officers mentioned in the 1st parag

raph of Section 16, Article VII. Officers of the armed forces from the rank of colonel or naval captainrefers to m ilitary officers alone PNP is now under the DILG (civilian in character, national in scope)no longer part of the AFP, therefore, no need for CA confirmation 198 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Soriano vs. Lista, G.R. No. 153881, March 24, 2003, the Philippine Coast Guard ( PCG) is no longer part of the Philippine Navy or the AFP but is not under the DO TC, a civilian agency, the promotion and appointment of respondent officers of t he PCG will not require confirmation by the CA. Calderon vs. Carale, 208 SCRA 254, Article 215 of the Labor Code as amended by R A 6715, insofar as it requires the confirmation by the CA of the appointment of th e NLRC Chairman and commissioners, is unconstitutional because it violates Secti on 16 of Article VII. The Congress, when they enacted the law, added to the exclusive list another category of officers to be appointed by the President tha t need the confirmation of the CA. Manalo vs. Sistoza, 312 SCRA 239a law was enacted creating the PNP, RA 6795. It p rovides that the Director, Deputy Director General, and other top officials of t he PNP shall be confirmed by the Commission on Appointments. The SC declared it as unconstitutional. In the above two cases, Congress cannot add/remove anything from the list of off icers to be appointed by the President that require confirmation of the CA. The list is exclusive. The Congress cannot add or remove anything by a mere legislat ive act. Officials subject to the Appointment of the President: A. With the confirmation by the Commission on Appointments 1. Heads of the executive department 2. Ambassadors, other public ministers and consuls 3. Officers of the armed forces from the rank of colonel or naval captain 4. Other officers whose appointments are vested in him in the Constitution B. Prior recommendation or nomination by the Judicial and Bar Council (JBC) 1. Members of the Supreme Court and all lower courts 2. Ombudsman and hid 5 Deputies C. Appointment of VP as Member of the Cabinet D. Appointment solely by the President 1. Those vested by the Constitution on the President alone 2. Those whose appointments are not otherwise provided for by law 3. Those who may be authorized by law to appoint;

4. Those other officers lower in rank whose appointment is vested by law in the President alone 199 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Appointing Procedure: 1. Nomination by the President; 2. Confirmation by the Commission on Appointments; 3. Issuance of commission; and 4. Acceptance by appointee. Deemed complete upon acceptance. Pending such accept ance, which is optional to the appointee, the appointment may still be validly w ithdrawn. Appointment to a public office cannot be forced upon citizen except fo r purposes of defense of the State under Section 4, Article II of the Constituti on, as an exception to the rule against involuntary servitude. Classifications: 1. Permanentthose extended to persons possessing the requisite eligibility and a re thus protected by the constitutional guarantee of security of tenure. 2. Temporarythose given to persons without such eligibility, revocable at will a nd without necessity of just cause or a valid investigation, ma de on the understanding that the appointing power has not yet decided on a p ermanent appointee and that the temporary appointee may be replaced at any time a permanent choice is made. Temporary appointment and Designation are not subject to confirmation by the Comm ission on Appointments. Such confirmation, if given erroneously, will not make t he incumbent permanent appointee. (Valencia vs. Peralta, 8 SCRA 692) 3. RegularAppointment by the President when Congress is in session. It takes eff ect only after confirmation by the CA, and once approved, continues until the en d of the term of the appointee. 4. Ad Interim(2nd paragraph of Section 16, Article VII)Appointment by the Pre sident when Congress is not in session. It takes effect immediately b ut ceases to be valid if disapproved by the CA or upon the next adjournment of C ongress. It is deemed by-passed through inaction. It is intended to prevent inte rruptions in vital government services that would otherwise result from the prol onged vacancies in government offices. It is a permanent appointment because it takes effect immediately and can no lon ger be withdrawn by the President once the appointee has qualified into office. The fact that it is subject to confirmation by the Commission on Appointments does not alter its permanent character. The Constitution i tself 200 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R

review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos makes an ad interim appointment permanent in character by making it effective un til disapproved by the CA or until the next adjournment of Congress. a. Recessone made while the Congress is not in session, before confirmation by th e Commission on Appointment; immediately effective; and ceases to be valid if di sapproved or bypassed by CA upon the next adjournment of Congress; b. Midnightmade by the President before his term expires, whether or not it is c onfirmed by the CA

Ad interim appointment disapproved by the Commission on Appointmentscan no longer be extended a new appointment. The disapproval is a final decision of the Commis sion on Appointments in the exercise of its checking power on the appointing pow er of the President. The disapproval is a decision on the merits, being a r efusal by the CA to give its consent after deliberating on the qualifica tions of the appointee. Since the Constitution does not provide for any appe al from such decision, the disapproval is final and binding on the appoi ntee as well as on the appointing power. In this instance, the President can no longer renew the appointment not because of the constitutional prohibition on ap pointment, but because of a final decision by the CA to withhold its consent to the appointment. In the case of Matibag vs. Benipayo, 380 SCRA 49, ad interim means in the meantim e or for the time being. An ad interim appointment means a permanent appointment ma de by the President in the meantime that Congress is in recess. It does not mean a temporary appointment that can be withdrawn or revoked at any time. An ad int erim appointee who has qualified and assumed office becomes at that moment a gov ernment employee and therefore part of the civil service. He enjoys the constitu tional protection that he cannot be suspended or removed except for causes provi ded by law. The withdrawal or revocation of an ad interim appointment is possibl e only if it is communicated to the appointee before the moment he qualifies, an d any withdrawal or revocation thereafter is tantamount to removal from office. Once an appointee has qualified, he acquires a legal right to the office which i s protected not only by statute but also by the Constitution. He can only be removed for cause, after notice and hearing, consistent with the requirements of due process.

201 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos Ad Interim Takes effect immediately regular

Appointee assumes office immediately and later on the appointment should be confi

rmed by the CA Made while Congress is not Does not take effect immediately in session

Appointee assumes office only after confirmation by the CA

Made when Congress is in session The distinction lies in the effectivity of the appointment Ad interim appointee by-passed by the CA is no longer subject to reappointment. He is deemed to have vacated the office. Case of First Impression 2nd issue in the case of Matibag vs. Benipayowhether ad interim appointees by-pas sed by Commission on Appointments may be subject to re-appointment? The SC held that an ad interim appointment that is by-passed by the Commission o n Appointments because of lack of time or failure of the latter to organize is a nother matter. A by-passed appointment is one that has not been finally acted upon on the merits by the CA at the close of the session of Congres s. There is no final decision by the Commission on Appointments to give or withh old its consent to the appointment as required by the Constitution. Absent such decision, the President is free to renew the ad interim appointment of a by- pas sed appointee. This is recognized in Section 17 of the Rules of the Commission on Appointments. Hence, under the Rules, a by-passed appointment can be considered again if the President renews the appointment. The ad interim appointments and subsequent renewals of appointments of Benipayo, Borra and Tuason do not violate the prohibition on reappointments because there were no previous appointments that were confirmed by the Commission on Appointm ents. A reappointment presupposes a previous confirmed appointment. The same ad interim appointments and renewal of appointments will also not breach the 7-year term limit because all the appointments and renewals of appointments of Benipay o, Borra and Tuason are for a fixed term expiring on February 2, 2008. Any delay in their confirmation will not extend the expiry date of their terms of office. Consequently, there is no danger whatsoever that the renewal of the ad interim appointments of these 202 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos three respondents will result in any of the evils intended to be exorcised by th e twin prohibition of the Constitution. The continuing renewal of the ad interim appointment of these three respondents for so long as their term of office expi res on February 2, 2008 does not violate the prohibition on reappointm ents in Section 1 (2), Article IX-C of the Constitution. Four (4) Situations where Section 1 (2), Article IX-C will apply:

Section 1 (2), Article IX-C of the Constitution provides: The Chairman and the C ommissioners shall be appointed by the President with the consent of the Commiss ion on Appointments for a term of seven years without reappointment. Of those fi rst appointed, three Members shall hold office for seven years, two Members for five years, and the last Member for three years, without reappointment. Appointm ent to any vacancy shall be only for the unexpired term of the predecessor. In n o case shall any Member be appointed or designated in a temporary or acting capa city. 1. Where an ad interim appointee to the COMELEC, after confirmation by the CA, serves his full 7-year term. Such person cannot be reappointed to the COMELEC, w hether as a member or as a chairman, because he will then be actually serving mo re than 7 years. 2. Where the appointee, after confirmation, serves a part of his term and then resigns before his 7-year term of office ends. Such person cannot be reappointed . Whether as a member or as a chairman, to a vacancy arising from retirement bec ause a reappointment will result in the appointee also serving more than seven y ears. 3. Where the appointee is confirmed to serve the unexpired term of so meone who died or resigned, and the appointee completes the unexpired term. Such person cannot be reappointed, whether as member or chair, to a vacancy arising from retirement because a reappointment will result in the appointee also servin g more than seven years. 4. Where the appointee has previously served a term less than seven y ears, and a vacancy arises from death or resignation. Even if it will not result in his serving more than 7 years, a reappointment of such person to serve an un expired term is also prohibited because his situation will be similar to those a ppointed under the second sentence of Section 1 (2), Article IX-C of the Constit ution. This provision refers to the 1st appointees under the Constitution, whos e terms of office are less than 7 years, but are barred from ever being reappointed under any situation. 203 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

In Pimentel, Jr. vs. Ermita, G.R. No. 164798, October 13, 2005, Congress commenc ed their regular session on July 26, 2004, the Commission on Appointments was co nstituted on August 25, 2004. Meanwhile, President Arroyo issued appointments to respondents as acting secretaries of their respective departments. Respondent s took their oath and assume duties as acting secretaries. Congress adjou rned on September 22, 2004. On September 23, 2004, President Arroyo issued ad interim appointments to respondents as secr etaries of the departments to which they were previously appointed in an acting capacity. A petition was filed to declare unconstitutional the appointments issu ed by the President to the respondents as acting secretaries of their respective departments without the consent of the Commission on Appointments whi le Congress is in session. The SC held that as a rule, the writ of prohibition w ill not lie to enjoin acts already done. However, an exception to the rule on mo otness, courts will decide a question otherwise moot if it is capable of repetition yet evading review. In the present case, the mootness of the pet ition does not bar its resolution. The question of constitutionality of the Pres idents appointment of department secretaries in an acting capacity while Congress is in session will arise in every such appointment. The office of a

department secretary may become vacant while Congress is in session. Since a dep artment secretary is an alter ego of the President, the acting appointee to the office must necessarily have the Presidents confidence. Thus, by the very nature of the office of a department secretary, the President must appoint in an acting capacity a person of her own choice even while Congress is in session. The pers on may or may not be the permanent appointee, but practical reasons may make it expedient that the acting appointee will also be the permanent appointee. The la w expressly allows the President to make such acting appointment. Section 17, Chapter 5, Title I, Book III of EO 292 (Administrative Code of 1987) states that: The President may temporarily designate an officer already in the governme nt service or any competent person to perform the functions of an office in the executive branch. Thus, the President may even appoint in an acting capacity a p erson not yet in the government service, as long as the President deems that person competent. Ad interim appointment Appointment in an acting capacity Made if congress is not in session Made any time there is vacancy, i.e., whether Congress is in session or not

204 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos Requires confirmation of CA Permanent in nature Appointee enjoys security of tenure Does not require confirmation of CA Temporary in nature The appointee does not enjoy security of tenure Limitations on Appointing Power: 1. Prohibition against nepotism(Section 13, par. 2, Article VII) The spouse and relatives by consanguinity or affinity within the 4th civil degree of the Presi dent shall not during his tenure be appointed as Members of the Constitutional C ommissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including government-o wned or controlled corporations and their subsidiaries. 2. Appointments extended by an Acting President shall remain effective unless r evoked by the elected President within 90 days from his assumption of office. (s ection 14, Article VII) 3. The presidential power of appointment may also be limited by Congress throug

h its power to prescribe qualifications for public office. 4. The judiciary may annul an appointment made by the President if the appointe e is not qualified or has not been validly confirmed by the Commission on Appoin tments. 5. Section 15, Article VII2 types of appointment: Two months immediately before the next presidential elections and up to the end of his term, a President or Ac ting President shall not make appointments, except temporary appointments to exe cutive positions when continued vacancies therein will prejudice public service or endanger public safety. Case of First Impression In Re: Hon. Mateo Valenzuela and Hon. Placido Vallarta, 298 SCRA 409, Section 15, Article VII is directed against two (2) types of appointment: 1. Those made for buying votesthose appointments made within 2 months pre ceding the Presidential election and are similar to those which are declared election offenses in the Omnibus Election Code;

205 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos 2. Those made for partisan considerationsconsist of the so-called midnight appoin tments and those presumed made for the purpose of influencing the outcome of the presidential election. a. If made within the 2-month election period=election offense b. If made by an outgoing President before his term of office ends, it is MIDNIG HT appointment. Exception: temporary appointment to executive positions Case of First Impression De Rama vs. Court of Appeals, 353 SCRA, 94, Mayor Evelyn Abeja run for reelectio n but lost. Before she vacated her office, though, she extended permanent appoin tments to 14 new employees of the municipal government. The incoming m ayor, upon assuming office, recalled said appointments contending that these we re midnight appointments and, therefore, prohibited under Section 15, Article VII of the Constitution. The SC held that the records reveal tha t when the petitioner brought the matter of recalling the appointments of the 14 private respondents before the Civil Service Commission, the only reason he cit ed to justify his actions was that these were midnight appointments that are fo rbidden by the Constitution. However, the CSC ruled, and correctly so , that the said prohibition applies only to presidential appoint ments. In truth and in fact, there is no law that prohibits local elective offic ials from making appointments during the last days of his or her tenure. Rufino vs. Endriga, G.R. Nos. 139554 and 139565, July 21, 2006, a statute cannot

circumvent the constitutional limitations on the power to appoint by filling va cancies in a public office through election by the co-workers in that office. Su ch manner of filling vacancies in a public office has no constitutional basis. A nd since the pertinent section is unconstitutional, the President has the power to appoint the trustees by virtue of Section 16, Article VII which gives the Pre sident the power to appoint officers whose appointments are not provided for by the law.

POWER OF REMOVAL General Rule: This power is implied from the power to appoint. Exceptions: Those appointed by him where the Constitution prescribes ce rtain methods for separation from public services. Example: Members of the Constitutional Commissions, Justices of the SCmay only be removed through impeachment 206 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Members of the career service of the Civil Service who are appointed by the Pres ident may be directly disciplined provided that the same is for cause and in acc ordance with the procedure prescribed by law. Members of the Cabinet and such officers whose continuity in office depends upon the pleasure of the President may be replaced at any time, but legally speaking , their separation is effected not by removal but by expiration of their term. ( Aparri vs. Court of Appeals, 127 SCRA 231)

POWER OF CONTROL Sec. 17, Article VII: The President shall have control of all the executive depa rtments, bureaus and offices. He shall ensure that the laws be faithfully execut ed. Faithful Execution Clause As Chief Executive, the President holds the steering wheel that controls the cou rse of her governmentshe lays down policies in the execution of her plans and pro grams, and whatever policy, she chooses, she has her subordinates to implement t hem. (Chavez vs. Romulo, G.R. No. 157036, June 9, 2004) Controlis the power to alter or modify or nullify or set aside what a subordinate had done in the performance of his duties and to substitute the judgment of the former for that of the latter. Supervisionmeans overseeing, or the power or authority of an officer to see that subordinate officers perform their duties, and if the latter fail or neglect to fulfill them, then the former may take such action or steps as prescribed by law to make them perform these duties. Doctrine of Qualified Political Agency or the Alter Ego Doctrine Acts of the Secretaries of executive departments when performed and promulgated in the regular course of business or unless disapproved or reprobated by the Chi

ef Executive, are presumptively the acts of the Chief executive. In the case of DENR vs. DENR Region XII Employees, G.R. No. 149724, August 19, 2 003, the power of the President to reorganize the National Government may validl y be delegated to his Cabinet members exercising control over a particular execu tive department. Accordingly, in this case, the DENR Secretary can val idly reorganize the DENR by ordering the transfer of the DENR Regional Offices from 207 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos Cotabato City Koronadal, South Cotabato. The exercise of this authority by the D ENR Secretary, as an alter ego of the President, is presumed to be the act of th e President because the latter had not expressly repudiated the same. However, in the case of Gloria vs. Court of Appeals, G.R. No. 119903, August 15, 2000, the SC held that even if the DECS Secretary is an alter ego of the Pre sident, he cannot invoke the Presidents immunity from suit in a case f iled against him, inasmuch as the questioned acts are not those of the Preside nt. The power of control may be exercised by the President only over the acts not ov er the actor (Angangco vs. Castillo, 9 SCRA 619)

POWER OF GENERAL SUPERVISION OVER LOCAL GOVERNMENTS (Section 4, Article X)the Pre sident can only interfere in the affairs and activities of a LGU if he finds tha t the latter acted contrary to law. The President or any of his alter egos, cann ot interfere in local affairs as long as the concerned LGU acts within the param eters of the law and the Constitution. Any directive, therefore, by the Presiden t or any of his alter egos seeking to alter the wisdom of a law-conforming judgm ent on local affairs of a LGU is a patent nullity, because it violates the princ iple of local autonomy, as well as the doctrine of separation of powers of the e xecutive and the legislative departments in governing municipal corporations. (J udge Dadole vs. COA, G.R. No. 125350, December 3, 2002) The President exercises general supervision, not control, over local governments . The power is generally to see to it that the LGUs perform their powers and fun ctions in accordance with law.

MILITARY POWERS Section 18, Article VII: 1. The Commander-in-Chief Clause To call out the Armed forces to prevent or suppress lawless violence, invasion or rebellion. Organize courts martial for the discipline of the armed forces and create militar y commissions for the punishment of war criminals.

Calling-out powerlawless violence HC Rebellion ic safety

declare martial law & suspend the writ of invasion when the publ

208 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos Invasion rebellion so requires

Gudani vs. Senga, G.R. No. 170165, August 15, 2006 (Tinga), the ability of the President to require a military official to secure prior consent before appearing before Congress pertains to a wholly different and independe nt specie of presidential authoritythe commander-in-chief powers of the Preside nt. By tradition and jurisprudence, the commander-in-chief powers of the Preside nt are not encumbered by the same degree of restriction as that which may attach to executive privilege or executive control. 2. Suspension of the privilege of the writ of habeas corpus Grounds: invasion or rebellion, when public safety requires it. Duration: not to exceed 60 days, following which it shall be lifted unless exten ded by Congress Duty of the President: To report action to Congress within 48 hours, personally or in writing The Congress may revoke or extend, on request of the President, the effectivity o f proclamation by a majority vote of all its Members, voting jointly. The suspension applies only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. During the suspension of the privilege of the writ of habeas corpus, any person thus arrested or detained shall be judicially charged within three (3) days, oth erwise he shall be released. 3. Proclamation of Martial Law Constitutional safeguards on the exercise of the power of the President to procl aim martial law a. There must be actual invasion or rebellion; b. The duration of the proclamation shall not exceed 60 days; c. Within 48 hours, the President shall report his action to Congress

. if Congress is not in session, it must convene within 24 hours; 209 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos d. Congress may, by majority vote of all its members voting jointly, revoke the proclamation, and the President cannot set aside the revocation; e. By the same vote and in the same manner, upon initiative of the President, Congress may extend the proclamation if the invasion or rebellion con tinues and public safety requires it; f. The Supreme Court may review, in an appropriate proceeding filed by any cit izen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus or the extension t hereof, and must promulgate its decision thereon within 30 days from its filing; g. It does not suspend the operation of the Constitution, nor supplant the func tioning of the civil courts or legislative assemblies, nor authorize the confine ment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the wri t. Olaguer doctrineaka OPEN COURT DOCTRINEcivilians cannot be tried by military court s if the civil courts are open and functioning (Olaguer vs. Military Commission No. 34, G.R. No. L-54448, May 22, 1987) 4 ways for the proclamation or suspension to be lifted: 1. Lifting by the President himself; 2. Revocation by Congress; 3. Nullification by the SC; 4. Operation of law after 60 days. PARDONING POWER Exercise by the President: Discretionary; may not be controlled by the legislatu re or reversed by the courts unless there is violation of the Constitution. Section 19, Article VII is simply the source of power of the President to grant reprieves, commutations, and pardons and remit fines and forfeitures after convi ction by final judgment. This provision, however, cannot be interpreted as denyi ng the power of courts to control the enforcement of their decisions after the f inality. In truth, an accused that has been convicted by final judgment still po ssesses collateral rights and these rights can be claimed in the appropriate cou rts. For instance, a death convict who becomes insane after his final conviction cannot be executed while in the state of insanity. (See Article 79 of the Revised Penal Code) 210 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos Article 81 of the Revised Penal code, as amended, which provides that the death

sentence shall be carried out without prejudice to the exercise by the President of his executive clemency powers at all times. For instance, the President cann ot grant reprieve, i.e., postpone the execution of a sentence to a day certain i n the absence of a precise date to reckon with. The exercise of such clemency po wer, at this time, might even work to the prejudice of the convict and defeat th e purpose of the Constitution, and the applicable statute as when the date of ex ecution set by the President would be earlier than that designated by court. (Ec hegaray vs. Secretary of Justice, 301 SCRA 96) 1. Pardonan act of grace which exempts the individual on whom it is bestowed fro m punishment which the law inflicts for a crime he has committed. a. Plenary or partial b. Absolute or conditional Conditional pardonis in the nature of a contract between the sovereign power or t he Chief Executive and the convicted criminal to the effect that the former will release the latter subject to the condition that if he does not comply with the terms of the pardon, he will be recommitted to prison to serve the unexpired po rtion of the sentence or an additional one. 2. Commutationreduction or mitigation of penalty 3. Reprievepostponement of sentence or stay of execution 4. Parolerelease from imprisonment, but without full restoration of libe rty, as parolee is in custody of the law although not in confinement 5. Amnestyact of grace, concurred in by the Legislature, usually extended to groups of persons who committed political offenses, which puts into oblivion the offense itself. Limitations: a. Cannot be granted in cases of impeachment; b. Cannot be granted in violations of election laws without f avorable recommendations of the COMELEC; c. Can be granted only after conviction by final judgment (except amnesty); d. Cannot be granted in cases of legislative contempt or civil contempt; e. Cannot absolve convict of civil liability; f. Cannot restore public offices forfeited. Amnesty Pardon addressed to political offenses refers to infractions of laws of the state or 211 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

granted to a class or classes of persons it need not be accepted

it requires the concurrence of Congress

it is a public act it looks backward and puts the offense into oblivion Judicial admissions ordinary offenses granted to individuals it must be accepted it does not need the concurrence of Congress it is a private act of the President it looks forward and relieves the pardonee of the consequences of the offense Matters of judicial notice no need of proof Judicial presumptions In Llamas vs. Orbos, pardon is available also to one found guilty of administrat ive offense. Section 19 of Article VII did not distinguish between a criminal and adm inistrative offense. Effect of grant of pardon: In the case of Monsanto vs. Factoran, the accused was convicted of malversation thru falsification of official documents. She was granted absolute pardon. She d emanded for reinstatement and back salaries. The SC held that pardon may mean fo rgiveness but not forgetfulness. What was remitted is the penalty and not the fa ct of ones guilt. In the eyes of law, she was still a convict. Exceptions: 1. Unless the grant expressly so provides for her reinstatement and payment of back salaries. 2. If the grant of pardon was based on the fact of the innocence of the one cha rged of the crime. BORROWING POWER The President may contract or guarantee foreign loans on behalf of the Republic with the concurrence of the Monetary Board, subject to such limitations as may b e

212 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos provided by law. The Monetary Board shall submit to the Congress report on loans within 30 days from end of every quarter. Limitations: 1. There must be prior concurrence of the Monetary Board 2. It is subject to such other limitations DIPLOMATIC/TREATY-MAKING POWER (Section 21, Article VII) No treaty or international agreement shall be valid and effective unless concurr ed in by at least 2/3 of all the members of the Senate. In our jurisdiction, the power to ratify is vested in the President and not, as commonly believed, in the legislature. The role of the Senate is limited only to giving or withholding its consent, or concurrence, to the ratification. (Bayan vs. Zamora, G.R. No. 138570, October 10, 2000) This provision lays down the general rule on treaties or international agreement s and applies to any form of treaty with a wide variety of subject matter. All t reaties or international agreements entered into by the Philippines, regardless of subject matter, coverage, or particular designation or appellation, req uires the concurrence of the Senate to be valid and effective. But see Section 25 of Article XVIII. Under this provision, the concurrence of th e Senate is only one of the requisites to render compliance with the constitutio nal requirements and to consider the agreement binding on the Philippines. BUDGETARY POWER Within 30 days from opening of every regular session, President shall submit to Congress a budget of expenditures and sources of financing, including receipts f rom existing and proposed revenue measures. The Congress may not increase the appropriation recommended by the Pres ident. However, its form, content, manner of preparation of the budget shall be prescribed by Congress. INFORMING POWERState of the Nation Address (Section 23, Article VII) The President shall address Congress at the opening of its regular session (4th Monday of July). He may also appear before it at any other time. 213 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

VETO POWER (Article VI)

RESIDUAL POWER Whatever is not judicial, whatever is not legislative, is residual power exercised by the President. OTHER POWERS 1. Power to call special session (Section 15, Article VI) 2. Power to deport aliens 3. Consent to deputization of government personnel by COMELEC 4. To discipline such deputies 5. for a. b. c. d. e. By delegation from Congress, exercise emergency and tariff powers Conditions the exercise of the President of Emergency Powers: It can be exercised only in times of war or national emergency; There must be a law authorizing the President to exercise emergency powers; It must be for a limited period; It must be subject to restrictions which Congress may provide; and It must be necessary and proper to carry out a declared national policy. the Office of the Presidentunder EO 292

6. Power to Reorganize , the Administrative Code of 1987

The law grants the President continuing authority to reorganize the Office of th e President in recognition of the recurring need of every President to reorganiz e his office to achieve simplicity, economy and efficiency. The Office of the Pres ident is the nerve center of the Executive Branch. To remain effective and effic ient, the Office must be capable of being shaped and reshaped by the President i n the manner he deems fit to carry out his directives and policies. Power to reorganize the Office of the President [Sec. 31 (2&3), EO 292] The Presidents power to reorganize offices outside the Office of the Power to reorganize the Office of the President Proper [Sec. 31 (1), EO 292] The President can reorganize the Office of the president Proper by: 214 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos President Proper is limited to merely transferring functions or agencies from th e Office of the president to Departments or Agencies, and vice versa. a. Abolishing; b. Consolidating or merging units; c. Transferring functions from one unit to another. Domingo vs. Zamora, G.R. No. 142283, February 6, 2003

Malaria Employees and Workers Association of the Philippines (MEWAP) vs. Executi ve Secretary Romulo, G.R. No. 160093, July 31, 2007, the President has the autho rity to carry out a reorganization of the DOH under the Constitutions and statut ory laws. This authority is adjunct of his power of control under Article VII, S ections 1 and 17. The Presidents power to re0organize the executive branch is also an exercise of his residual powers. However, the President must exercise good faith in carry ing out the reorganization of any branch or agency of the executive department. IMPOUNDMENT POWER Impoundment refers to the refusal of the President, for whatever reason, to spen d funds made available by Congress. It is the failure to spend or obligate budge t authority of any type. Proponents of impoundment have invoked at least three (3) principal sources of t he authority of the President. 1. authority to impound given to him either expressly or impliedly by Congress 2. the executive power drawn from the Presidents role as Commander-in-Chief 3. Faithful Execution Clause The proponents insist that a faithful execution of the laws requires th at the President desist from implementing the law if doing so would prejudice pu blic interest. An example given is when through efficient and prudent management of a project, substantial savings are made. In such a case, it is sheer folly t o expect the President to spend the entire amount budgeted in the law. (PHILCONS A vs. Enriquez, 235 SCRA 506)

215 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Article VIII JUDICIAL DEPARTMENT

CONCEPT OF JUDICIAL POWER It is the power to hear and decide cases pending between parties who have the ri ght to sue in courts of law and equity. Corollary to this dictum is the principl e of locus standi of a litigant. He who is directly affected and whose interest is immediate and substantial has the standing to sue. Thus, a party must show a personal stake in the outcome of the case or an injury to himself that can be re dressed by a favorable decision in order to warrant an invocation of the courts j urisdiction and justify the exercise of judicial power on his behalf. (Domingo v s. Carague, G.R. No. 161065, April 15, 2005)

Section 1, Article VIII JUDICIAL POWER The judicial power shall be vested in one SC and in such lower courts as may be established by law. Judicial power includes: 1. The duty of the courts of justice to settle actual controversies involving ri ghts which are legally demandable and enforceable (TRADITIONAL CONCEPT O F JUDICIAL POWER); and 2. To determine whether or not there has been a grave abuse of discretion amount ing to lack or excess of jurisdiction (GADALEJ) on the part of any branch or ins trumentality of the Government. (EXPANDED POWER) Jurisdiction: The power to hear and decide cases.

Section 2, Article VIIIThe Congress shall have the power to define, prescribe, an d apportion the jurisdiction of the various courts but may not deprive the Supre me Court of its jurisdiction over cases enumerated in Section 5 hereof. No law shall be passed reorganizing the Judiciary when it undermines the security of tenure of its Members.

216 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B

ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Constitutional Safeguards that guarantee independence of Judiciary: 1. The Supreme Court is a constitutional body and may not be abolished by law; 2. The members of the SC are removable only by impeachment; 3. The SC may not be deprived of minimum original and appellate jurisdiction; appellate jurisdiction may not be increased without its advice and concurrence; 4. The SC has administrative supervision over all inferior courts and personnel ; 5. The SC has the exclusive power to discipline judges/justices of inferior cou rts; 6. The members of the Judiciary have security of tenure; 7. The members of the SC may not be designated to any agency, performing quasijudicial or administrative functions; 8. Salaries of judges may not be reduced; the Judiciary enjoys fiscal autonomy; 9. The SC alone may initiate Rules of Court; 10. The SC alone may order temporary detail of judges; 11. The SC can appoint all officials and employees of the Judiciary. Fiscal Autonomymeans freedom from outside control. The Judiciary, the Constitutio nal Commissions, and the Ombudsman must have the independence and flexibility ne eded in the discharge of their constitutional duties. The imposition of restrict ions and constraints on the manner the independent constitutional offic es allocate and utilize the funds appropriated for their operations is anathema to fiscal autonomy and violative not only of the express mandate of th e Constitution but especially as regards the SC, of the independence and separ ation of powers upon which the entire fabric of our constitutional system is bas ed. (Bengzon vs. Drilon, 208 SCRA 133, April 15, 1992)

Appointment to the Judiciary: Qualifications: Of proven competence, integrity, probity and independence. In ad dition: A. Justices of the SC a. Natural-born citizen; b. At least 40 years of age; 217 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R

review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos c. 15 years or more a judge of a lower court or has been engaged in the practi ce of law in the Philippines for the same period. B. Justices of the Court of Appeals Same qualifications as those provided for SC Justices Congress may prescribe other qualifications C. RTC Judges a. Citizen of the Philippines; b. At least 35 years of age; c. Has been engaged in the practice of law for at least 5 years or has held pu blic office in the Philippines requiring admission to the practice of law as an indispensable requisite D. MTC, MeTC, MCTC Judges a. Citizens of the Philippines; b. At least 30 years of age; c. Has been engaged in the practice of law for at least 5 years or has held pub lic office in the Philippines requiring admission to the practice of law as an i ndispensable requisite. Procedure for Appointment: 1. Appointed by the President from among a list of at least 3 nominees prepared by the Judicial and Bar Council (JBC) for every vacancy. 2. For lower courts, President shall issue the appointment 90 days from submiss ion of the list. Tenure of Justices and Judges: A. Supreme CourtHold office until they reach the age of 70 or become incapacitated to discharge their duties. They may be removed only through impeac hment. B. Lower CourtsHold office during good behavior until they reach the age of 70 or become incapacitated to discharge their duties. By majority vote of members who actually took part in the deliberation on the iss ues and voted thereon, SC en banc shall have the power to discipline judges of l ower courts or order their dismissal. No law shall be passed reorganizing the Judiciary when it undermines the secur ity of tenure of its Members.

218 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

JUDICIAL AND BAR COUNCIL Composition: Ex-Officio ChairmanChief Justice of the Supreme Court

Ex-Officio Members Secretary of Justice Representative of Congress Regular MembersRepresentative of the IBP Professor of Law Retired Member of SC Representative of private sector Secretary de OfficioClerk of the Supreme Court Appointment: The President shall appoint regular members for a 4-year term with the consent o f the Commission on Appointments Powers and Functions: 1. Recommend appointees to the Judiciary; 2. Recommend appointees to the Office of the Ombudsman and his 5 Deputies; 3. May exercise such other functions as may be assigned by the Supreme Court. SUPREME COURT Composition: Chief Justice and 14 Associates Justices May sit: o En Banc; or o In its discretion, in divisions of 3, 5, or 7 members Any vacancy shall be filled within 90 days from occurrence thereof. Powers of the Supreme Court A. Original Jurisdiction 1. Over cases affecting ambassadors, other public ministers and consuls; 2. Over petition for Certiorari, Prohibition, mandamus, Quo Warranto, a nd Habeas Corpus; Certiorari Jurisdiction of the SClimited to decisions rendered in actions or proc eedings taken cognizance of by the Commissions in the exercise of their adjudica tory or quasi-judicial functions. It does not refer to purely executive powers. Hence, questions arising from the award of a contract for construction of voting booths can be brought before the trial court. (Ambil vs. COMELEC, G.R. No. 143398, October 5, 2000) 3. Review of factual basis for the declaration of martial law or suspension of the privilege of writ of habeas corpus.

219 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

B. Appellate Jurisdiction Over final judgments and orders of lower courts in: a. All cases in which constitutionality or validity of any treaty international or executive agreement, law, presidential decree, proclamation, order, instruct ion, ordinance, or regulation is in question; b. All cases involving the legality of any tax impost, assessment, or toll, or any penalty imposed in relation thereto; c. All cases in which the jurisdiction of any lower courts is in issue; d. All criminal cases in which the penalty imposed is reclusion perpetua or hig her; and e. All cases in which only a question of law is involved. C. Electoral Tribunal for Presidential and Vice-Presidential Contests, o ver all contests relating to the election, return and qualification of the Pres ident or Vice- President. D. Temporary assignment of judges of lower courts to other stations as public interest may require. Not to exceed 6 months without the consent of the judge concerned. E. Order change of venue or place of trial, to avoid miscarriage of justice F. 1. 2. 3. 4. 5. Rule-making powerpromulgates rules concerning: Protection and enforcement of constitutional rights; Pleading, practice, and procedure in all courts; Admissions to the practice of law; IBP; and Legal assistance to the underprivileged.

Limitations on rule-making power: a. Provide a simplified and inexpensive procedure for speedy disposition of cas es; b. Uniform for all courts of the same grade; c. Shall not diminish, increase or modify substantive rights. In Re: Request for Creation of a Special Division, A.M. No. 02-1-09-SC, January 21, 2002, it was held that it is within the competence of the Supreme Court, in the exercise of its power to promulgate rules governing the enforcement and prot ection of constitutional rights and rules governing pleading, practice and proce dure in all courts, to create a Special Division in the Sandiganbayan which will hear and decide the plunder case against former President Estrada. Echegaray vs. Secretary of Justice, G.R. No. 132601, January 19, 1999, Congress cannot amend the Rules of Court. The SC declared that the 220 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos Constitution took away the power of Congress to repeal, alter, or supplement rul es concerning pleading, practice and procedure. In fine, the power to promulgate rules of pleading, practice and procedure is no longer shared by the Court with Congress, more so with the Executive. G. Power of AppointmentSC appoints all officials and employees of the Judiciary in accordance with Civil Service law. H. Power of Administrative SupervisionSC shall have administrative supervision ov

er all courts and personnel thereof. Administrative proceedings before the SC are confidential in nature in order to protect the respondent therein who may turn out to be innocent of the charges; i t can take years to build a reputation and only a single accusation, although un founded, to destroy it. (Godinez vs. Alano, A.M. RTJ-98-1409, February 18, 1999) I. Yearly ReportWithin 30 days from the opening of each regular session of Cong ress, SC shall submit to the President and Congress an annual report on the oper ation and activities of the Judiciary. (Section 16, Art. VIII) Cases to be heard by the SC En Banc: 1. Cases in which the constitutionality or validity of any treaty, internationa l or executive agreement, law, executive order, or presidential decree, p roclamation, order, instruction, ordinance, or regulation is in question; 2. Cases raising novel questions of law; 3. Cases affecting ambassadors, other public ministers and consuls; 4. Cases involving decisions, resolutions or orders of the Civil Service Commis sion, Commission on Election, and Commission on Audit; 5. Cases where the penalty to be imposed is the dismissal of a judge, offic er or employee of the judiciary, disbarment of a lawyer, or either the suspensi on of any of them for a period of more than one (1) year or a fine exceeding ten thousand pes os (P10,000.00) or both; 6. Cases where a doctrine or principle laid down by the court en banc or in div ision may be modified or reversed; 7. Cases assigned to a division which in the opinion of at least three (3) memb ers thereof merit the attention of the court en banc and are acceptable to a maj ority of the actual membership of the court en banc; and 8. All other cases as the court en banc by a majority of its actual membership may deem of sufficient importance to merit its attention. (Firestone Ceramics, I nc. vs. CA, 334 SCRA 465, June 28, 2000) Consultations/Decisions of SC The conclusions of the SC in any case submitted to it for decision en banc or in division shall be reached in consultation before the case is assigned to a Memb er for the writing of the 221 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos opinion of the Court. A certification to this effect signed by the Chief Justice shall be issued and a copy thereof attached to the record of the case and serve d upon the parties. Any Member who took no part, or dissented, or abstained from a decision or resolution must state the reason therefor. The same requirements shall observe by all lower collegiate courts. Section 13, Article VIII This requirement does not apply to administrative cases Section 14, Article VIIINo decision shall be rendered by any court wit hout expressing therein clearly and distinctly the facts and the law on which it is based.

It does not apply to a minute resolution dismissing a petition for habeas co rpus, certiorari and mandamus, provided a legal basis is given therein. Neither will it apply to administrative cases. People vs. Baring, G.R. No. 137933, January 28, 2002, the trial courts decision may cast doubt on the guilt of the accused, not by the lack of direct evidence against the accused but by: 1. the trial courts failure to fully explain the correlation of the facts; 2. the weight of the admissibility of the evidence; 3. the assessments made from the evidence; and 4. The conclusion drawn therefrom, after applying the pertinent law as basis of the decision. No petition for review or motion for reconsideration of a decision of the court shall be refused due course or denied without stating the legal basis therefor. Lack of merit is sufficient declaration of the legal basis for denial of petition for review or motion for reconsideration. Tichangco vs. Enriquez, G.R. No. 150629, June 30, 2004, when the Court, after de liberating on a petition and any subsequent pleadings, manifestations, comments or motions, decides to deny due course to a petition, and statesin a minute resol ution that the questions raised are factual or no reversible error in the respond ent courts decision is shown or some other legal basis stated in the resolution, there is sufficient compliance with the constitutional requirement.

222 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

WRIT OF AMPARO

The Rule on Writ of Amparo (A.M. No. 07-9-12-SC) It was drafted pursuant to the constitutional power of the Supreme Court to prom ulgate rules and regulations for the protection and enforcement of constitutiona

l rights. WRIT OF AMPAROit is a remedy available to any person whose right to life, liberty , and security has been violated or is threatened with violation by an unlawful act or omission of a public official or office, or of a private individual or en tity. The writ covers extralegal killings and enforced disappearances or threats thereof. It is a writ which may be issued by the courts based on this constitutional powe r of the SC to promulgate rules for the protection and enforcement of constituti onal rights. It is a remedy to enforce fundamental rights. It would compel state agents to look for the missing person and the agents would be held liable if they did not exert adequate effort in finding the person. amparomeans protection, from amparar meaning to protect Who may file? The petition may be filed by the aggrieved party or by any qualified person or e ntitiy in the following order: Any member of the immediate family, namely: i. Spouse ii. Children iii. Parents of the aggrieved party Any ascendant, descendant or collateral relative of the aggrieved party with in the 4th civil degree of consanguinity or affinity, in default of those menti oned above; or Any concerned citizen, organization, association, or institution, if there i s no known member of the immediate family or relative of the aggrieved party. The filing of a petition by the aggrieved party suspends the right of all other authorized parties to file similar petitions. Likewise, the filing of the petiti on by an authorized party on behalf of the aggrieved party suspends the rights o f all others, observing the order established by the law.

223 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos Where can be filed? The petition may be filed on any day at any time with the: RTC of the place where the threat, act or omission was committed or any of its e lements occurred; Sandiganbayan Court of Appeals or any Justice of such courts Supreme Court The writ shall be enforceable anywhere in the Philippines. The court, justice or judge shall immediately order the issuance of the writ if on the face of the pe tition it ought to issue. It is served on the respondent by a judicial officer o r by a person deputized by the court, justice or judge who shall retain a copy o n which to make a return of service.

In case the writ cannot be served personally on the respondent, the rules on substituted service shall apply. A clerk of court who refuses to issue the writ after its allowance, or a deputiz ed person who refuses to serve the same, shall be punished by the court, justice or judge for contempt without prejudice to other disciplinary actions.

Return of the Writthe respondent shall file a verified written return together wi th the supporting affidavits within seventy-two (72) hours. If he fails to file a return, the court, justice or judge shall proceed to hear the petition ex parte or even without the appearance of the respondent. RTCreturnable before such court or judge Returnable before such court or any justice thereof; or SB/CA To any RTC of the place where the threat, act or omission was committed or any of its elements occurred Returnable before such court or any of its justices; SC Before the SB or CA or any of their justices; or To any RTC of the place where the threat, act or omission was committ ed or any of its elements occurred

Hearing on the Petition The hearing shall be summary in nature. However, the court, justice or judge may call for a preliminary conference to clarify or simplify some issues and determ ine the possibility of obtaining stipulations and admissions from the parties.

224 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Available Interim Reliefs: 1. Temporary Protection Orderupon motion or motu proprio, the court, justice or judge may order that the petitioner or the aggrieved party and any member of the immediate family be protected in a government agency or by an accredited person or private institution capable of keeping and securing their safety 2. Inspection Orderissued to any person in possession or control of a designated land or other property, to permit entry for the purpose of inspecting , measuring, surveying, or photographing the property or any relevant object or operation thereon. The movant must show that the order is necessary t o establish the right of the aggrieved party alleged to be threatened or violate

d. It expires five (5) days after date of its issuance, unless extended for just ifiable reasons. 3. Witness Protection Orderthe witness may be referred to the DOJ for admission to the Witness Protection, Security and Benefit Program, or to other g overnment agencies, or to accredited persons or private institutions capable of keeping and securing their safety. Only the first two interim reliefs are available to the respondent after he file d a verified motion supported by affidavits or testimonies of witnesses having p ersonal knowledge of the defenses of the respondent, and after due hearing. The Court shall render judgment within 10 days from the time the petition is sub mitted for decision. If the allegations in the petition are proven by substantia l evidence, the court shall grant the privilege of the writ and such reliefs as may be deemed proper and appropriate; otherwise, the privilege shall be denied. If the court determines that it cannot proceed for a valid cause such as the fai lure of petitioner or witnesses to appear due to threats on their lives, it shal l not dismiss the petition. The court shall archive it instead. The amparo court may, on its own or upon motion by any party, order revival of the petition when ready for further proceedings. The petition shall be dismissed with prejudice u pon failure to prosecute the case after the lapse of two (2) years from notice t o the petitioner of the order archiving the case.

Does the filing of the petition preclude the filing of separate criminal, civil o r administrative actions? No. However, when a criminal action has been commenced, no separate petition for the writ shall be filed, but the reliefs under the writ shall be available by m otion in the criminal case, and the procedure under this rule shall govern the d isposition of the reliefs available under the writ of amparo. 225 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos When a criminal action is filed subsequent to the filing of a petition for the w rit, the latter shall be consolidated with the criminal action. When a criminal action and a separate civil action are filed subsequent to a pet ition for a writ of amparo, the latter shall be consolidated with the criminal a ction. After consolidation, the procedure under this Rule shall continue to appl y to the disposition of the reliefs in the petition.

POWER OF JUDICIAL REVIEW It is the power of courts to test validity of executive and legislative acts if the same are in accordance with the Constitution. It is an expression of suprema cy of Constitution. Justiciable Questiona given right, legally demandable and enforceable, an act or omission violative of such right, and a remedy granted by law for said breach of

right Political Questionsthose questions which, under the constitution, are to be decid ed by the people in their sovereign capacity; or in regard to which full discretionary authority has been delegated to the legislative or executive branches of government. Political Question Doctrine has been greatly diminished. Political questions are questions of policy. They involve the wisdom of an act o r the efficacy or the necessity of a particular measure. These are questions whi ch are better left for the political branches of the government to determine or resolve. Arose from doctrine of separation of powers Two (2) Types of Political Question 1. Those to be decided by the people themselves in their sovereign capacity 2. Full discretionary authority has been delegated by the Constitution to the Legislative or Executive branch of the government Legislative and Executivepolitical branches of the governmentwhere laws are enacted and enforced RECALL- a mode of removing a local official from his post even before his term e nds due to lack of confidence. It is a political question which can not be intru ded by the courts. Ybardone vs. COMELEC- lack of confidence is to be decided by the people thru a s pecial recall election 226 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos Lawyer s League vs. AquinoPetitioner questioned the legality of the Aqui no Government. -the SC dismissed the petition that it has gone outside the ambit of judicial re view - the mere presence of the people, without inquiring to their motive in going to EDSA, caused Marcos to fly to Hawaii. Estrada vs. Desierto (2001) The Petition questioned the legitimacy of the assumption of office by then Vice President GMA Lawyer s League case was cited by respondents; that the case presented a politica l question, hence not subject to judicial review SC held that the case of Lawyer s League is inapplicable; the government of forme r President Aquino was the result of a successful revolution by the sovereign pe ople, albeit a peaceful one. No less than the Freedom Constitution declared that the Aquino government was installed through a direct exercise of the power of t he Filipino people "in defiance of the provisions of the 1973 Constitution, as a mended." It is familiar learning that the legitimacy of a government sired by a successful revolution by people power is beyond judicial scrutiny for that gover nment automatically orbits out of the constitutional loop. In checkered contrast , the government of respondent Arroyo is not revolutionary in character. The oat

h that she took at the EDSA Shrine is the oath under 1987 Constitution. In her oath, she categorically swore to preserve and defend t he 1987 Constitution. Indeed, she has stressed that she is discharging the pow ers of the presidency under the authority of the 1987 Constitution. Thecaseatbarposelegalandnotpoliticalquestions. The principal issues for resoluti on require the proper interpretation of certain provisions in the 1987 Constitut ion, notably Sec. 1 of Article II and Sec. 8 of Article VI, and the allocation o f governmental powers under Section 11 of Article VII. The issues likewise call for a ruling on the scope of presidential immunity from suit. They also involve the correct calibration of the right of petitioner against prejudicial publicity . Thus, respondent s invocation of the doctrine of political question is but a f oray in the dark. EDSA I EDSA II -involves the exercise of people power of revolution which overthrows the whole government

-extra constitutional and the legitimacy of the new government that resulted fro m it cannot be the subject of judicial review -involves the exercise of people power of freedom of speech and freedom of assem bly to petition the government for redress of grievances which only affected the office of the President -intra constitutional and the resignation of the sitting President that it cause d and the succession of the VP as President are subject to judicial review 227 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos -presented a political question -involves legal questions

IBP vs. ZAMORA (2000) The SC said that when the President calls out the armed forces to suppress lawle ss violence, rebellion or invasion, he necessarily exercises a discretionary pow er solely vested in his wisdom. The Court cannot overrule the President s discre tion or substitute its own. The only criterion is that "whenever it becomes nece ssary", the President may call out the armed forces. In the exercise of the powe r, on-the-spot decisions may be necessary in emergency situations to avert great loss of human lives and mass destruction of property. Indeed, the decision to c all out the armed forces must be done swiftly and decisively if it were to have any effect at all. Section 18, Article VII- Powers of the President 1. Calling out power as Commander-in-Chief of the AFP 2. Power to proclaim martial law

3. Power to suspend the privilege of the writ of habeas corpus CALLING-OUT POWER - full discretionary power of the President. In effect, it is a political question not subject to judicial review UNLESS it can be shown that there is GRAVE ABUSE OF DISCRETION (GAD) in the exercise of such power. -expanded power of the judicial review -mere abuse of discretion will not do. The abuse must be grave. To doubt is to sustain the power of the President.

Grave Abuse of Discretion Amounting to Lack or Excess of Jurisdiction capricious and whimsical exercise of judgment. The abuse of discretion must be patent and g ross as to amount to an evasion of a positive duty or a virtual refusal to perfo rm a duty enjoined by law, or to act at all in contemplation of law, as where th e power is exercised in an arbitrary and despotic manner by reason of passion or hostility. (Intestate Estate of Carmen de Luna vs. IAC, February 13, 1989) General Rule: Calling out power is not subject to judicial review and is considered a political question. Exception: When there has been a GAD. #s 2 and 3- are not political questions. They are subject to judicial review as e xpressly provided in Sec. 18 (3), Article VII: xxx The SC may review, in an appropriate proceeding filed by

228 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, an d must promulgate its decision thereon within 30 days from its filing. xxx Randolf David, et al. vs. GMA, et al. (2006) Petitioners failed to rebut the assertion that GMA acted with grave abuse of disc retion SC uphold the constitutionality of PP1017 insofar as it constitutes a call by the President for the AFP to prevent or suppress lawless violence. The proclamation is sustained by Sec. 18, Art. VII and other relevant jurisprudence . However, PP 1017 s extraneous provisions giving the President express or impli ed power (1) to issue decrees; (2) to direct the AFP to enforce obedience to all laws even those not related to lawless violence as well as decrees promulgated by the President; and (3) to impose standards on media or any form of prior rest raint on the press, are ultra vires and unconstitutional. The Court also rules t hat under Sec. 17, Art. XII, the president, in the absence of legislation, canno

t take over privately-owned public utility and private business affected with pu blic interest. ultra-vires acts and unconstitutional: a. warrantless arrest of petitioners David and Llamas; b. the dispersal of the rallies and warrantless arrest of the KMU and NAFLU-KMU members; c. imposition of standards on media or any prior restraint on the press; d. warrantless search of the Tribune offices and the whimsical seizures of some articles for publication and other materials Section 23 (2), Article VI: In times of war or other national emergency, the Congress may, by law, a uthorizethePresident, for a limited period and subject to restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared nati onal policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof. Generally, Congress is the repository of emergency powers. This is evident in th e tenor of the above provision authorizing it to delegate such powers to the Pre sident. Certainly, a body cannot delegate a power not reposed upon it . However, knowing that during grave emergencies, it may not be possible or prac ticable for Congress to meet and exercise its powers, the Framers of the Constit ution deemed it wise to allow Congress to grant emergency powers to the Presiden t, subject to certain conditions, thus: (1) There must be war or other emergency (2) The delegation must be for a limited period only (3) The delegation must be subject to restrictions as the Congress may

229 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos prescribe (4) The emergency power must be exercised to carry out a national policy declared by Congress Let it be emphasized that while the President alone can declare a state of national emergency, however, without legislation, he has no power to take over privately-owned public utility or business affected with public inter est. The President cannot decide whether exceptional circumstances exist warrant ing the take over of privately-owned public utility or business affected with pu blic interest. Nor can he determine when such exceptional circumstances have cea sed. Likewise, without legislation, the President has no power to point out the types of businesses affected with public interest that should be taken over. In short, the President has no absolute authority to exercise all the powers of the State under Section 17, Article XII in the absence of an emergency powers act p assed by Congress. *emergency power must be authorized by Congress (thru an enactment of law) *she is not exercising emergency power because there was no law enacted by Congress authorizing her to exercise such power

General not be powers through mind of

rule: POTESTA DELEGATA NON DELEGARE POTEST- what has been delegated can re-delegated. It is based on ethical principle that delegated constitutes not only a right but a duty to be performed by the delegate the instrumentality of his own judgment and not through the intervening another.

While PAGCOR is allowed under its charter to enter into operators and/or manageme nt contracts, it is not allowed to relinquish or share its franchise, much less grant a veritable franchise to another entity such as SAGE. In Lim vs. Pacquing, 240 SCRA 649, the Court clarified that since ADC has no franchise from Congress to op erate jai-alai, it cannot, even if it has license or permit from the City Mayor, operate jai-alai in the City of Manila. By the same token, SAGE has to obtain a separate legislative franchise, and not ride on PAGCORs franchise if it were to leg ally operate on-line internet gambling (Jaworski vs. PAGCOR, G.R. No. 144463, Ja nuary 14, 2004). Exceptions: Permissible Delegation of Powers (PETAL) P-eople power thru plebiscite and initiative- (Sec. 32, ART VI; Sec. 10, Art. X; Sec. 2, Art. XVII; RA 6735) Under the 1987 Constitution, there are specific pro visions where the people have reserved to themselves the function of legislation . Referendum vs. Plebiscite Referendum Plebiscite -the power of the electorate to approve or reject legislation through an electio n called -the electoral process by which an initiative on the Constitution is approved or rejected

230 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos for that purpose E-mergency power of the President. (Sec. 23(2), Art. VI) T-ariff Powers to the President. (Sec. 28(2), Art. VI) A-dministrative agencies- The power of subordinate legislation. L-ocal government. (RA 7160) Such legislation (by LG) is not regarded as a transf er of general legislative power, but rather as the grant of the authority to pre scribe local regulations, according to immemorial practice, subject, of course, to the interposition of the superior in cases of necessity (People vs. Vera). Thi s recognizes the fact that local legislatures are more knowledgeable than the na tional lawmaking body on matters of purely local concern, and are in better posi tion to enact appropriate legislative measures thereon. by the people

Tests for Valid Delegation: 1. Completeness TestThe law must be complete in all its essential terms and con ditions when it leaves the legislature so that there will be nothing left for th e delegate to do when it reaches him except to enforce it. 2. SufficientStandardTestintended to map out the boundaries of the delegates aut hority by defining the legislative policy and indicating the circumstances under which it is to be pursued and effected. This is intended to prevent a total tra nsference of legislative power from the legislature to the delegate. Three (3) Important Functions of Judicial Review 1. Checking 2. Legitimating Rule on Double Negativeuses the term not unconstitutional; the court cannot de clare a law constitutional because it already enjoys a presumption of constituti onality 3. Symbolic - educating the bar and bench and the people on the extent of protec tion given by the constitutional guarantees Proclamation No. 1021 was issued lifting PP 1017- it becomes moot and academic bu t SC did not agree as the case is capable of repetition. Requisites for the proper exercise of Power of Judicial Review 1. Actual case or controversy- must be definite, concrete, bearing upon the leg al relations of parties who are pitted against each other due to thei r adverse legal interests. -susceptible of judicial determination 231 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Philippine courts may not render advisory opinion. There must always be an actual case or controversy EXCEPT: Int l Court of Justice-principal judicial organ of the United Nations- ICJ may render advisory opinions. Its 2 main functions are: (a) to decide contentious cases; and (b) to render advisory opinions upon reque st of the General Assembly, or the Security Council, or the other organs of the UN when authorized by the General Assembly. A request for an advisory is not an actual case or controversy. But an action for declaratory relief is proper for judicial determination. The issue raised in the case must not be moot and academic, or becau se of subsequent developments, have become moot and academic.

MOOT and ACADEMIC PRINCIPLE General Rule: Court will have to dismiss the case. There is no more actual case to be resolved.

Exceptions: (David vs. GMA) a. Grave violation of the Constitution b. The exceptional character of the situation and the paramount public interest is involved c. Constitutional issue raised requires formulation of guiding a nd controlling constitutional principles, precepts, doctrines or rules a nd the symbolic function to educate the bar and bench and the people on the extent of protection given by the constitutional guarantees d. Case is capable of repetition yet evading reviewit presupposes that:

and i. The life of the controversy is too short to be fully litigated prior to its t ermination, ii. That there is a reasonable expectation that the plaintiff will again be subj ected to the same problem

2. The constitutional question must be raised by the proper partyA proper party i s one who has sustained or is in imminent danger of sustaining an injury as a re sult of the act complained of. (LOCUS STANDI) "Legal Standing"- personal and substantial interest in the case such that the pa rty has sustained or will sustain direct injury as a result of governmental act. A party s standing in court is a procedural technicality which may be set aside by the 232 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos Court in view of the importance of the issues involved. Thus, where the issues r aised by the petitioners are of paramount public interest, the Court may, in the exercise of its discretion, brush aside the procedural barrier. (Kilosbayan vs. Guingona, 232 SCRA 110)

In Sanlakas vs. Executive Secretary, G.R. No. 159085, February 3, 2004, Rep. Sup lico, et al., and Senator Pimentel were considered as proper parties to contest the constitutionality of Pres. Arroyos proclamation of a state of rebelli on after the Oakwood incident. In IBP vs. Zamora, G.R. No. 141284, August 15, 2000, the petition seeking to nul lify the order of Pres. Estrada for the deployment of the Philippine Marines to join the PNP in visibility patrols around Metro Manila area, was dismissed on th e ground that the IBP had no legal standing to question the presidential act.

Lim vs. Executive Secretary (2002)Because of the paramount importance and the con stitutional significance of the issues raised in the Petition, the Court, in the exercise of its sound discretion, brushed aside the procedural barrier and took cognizance of the petitions. Information Technology Foundation vs. COMELEC (2004) the subject matter of the ca se is amatterofpublicconcernandimbuedwithpublicinterest;itisofparamount public i nterest and of transcendental importance. Kilosbayan vs. Morato, 246 SCRA 540, the petitioners do not posses th e legal capacity to institute the action for annulment of the Equipment Lease A greement (ELA) because they are without a presentsubstantialinterest, as distingui shed from mere expectancy, or future, contingent, subordinate or consequential i nterest. present substantial interest means such interest of a party in the subject matter of the action as will entitle him, under substantive law, to recover if the evid ence is sufficient, or that he has a legal title to defend and the defendant wil l be protected in payment to or recovery from him. In Domingo vs. Carague, G.R. No. 161065, April 15, 2005, the petitioners failed to show any direct and personal interest in the COA Organizational Restructuring Plan; there was no indication that they have sustained or are in imminent dange r of sustaining some direct injury as a result of its implementation; and they a dmitted that they do not seek any affirmative relief nor impute any improper or improvident act against the respondents. Clearly, then, they do not have any leg al standing to file the instant suit. In Cutaran vs. DENR, G.R. No. 134958, January 31, 2001, the SC refused to give d ue 233 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos course to a petition seeking to enjoin the DENR from processing the ancestral la nd claim of private respondent over a property located at Camp John Hay reservat ion in Baguio, on the ground that there is no actual or imminent violation of th e petitioners asserted right. Court will not touch an issue involving the validit y of a law unless there has been a governmental act accomplished or performed th at has a direct adverse effect on the legal right of the person contesting its l egality. Until such time, petitioners are simply speculating that they might be evicted from the premises at a future time. General rule: A party can question the validity of a statute only if, as applied to him, it is unconstitutional. Exception: FACIAL CHALLENGE. The statute is absolutely unconstitutional under no circumstance. But the only time a facial challenge to a statute is allowed is w hen it operates in the area of freedom of expression. Invalidation of the statute on its face, rather than as applied is permitted in the interest of preventing a chilling effect on freedom of expression.

Overbreadth Doctrinepermits a party to challenge the validity of a statute even t hough as applied to him, it is not unconstitutional, but it might be if applied to others not before the Courts whose activities are constitutionally protected. In Francisco, Jr. vs. Bayani Fernando, G.R. No. 166501, November 16, 2006, a cit izen can raise a constitutional question only when 1) he can show that he has pe rsonally suffered some actual or threatened injury because of the allegedly ille gal conduct of the government; 2) the injury is fairly traceable to the challeng ed action; and 3) a favorable action will likely redress the injury.

3. The constitutional question must be raised at the earliest opportune time gene rally, the question must be raised in he pleadings; however, in criminal cases, the question can be raised at any time at the discretion of the court; in civil cases, the question can be raised at any stage of the proceedings if necessary for the determination of the case itself; and in every case, except where there is estoppel, it can be raised at any stage if it involves the jurisd iction of the court. In Umali vs. Guingona, G.R. No. 131124, March 21, 1999, the question of constitu tionality of the Presidential Commission on Anti-Graft and Corruption (PCAGC) wa s not entertained because the issue was raised by the petitioner only in his mot ion for reconsideration before the RTC of Makati. It was too late to raise the i ssue for the first time at that stage of the proceedings.

4. The decision on the constitutional question must constitute the very LIS MOTA 234 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos must be determinative of the case itself/entire controversy In Arceta vs. Judge Mangrobang, G.R. No. 152895, June 15, 2004, in a new challenge to the constitutionality of B.P. 22, the SC did not find the constitutional question to be the very lis mota presented in the controver sy. Every law has in its favour the presumption of constitutionality, and to jus tify its nullification, there must be a clear and unequivocal breach of the Cons titution, and not one that is doubtful, speculative or argumentative.

PERIOD FOR DECISION Section 15, Article VIII(1) All cases or matters filed after the effectivity of t his Constitution must be decided or resolved within twenty-four (24) months from date of submission for the SC, and, unless reduced by the SC, twelve months (12 ) for all lower collegiate courts, and three (3) months for all lower courts. (2) A case or matter shall be deemed submitted for decision or resolution upon t he filing of the last pleading, brief, or memorandum required by the Rules of Co urt or by the court itself. (3) Upon the expiration of the corresponding period, a certification to this eff

ect signed by the Chief Justice or the presiding judge shall forthwith be issued and a copy thereof attached to the record of the case or matter, and served upo n the parties. The certification shall state why decision or resolution has not been rendered or issued within said period. (4) Despite the expiration of the applicable mandatory period, the cou rt, without prejudice to such responsibility as may have been incurred in conse quence thereof, shall decide or resolve the case or matter submitted thereto for determination, without further delay. The above provision does not apply to Sandiganbayan. The provision refers to reg ularcourts of lower collegiate level that in the present hierarchy applies only to the Court of Appeals. The Sandiganbayan is a specialcourt of the same level as the Court of Appeals an d possessing all the inherent powers of a court of justice, with functions of a trial court. Thus, the Sandiganbayan is not a regular court but a special one. (Re: Problem o f Delays in Cases Before the Sandiganbayan, A.M. 00-8-05-SC, November 28, 2001)

MEMORANDUM DECISIONS 235 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

A specie of succinctly written decisions by appellate courts in accordance with the provisions of Section 40, BP 129 on the grounds of: 1. Expediency 2. Practicality 3. Convenience 4. Docket status of the Court To be valid, it cannot incorporate the findings of fact and the conclusions of l aw of the lower court only by remote reference, which is to say that the challen ged decision is not easily and immediately available to the person read ing the memorandum decision. For the incorporation by reference to be allowed, it must provide for direct access to the facts and the law being adopted, which must be contained in a statement attached to the said decision. In other words, the memorandum decision authorized under Section 40 of BP 129 should actually e mbody the findings of fact and conclusions of law of the lower court in an annex attached to and made an indispensable part of the decision. Distinctive Features and Purpose: 1. It is rendered by an appellate court. 2. It incorporates by reference the findings of facts or the conclusions of law contained in the decision, order, or ruling under review. This is to avoid cumbe rsome reproduction of the decision of the lower court, or portions thereof, in t he decision of the higher court. The idea is to avoid having to repeat in the bo dy of the higher court decision the findings or conclusions of the lower court s

ince they are being approved or adopted anyway. 3. The purpose is to affirm the decision, although it is not impossible that th e approval of the finding of facts by the lower court may lead to a different co nclusion of law by the higher court. (Yao vs. CA, 344 SCRA 202, October 24, 2000)

Article IX CONSTITUTIONAL COMMISSIONS

Independent Constitutional Commissions: 1. Civil Service Commission 2. Commission on Elections 3. Commission on Audit Safeguards that guarantee the independence of the Commissions: 236 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos 1. They are constitutionally created; may not be abolished by a statute; 2. Each is conferred certain powers and functions which cannot be reduced by st atute; 3. Each expressly described as independent; 4. Chairmen and members are given fairly long term of office for seven (7) year s; 5. Chairmen and members cannot be removed except by impeachment; 6. Chairmen and members may not be reappointed or appointed in an acting capacit y; 7. Salaries of chairmen and members are relatively high and may not be decrease d during continuance in office; 8. Commissions enjoy fiscal autonomy; 9. Each commission may promulgate its own procedural rules; 10. Chairmen and members are subject to certain disqualifications calcula ted to strengthen their integrity; and 11. Commissions may appoint their own officials and employees in accordance with Civil Service Law. Prohibitions and Inhibitions: No member of a Constitutional Commission shall, during his tenure: 1. Hold any other office or employment; 2. Engage in the practice of any profession; 3. Engage in the active management and control of any business which in any way may be affected by the functions of his office; and 4. Be financially interested, directly or indirectly, in other contract with, o r in any franchise or privilege granted by the government, any of its subdivisio n, agencies or instrumentalities, including GOCCs or their subsidiaries.

CHR Employees Association vs. CHR, G.R. No. 155336, November 24, 2004, the Commi ssion on Human Rights, unlike the three Constitutional Commissions, does not enj

oy fiscal autonomy. Civil Service Commission vs. DBM, G.R. No. 158791, July 22, 2005, the no report, no release policy may not be validly enforced against offices vested with fiscal autonomy, without violating Sec. 5, Article IX-A of the Constitution. The automat ic release of approved annual appropriations to petitioner, a constitutional comm ission vested with fiscal autonomy should thus be construed to mean that no cond ition to fund releases to it may be imposed. However, petitioners claim that its budget may not be reduced by Congress below the amount appropriated for the prev ious year, as in the case of Judiciary, must be rejected. The provision in Secti on 3 of Article VIII, prohibiting the reduction in the appropriation for the Jud iciary below the amount appropriated for the previous year does not appear in Se ction 5, Article IX-A. The plain implication of this omission is that Congress i s not prohibited from reducing the appropriations of Constitutional Commissions below the amount appropriated for them for the previous

237 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos year. Certiorari Jurisdiction of the Supreme Court Limited to decisions rendered in actions or proceedings taken cognizance of by t he Commissions in the exercise of their adjudicatory or quasi-judicial functions. I t does not refer to purely executive powers. Hence, questions arising from the a ward of a contract for construction of voting booths can be brought before the t rial court. (Ambil vs. COMELEC, G.R. No. 143398, October 5, 2000)

CIVIL SERVICE COMMISSION Composition: 1 Chairman; 2 Commissioners

Qualifications: 1. Natural-born citizen; 2. At least 35 years of age at the time of appointment; 3. With proven capacity for public administration; and 4. Not a candidate for any elective position in the election immediately preced ing the appointment. Term: Seven (7) years without reappointment Scope of the Civil Service: Embraces all branches, subdivisions, instrumentaliti es and agencies of the Government, including government-owned and controlled cor porations with original charters [Section 2(1), Article IX-B] Classes of Service: Career Servicecharacterized by: a. Entrance based on merit and fitness to be determined by competitive examinat ion or based on highly technical qualification; b. Opportunity for advancement; and c. Security of tenure. Kinds of Career Service: Open Career Positionsprior qualification via examination; Closed Career Positionst hose highly technical position; Career Executive ServiceUndersecretaries, Bureau Directors; Career Officersthose appointed by the President like those in the foreign service ; Commissioned Officers and enlisted men of the AFPgoverned by 238 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos separate merit system; Personnel of GOCCswhether performing governmental or proprietary functions, wi th original charters; and Permanent laborerswhether skilled, semi-skilled, or unskilled. Non-Career Servicecharacterized by: a. Entrance on bases other than those of the usual tests of merits and fitness utilized for the career service; and b. Tenure which is limited to a period specified by law, which is co-terminus w ith that of the appointing authority or subject to his pleasure, or which is lim ited to the duration of a particular project for which purpo se employment was made. Kinds of Non-Career: Elective official and their personal or confidential staff; Department heads and other officials of Cabinet rank who hold positions at the pleasure of the President and their personal or confidential staff; Chairmen and members of commissions and boards with fixed terms of office and th eir personal or confidential staff; Contractual personnel or those whose employment in the government is in accordan ce with a special contract to undertake a specific work or job; and Emergency and seasonal personnel.

Exceptions to the requirement of Competitive Examinations:

1. Policy-determining Positionone charged with laying down of principal or fundam ental guidelines or rules; 2. Primary Confidential Positionone denoting not only confidence in the aptitude of the appointee for the duties of the office but primarily close intim acy which ensures freedom of intercourse without embarrassment or freedom from m isgiving or betrayals of personal trust on confidential matters of state, or one declared to be so by the President upon recommendation of the Civil Service Com mission. 3. Highly Technical Positionrequires the appointee to possess technical skill or training in the supreme or superior degree.

CSC vs. Engr. Darangina, G.R. No. 167472, January 31, 2007, where a non-eligible holds a temporary appointment, his replacement by another non-eligible is not prohibited. When a temporary appointee is required to relinquish his of fice, he is being separated precisely because his term has expired.

239 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Tanjay Water District vs. Quinit, Jr. G.R. No. 160502, April 27, 2007, it is an established rule that the tenure of office of those holding primarily confidenti al positions ends upon loss of confidence, because their term of office lasts on ly as longs as confidence in them endures. Their termination can be justified on the ground of loss of confidence, in which case, their cessation from office involves no removal but the expiration of their term of office.

Power to approve/disapprove appointments The authority of CSC to approve appointmentsto check whether or not the appointee possesses the appropriate civil service eligibility or the required qualificati on does not include the authority to make the appointment itself or to d irect the appointing authority to change the employment status of an employee. The CSC can only inquire into the eligibility of the person chosen to fill a pos ition and if it finds the person qualified, it must so attest. If not, the appoi ntment must be disapproved. (Province of Camarines Sur vs. CA, G.R. No. 104639, July 14, 1995)

In the case of Lopez vs. CSC, 194 SCRA 269, the SC held that the CSC has no powe r to revoke an appointment simply because it believes that the person protesting the appointment or somebody is better qualified, for that will constitute an en croachment of the discretion vested solely in the appointing authority.

COMMISSION ON ELECTION

Composition: One (1) Chairman Six (6) Commissioners Qualifications: 1. Natural-born citizen; 2. At least 35 years of age at the time of appointment; 3. With proven capacity for public administration; and 4. Not a candidate for any elective position in the election immediately preced ing the appointment. 5. Majority, including the Chairman, must be members of the Philippine Bar who have been engaged in the practice of law for at least ten (10) years. 240 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Term: Seven (7) years without reappointment Section 1, par. 2, Article IX-CChairman and Commissioners of COMELEC are not subject to re-appointment (See the case of Matibag vs. Benipayo re: ad interim appointment)

The COMELECs exercise of its quasi-judicial powers is subject to Section 3, Artic le IX- C which expressly requires that: 1. All elections cases, including pre-proclamation controversies, shall be decided by the COMELEC in division, and 2. The motion for reconsideration shall be decided by the COMELEC en banc. The prosecution of election law violators involves the exercise of the COMELECs administrative powers. Thus, the COMELEC en banc can directly approve the recommendation of its Law Department to file the criminal informati on for double registration against violators. There is no constitutional require ment that the filing of the criminal information be first decided by any of the divisions of the COMELEC. (Baytan vs. COMELEC, G.R. No. 153945, February 4, 2003 ) In Vinzons-Chato vs. COMELEC, G.R. No. 172131, April 2, 2007, once the winning c andidate has been proclaimed, taken his oath, and assumed office as a Mem ber of the House of Representatives, the COMELECs jurisdiction over election cont ests relating to his election, returns, and qualifications ends, and the HRETs ow n jurisdiction begins. In Quizon vs. COMELEC, G.R. No. 177927, February 17, 2008, the denial of due cou rse or cancellation of ones certificate of candidacy is not within the administra

tion powers of the Commission, but rather calls for the exercise of its quasi- j udicial functions. Hence, the Court may compel COMELEC to exercise such discreti on and resolve the matter but it may not control the manner of exercising such d iscretion. Powers and Functions: 1. Enforce and administer law and regulations relative to the conduct of electi ons, plebiscite, initiative, referendum or recall; 2. Exclusive original jurisdiction over all contests relating to election, retu rns and qualifications of all elective regional, provincial, and city officials; 3. Exclusive appellate jurisdiction over all contests involving elective municipal officials decided by the RTC, or involving elective barangay officia ls by MTC; 4. Decide, except those involving right to vote, all questions affecting electi ons, including the determination of number and location of polling places, appoi ntment 241 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos of election officials and inspectors and registration of voters; 5. Deputize, with concurrence of President, law enforcement agencies and instrum entalities for exclusive purpose of insuring free, orderly, honest, peaceful and credible elections. 6. Register, after sufficient publication, political parties, organizations or coalitions which must present their platform or program government; accr edit citizens arms; 7. File upon verified complaint or motu proprio petitions in court for inclusio ns or exclusions of voters; investigate and, where appropriate, prosecute cases of violations of election laws; 8. Recommend to Congress effective measures to minimize election spending, limit ation of places and prevent and penalize all forms of election frauds , offenses, malpractice and nuisance candidates; and 9. Submit to the President and Congress, comprehensive reports on conduct of ea ch election, plebiscite, initiative, referendum or recall.

COMMISSION ON AUDIT Composition: One (1) Chairman Two (2) Commissioners

Qualifications: 1. Natural-born citizen; 2. At least 35 years of age at the time of appointment; 3. CPA with at least ten (10) years auditing experience or members o f the Philippine Bar with at least ten (10) years practice of law; at no time s hall all members belong to the same position; and 4. Not a candidate for any elective position in the election immediately preced ing the appointment. Term: Seven (7) years without reappointment 242 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos Powers and Duties: 1. Examine, audit and settle all accounts pertaining to revenue and receipts of , and expenditures or uses of funds and property owned or held in trust or perta ining to government; 2. Keep general accounts of government and preserve vouchers and supporting pap ers; 3. Authority to define scope of its audit and examination, establish techniques and methods required therefore; and 4. Promulgate accounting and auditing rules and regulations, including those fo r preservation and disallowance. Jurisdiction of the Commission: No law shall be passed exempting any entity of t he Government, or any investment of public funds, from the jurisdiction of the COA. (Sec. 3, Article IX-C) Temporary or Acting capacity appointment by the President to the COMELEC, COA, CS C is prohibited by the Constitution. In Brillantes vs. Yorac, 192 SCRA 358, the designation of Commissioner Yorac as Acting Commissioner of the COMELEC was a violation of Section 1, paragraph 1 of Article IX-C. Fiscal Autonomy The 1987 Constitution expressly and unambiguously grants fiscal autonomy only to Judiciary, the constitutional commissions, and the Office of Ombudsman. The Com mission on Human Rights has no fiscal autonomy. (CHR Employees Association vs. CH R, G.R. No. 155336, July 21, 2006) Article X LOCAL GOVERNMENT (In relation to Republic Act No. 7160Local Government Code)

Public Corporationone created by the state either by general or special act for p urposes of administration of local government or rendering service in the public interest. De Facto Municipal Corporationsthose where the people have organized themselves,

under color of law, into ordinary municipal bodies exercising their powers, with their rights dependent quite as much as on acquiescence as on the regularity of their origin. Requisites: 1. Valid law authorizing incorporation; 2. Attempt in good faith to organizing under it; 3. Colorable compliance with law; and 4. Assumption of corporate powers. 243 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Local Governmentdescribed as a political subdivision of a nation or state which i s constituted by law and has substantial control of local affairs. These subdivisions are the following: 1. Provinces; 2. Cities; 3. Municipalities; 4. Barangays; 5. Autonomous Region of Muslim Mindanao (ARMM); 6. Cordillera Administrative Region (CAR); 7. Special metropolitan political subdivisions; Created for the sole purpose of coordination of delivery of basic services. 8. Sub-provinces (as recognized by Article XVIII) Barangaythe basic political and territorial self-governing body corporate and is subordinate to the municipality or city of which it forms part. Autonomous regionconsists of provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics within the framework o f the constitution and the national sovereignty as well as the territorial integ rity of the republic of the Philippines. Administrative regionsare mere groupings of contiguous provinces for admin istrative purposes. They are not territorial and political subdivisions like pro vinces, cities, municipalities and barangays. While the power to merge administr ative regions is not expressly provided for in the Constitution, it is a power w hich has traditionally been lodged with the President to facilitate the exercise of the power of general supervision over local governments. Devolutionrefers to the act by which the national government confers power and au thority upon the various local government units to perform specific functions an d responsibilities. [Section 17 (e, 2nd paragraph), LGC] Section 4, Article XThe President of the Philippines shall exercise general super vision over local governments. Provinces with respect to component cities and mu nicipalities, and cities and municipalities with respect to component barangays shall ensure that the acts of their component units are within the scope of thei r prescribed powers and functions. (See the case of Judge Dadole on page 213) Section 6, Article XA share in the national taxes collected by the na tional government is another source of revenue for local units. The amount will

be as determined by law. This is distinct from the taxes which the local governmen t itself 244 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos might impose. Section 7, Article XAnother source of revenue for local governments is the share in the proceeds from the exploitation and development of natural resources found within the locality. This can take the form of financial benefits for the local units coming from a share in fees, charges, and other incomes coming from devel opment, and it can also take the form of direct benefit for the population comin g in the form, for instance, of cheaper electric power rates of energy sourced i n the locality, or priority in employment. This can be effected either through n ational or local laws. Section 8, Article Xthe term of office of elective local officials, except barang ay officials, which shall be determined by law, shall be three years and no such officials shall serve for more than three consecutive terms. Voluntary renuncia tion of the office for any length of time shall not be considered as an interrup tion in the continuity of his service for the full term for which he was elected . Section 8 cannot be more clear and explicitthe term of office of elected local of ficials, shall be 3 years and no such officials shall serve for more than 3 cons ecutive terms. Upon the other hand, Section 43 (d) of the Local Government Code clearly provides than no local official shall serve for more than three (3) cons ecutive terms in the same position. (Atty. Rivera III vs. COMELEC, G.R. Nos. 167 591 and 170577, May 9, 2007) Section 10Creation, division, merger, abolition, substantial change of boundaries are not only subject to the criteria established in the local government code b ut also subject to approval by a majority of the votes cast in a plebiscite in t he political units directly affected. Authority to Create Local Government A local government unit may be created, divided, merged, abolished, or its bound aries substantially altered: 1. Province, City, Municipality or any other political subdivisiononly by Act of Congress 2. Barangaysordinance passed by the Sangguniang Panlalawigan or Pangl ungsod concerned in the case of any barangay within its territorial jurisdiction The creation or conversion of an LGU from one level to another level shall be ba sed on verifiable indicators: a. Incomemust be sufficient, to provide for all essential facilities an d services commensurate with the size of its population; b. Populationbased on total number of inhabitants within the territorial jurisdi ction of the LGU; c. Land areamust be contiguous, unless it comprises two or more islands or is s eparated by an LGU; properly identified by metes and bounds; and

245 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos sufficient to provide for such basic services and facilities. Division and MergerLGU shall comply with the same requirements for their creation , provided it shall not reduce the income, population and land area of LGUs conc erned to less than the minimum requirements prescribed; plebiscite be held in LG U affected; and the assets and liabilities of creation shall be equitably distri buted between the LGUs affected and the new LGU. Province Municipality nized Barangay As to Income P20,000,000.00 P2,500,000.00 City Highly urba

P100,000,000.00

P50,000,000.00

As to Population 250,000 25,000 150,000 2,000 (except Metro Manila or in HUCs, 5,000)

200,000

2,000 sq. kms. (not applicable if proposed province to be created composed of 2 or more islands) 50 sq. kms. (not applicable if proposed municipality to be created composed of 2 or more islands) As to Land Area 100 sq. kms. (not applicable if proposed city to be created composed of 2 or more islands) 100 sq. kms. Requisites before a province, city, municipality, or barangay may be created, di vided, merged, abolished, or its boundary substantially altered: 1. It must be in accordance with the criteria established in the Local Governme nt Code; 2. It is subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected. (Section 10, Article X) Classification of Cities: 1. Highly urbanized cities as determined by law; 2. Cities not raised to the highly urbanized category but whose existing charte rs prohibit their voters from voting in provincial elections; and

3. Component citiescities which still are under a province in some way. They can not be denied a vote in the election of provincial officials. Those in numbers 1 and 2 do not vote in provincial elections, they are independe nt of the province. Residents are not qualified to run for provincial positions. 246 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos Abolitionwhen the income, population or land area has been irreversibly reduced t o less than the minimum standards prescribed for its creation, the LGU, thru a l aw or ordinance, may be abolished.

LOCAL OFFICIALS 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. Governor Vice-Governor Members of the Sangguniang Members of the Sangguniang Mayor Vice-Mayor Members of the Sangguniang Punong Barangay Members of the Sangguniang Sangguniang Kabataan

Panlalawigan Panlungsod Bayan barangay

QUALIFICATIONS: 1. Citizens of the Philippines; 2. Registered voter in the barangay, municipality, city or province, or in the case of a member of the SG Panlalawigan, Panlungsod, or Bayan, in the district w here he intends to be elected; 3. Resident therein for at least 1 year immediately preceding election; 4. Able to read and write Filipino or any other local language or dialect; 5. On election day, age must at least be: a. 23 yearsfor governor, vice-governor, member of the SG panlalawigan, mayor, vi ce-mayor, or member of the SG panlungsod of HUC; b. 21 yearsfor mayor, vice-mayor of independent component cities (ICC), componen t cities (CC), or municipalities; c. 18 yearmembers of the SG panlungsod or SG Bayan, Punong Barangay, member of the Sangguniang Pambarangay d. 15 years but not more than 1 8 yearsfor SK TERM OF OFFICE: THREE (3) YEARS MANNER OF ELECTION: 1. For governor, vice-governor, city or municipal mayor and vice-mayor, punong barangayelected at large in their respective units; 2. For the SG panlalawigan, panlungsod and bayan of HUCelected in thei r respective district; 3. For SK Chairman and Memberselected by the registered voters of the Katipunan ng mga kabataan.

247 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

DISQUALIFICATIONS: (Read Section 40, LGC) PROHIBITONS AND INHIBITIONS: (Read Sections 89, 90 and 94 of the LGC and Article V) Autonomyis either decentralization of administration or decentralization of power . decentralization of administration decentralization of power The central government delegates administrative powers to political subdivisions in order to broaden the base of government and in the process to make local gov ernments more responsive and accountable, and ensure their fullest development a s self-reliant communities and make them more effective partners in the pursuit of national development and social progress. At the same time, it relieves the c entral government of the burden of managing local affairs and enables it to conc entrate on national concerns. The President exercises general supervision over t hem, but only to ensure that local affairs are administered according to law. He has no control over their acts in the sense that he can substi tute their judgments with his own. It involves an abdication of political power in favor of the local government units declared autonomous. In that case, the autonomous government is free to chart its own destiny and shape its own future with minimum interv ention from central authorities. It amounts to self- immolation, since in that e vent, the autonomous government becomes accountable not to the central authoriti es but to its constituency.

What kind of local autonomy is contemplated by the Constitution? What about the a utonomy contemplated insofar as the autonomous regions are concerned? 1. The principle of local autonomy under the 1987 Constitution simply means decen tralization. It does not make local governments sovereign within the state or an i mperium in imperio. Remaining to be an intra sovereign subdivision of one soverei gn nation; but not intended, however, to be an imperium in imperio, the LGU is aut onomous in the sense that it is given more power, authority, responsibilities an d resources. Power which used to be highly centralized in Manila, is thereby dec oncentrated, enabling especially the peripheral LGUs to develop not only at thei r own pace and discretion but also with their own resources and assets. (Alvarez vs. Guingona, Jr. 252 SCRA 695) 2. The constitutional guarantee of local autonomy in the Constitution refers to

the administrative autonomy of LGUs or, cast in more technical language, the de centralization of government authority.

248 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

On the otherhand, the creation of autonomous regions in Muslim Mindanao and the Cordilleras, which is peculiar to the 1987 Constitution, contemplates the grant of political autonomy and not just administrative autonomy to these regions. Thu s, the provision in the Constitution for an autonomous regional government with a basic structure consisting of an executive department and a legislative assemb ly and special courts with personal, family and property law jurisdiction in eac h of the autonomous regions. (Cordillera Broad Coalition vs. COA 181 SCRA 495) The dynamic and more important aspect of local autonomy must be measured in term s of the scope of the powers given to the local units. Batangas CATV, Inc. vs. CA, G.R. No. 138810, September 29, 2004, an ordinance en acted by virtue of the general welfare clause is valid, unless it contravenes th e fundamental law of the Philippines, or an act of the Legislature, or unless it is against public policy, or is unreasonable, oppressive, partial, discriminati ng, or in derogation of common right. A local government unit cannot enact an ordinance or approve a resolution in vio lation of a general law. Municipal authorities, under a general grant of power, cannot adopt ordinances which infringe the spirit of a state law or repugnant to the general policy of the state. It is clear that in the absence of constitutio nal or legislative authorization, municipalities have no power to grant franchis es.

SJS vs. Atienza, Jr. G.R. No. 156052, March 7, 2007, the Sangguniang Panlungsod shall enact such ordinances as may be necessary to carry into effect and dischar ge the responsibilities conferred upon it by law, and such as shall be necessary and proper to provide for the health and safety, comfort and convenience, maint ain peace and order and promote the general welfare of the community and inhabit ants. There is a duty to enforce the Ordinance as long as it has not bee n repealed by the Sanggunian or annulled by the courts.

DAR vs. Saranggani Agricultural Co., January 24, 2007, while the DAR retains the responsibility for approving or disapproving applications for land use conversi on filed by individual landowners on their landholdings, the exercise of such au thority should be confined to compliance with the requirements and limitations u nder existing laws and regulations. The DARs power in such cases may not be exerc ised in such a manner as to defeat the very purpose of the LGU concerned in recl assifying certain area to achieve social and economic benefits in pursuit of its mandate towards the general welfare.

Police power of the Local Government A local government is considered to have properly exercised its police powers

249 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos only when the following requisites are met: 5. The interests of the public generally, as distinguished from those of a particular class, require the interference of the State; Refers to the equal protection clause 6. The means employed are reasonably necessary for the attainment of the object sought to be accomplished and not unduly oppressive. Refers to the due process clause (Parayno vs. Jovellanos, G.R. No. 148408, July 14, 2006) The exercise of police power by the local government is valid unless it contrave nes the fundamental law of the land, or an act of the legislature, or unless it is against public policy, or is unreasonable, oppressive, partial, discriminatin g, or in derogation of a common right. (Tayaban vs. People, G.R. No. 150194, Mar ch 6, 2007)

Have the powers of LTO to register motor vehicles and to issue drivers licenses for the operation thereof been devolved to local governments under the Local Government Code? No. The only powers of the Land Transportation Franchising Regulatory Board (LTFRB) to regulate the operation of tricycles-for-hire and to grant franc hises for the operation thereof had been devolved to local governments under the Local Government Code (RA 7160). Clearly unaffected by the LGC are the powers o f the LTO under RA 4136 requiring the registration of all kinds of motor vehicles used or operated o n or upon any public highway in the country. (LTO vs. City of Butuan, G.R. No. 13 1512, January 20, 2000)

Is the MMDA a local government unit or public corporation endowed with legislativ e power? Is it a special metropolitan subdivision contemplated by Section 11, Ar ticle X of the Constitution? May it validly exercise police power? May it validl y order the opening or closure of private subdivision streets to public vehicula r traffic? The MMDA is not a political unit of government. The power delegated to the MMDA is given to the Metro Manila Council to promulgate administrative rules and regu lations in the implementation of the MMDAs function. There is no grant of authori ty to enact ordinances and regulations for the general welfare of the inhabitant s of the metropolis.

It is thus beyond doubt that the MMDA is not a local government unit or a public corporation endowed with legislative power. It is not even a special metropolitan political subdivision as contemplated in Section 11, Article X of th e Constitution. The

250 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos creation of a special metropolitan political subdivision requires the approval by a majority of the votes cast in a plebiscite in the political units directly affected. RA 7924 (law creating the MMDA) was not submitted to the inhabitants of Metro Manila in a plebiscite. The Chairman of the MMDA is not an official ele cted by the people, but appointed by the President with the rank and privileges of a cabinet member. In fact, part of his function is to perform such other duti es as may be assigned to him by the President, whereas in LGUs, the President me rely exercises supervisory authority. This emphasizes the administrative charact er of MMDA. The MMDA has no power to enact ordinances for the welfare of the community. It i s the LGUs, acting through their respective legislative councils, which possesse s legislative power and police power. In the case at bar, the Sangguniang Panlun gsod of Makati City did not pass any ordinance or resolution ordering the openin g of Neptune Street, hence, its proposed opening by petitioner MMDA is illegal. (MMDA vs. Bel-Air Village Association, Inc. 328 SCRA 836)

LAW OF PUBLIC OFFICERS

Public Officethe right, authority and duty created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the crea ting power, an individual is invested with some sovereign functions of governmen t to be exercised by him for the benefit of the public. (Fernandez vs. Sto. Toma s, 234 SCRA 546) Public office is a public trustthis requires that all government officials and em ployees must at all times be accountable to the people, serve them with utmost r esponsibility, integrity, loyalty and efficiency, act with patriotism and justic e, and lead modest lives. Public trustimplies a fiduciary relationship between a public officer, who is a t rustee, and the people, who are the beneficiaries, of a public office. Said rela tionship makes the public officer the servant of the people, requires of him: a. Utmost responsibility; b. Integrity; c. Loyalty; d. Efficiency;

e. Fidelity; f. Good faith; and g. Accountability in the discharge of his duties 251 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos and demands that he takes no advantage of his position for his personal benefit or to the prejudice of the public. Created by: 1. The Constitutione.g. Office of the President; 2. Valid statutory amendments; 3. By authority of law. Elements of Public Office: 1. Created by law or ordinance authorized by law; 2. Possesses sovereign functions of the government; 3. Functions defined expressly or impliedly by law; 4. Functions exercised by an officer directly under the control of law, not und er a superior officer unless they be those of an inferior or subordinate office created or authorized by the legislature, and by it placed under the general con trol of a superior office or body; and 5. Must have permanency or continuity. Characteristics: 1. Public office is a public trust; 2. Public office is not a property and is outside the commerce of man. It canno t be subject of a contract. PUBLIC OFFICERSindividuals vested with public office. Under RPC, Art. 203any person who, by direct provision of law, popular election or appointment by competent authority, shall take part in the performa nce of public functions in the Government of the Philippine Islands, or shall pe rform 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 p ublic officer. Under Sec. 2, RA 3019the term includes elective and appointive officials and empl oyees, permanent or temporary, whether in the classified, unclassified or exempt service, receiving compensation, even nominal, from the government. Khan, Jr. vs. Office of the Ombudsman, G.R. No. 125296, July 20, 2006, in the ca se of officers/employees in GOCCs, they are deemed public officers if their corpor ations are tasked to carry out governmental functions.

252

2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos classified, unclassified or exempt serviceCareer and Non-Career service under PD 807 Sec. 2 (14), Administrative Codeofficer refers to a person whose duties not being a clerical or manual nature, involve the exercise of discretion in the performanc e of the functions of government. When used with reference to a person having au thority to do a particular act or perform a particular function in the exercise of governmental power, officer includes any government employee, agent or body hav ing authority to do the act or exercise that function.

ELIGIBILITY AND QUALIFICATION (Legislative in naturebelongs to Congress)

Two (2) Senses: 1. Endowments, qualities or attributes which make an individual eligible for pu blic officethe individual must possess the qualifications at the time of appointm ent or election and continuously for as long as the official relationship contin ues; a. Citizenshippublic office is reserved only to citizens of the Philippines b. Residenceelective office or position; in Civil Law, residence and domicile ar e different. One can have 1 domicile but several residences. In Political Law, t hey are the same. ANIMUS REVERTENDIthe intent to return 3 kinds of domicile in Political Law: i. Domicile of birth (original) ii. Domicile of choicethe person left the original domicile without Animus Revertendi and established a new domicile iii. Domicile by operation of law Marcos vs. COMELECformer First Lady Imelda Marcos originally domicile d in Leyte. She married FM (from Ilocos). Under the Civil Code, it is the duty o f the wife to live with her husband. She acquired the domicile of her husb and, Ilocos Norte, by operation of law. But when her husband died, the wife has no more duty to live with her husband. S he automatically reverts back to her original domicile, Leyte. Animus Revertendi is applied. 253 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos Caasi vs. COMELECresidence in a foreign country c. Age

d. Political Affiliationas a rule, it is not a qualification. Exceptions: in Party-List, Membership in the Electoral Tribunal, Commission on a ppointment 2. Act of entering into the performance of functions of public officefailure of an officer to perform an act required by law could affect the officers title to t he given office. (example: taking the oath of office)

Authority to Prescribe Qualification: 1. Constitutionordinarily, EXCLUSIVE. The legislature may not increase or decreas e qualifications except when the Constitution itself provides otherwise as when only minimum or no qualifications are prescribed. Examples: Sec. 17 (2) Art. XIII (Human Rights) The Commission shall be composed o f a Chairman and four Members who must be natural-born citizens of the Philippin es and a majority of whom shall be members of the Bar. The term of office and ot her qualifications and disabilities of the Members of the Commission shall be pr ovided by law. Section 7 (2), Article VIII The Congress shall prescribe the qualifications of ju dges of lower courts, but no person may be appointed judge thereof unless he is a citizen of the Philippines and a member of the Philippine Bar. 2. StatuteCongress has the plenary power to prescribe the qualification but such must be: a. Germane to the purpose of the office; b. Not too specific so as to refer to only one individual. In Lecaroz vs. Sandiganbayan, G.R. No. 130872, March 25, 1999, an oath of office is a qualifying requirement for public office. Only when the public officer has satisfied this prerequisite can his right to enter into the position be conside red plenary and complete. Until then, he has none at all, and for as long as he has not qualified, the holdover officer is the rightful occupant. An oath of off ice taken before one who has no authority to administer is no oath at all. However, in Mendoza vs. Laxina, G. R. No. 146875, July 14, 2003, once proclaime d and duly sworn in office, a public officer is entitled to assume office and to 254 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos exercise the functions thereof. The pendency of an election protest is not suffi cient basis to enjoin him from assuming office or from discharging his functions . Sec. 5 (1), Art. XVIAll members of the armed forces shall take an oath or affirma tion to uphold and defend this Constitution.

Q: A was elected/appointed to public office. He assumed office without taking t he oath of office as prescribed by the Constitution and relevant CSC rules and r egulations. Are his acts valid?

A: Yes, As acts are considered valid, insofar as third parties and the general pu blic are concerned/rely on his actsacts of a De Facto officer. (See the case of Office of the Ombudsman vs. CSC, G.R. No. 162215, July 30, 2007 )

DISQUALIFICATIONS The legislature has the right to prescribe disqualifications in the same manner that it can prescribe qualifications, provided that the prescribed disqualificat ions do not violate the Constitution. General Disqualifications under the Constitution 1. Sec. 6, Art. IX-B No candidate who has lost in any election shall, within one year after such election, be appointed to any office in the Government or any G OCCs or in any of its subsidiaries. 2. Sec. 7 (1), Art. IX-Brefers to elective officialsNo elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure. In the case of Flores vs. Drilon, G.R. No. 104732, June 22, 1993, RA 7227creating the SBMA, one provision states that Mayor Dick Gordon shall be appoi nted as Chairman and Chief Executive of the SBMA. The SC ruled for the constitut ionality of his appointment as the first Administrator of the SBMA. He was allow ed to act as Chairman in an ex-officio capacity. Section 7(1) of Article IX-B of the Constitution refers to elective officials. The second paragraph, refers to appointive officials, made two exceptions: a. Unless otherwise allowed by law; or b. Unless otherwise allowed by the primary function of his position. Hence, Mayor Gordons appointment is valid. 255 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos 3. Sec. 7 (2), Art. IX-BUnless otherwise allowed by law or by the pr imary functions of his position, no appointive officials shall hold any other of fice or employment in the Government or any subdivision, agency or instrumentali ty thereof, including GOCCs or their subsidiaries. National Amnesty Commission vs. COA, G.R. No. 156982, September 8, 2004, when an other office is held by a public officer in an ex-officio capacity, as provided by law and as required by the primary functions of his office, there is no viola tion, because such other office does not comprise any other position. The ex-offic io position is actually and, in legal contemplation, part of the princip al office. But the official concerned is not entitled to receive additional compensation for his services in the said position because his services are alre

ady paid for and covered by the compensation attached to his principal office.

Specific Disqualifications under the Constitution 1. Sec. 13, Art. VIIThe President, VP, Member of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in the Constitution, hold an y other office or employment during their tenure. 2. Sec. 13, Art. VI No Senator or Member of the HOR may hold any other office or employment in the government, or any subdivision, agency or instrumentality the reof, including GOCCs or their subsidiaries, during his term without forfeiting his seat. Neither, shall he be appointed to any office which may have been creat ed or the emoluments thereof increased during the term for which he was elected. Incompatible Office Forbidden Office - No Senator or Member of the HOR may hold any other office or employment in the government, or any subdivision, agency or instrumentality thereof, includin g GOCCs or their subsidiaries, during his term without forfeiting his seat. - The purpose is to prevent him from owing loyalty to another branch of the gove rnment, to the detriment of the independence of the legislature and the doctrine of separation of powers. - Neither, shall he be appointed to any office that has been created or the emol uments thereof have been increased during the term for which he was elected.

-the purpose is to prevent trafficking in public office. -what is prohibited is the simultaneous holding of that office and the seat in -what is prohibited is the appointment to the office during the term for which

256 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos Congress. Any legislator may hold another office or employment in the government provided he forfeits his seat in the Congress. he was elected, when such office was created or its emoluments were increased. 3. Sec. 12, Art. VIIIThe Members of the SC and of other courts established by la w shall not be designated to any agency performing quasi-judicial or administrat ive functions. 4. Sec. 2, Art. IX-ANo Member of a Constitutional Commission shall, during his t enure, hold any other office or employment. The same disqualification applies to the Ombudsman and his DeputiesSec. 8, Art. XI. 5. Sec. 11, Art. XIThe Ombudsman and his Deputies shall not be qualified to run for any office in the election immediately succeeding their cessation from offic

e. 6. Sec. 1, Art. IX-B; Art. IX-C; Sec. 1, Art. IX-D; Sec. 8, art. XIMembers of th e Constitutional Commissions, the Ombudsman and his Deputies must not have been candidates for any elective position in the elections immediately preceding thei r appointment. 7. Sec. 1 (2), Art. IX-B; Sec. 1 (2), Art. IX-C; Sec. 1 (2), Art. IX-D; Sec. 11 , Art. XI-- Members of the Constitutional Commissions, the Ombudsman and his Deputies are appointed to a term of seven (7) years without reappointment. 8. Sec. 13, Art. VIIthe spouse and relatives by consanguinity or affinity within the fourth civil degree of the President shall not, during his tenure, be appoi nted as Members of the Constitutional Commissions, or the Office of the Ombudsma n, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including GOCCs. Public Interest Center, Inc. vs. Magdangal Elma, G.R. No. 138965, March 5, 2007, the concurrent appointments of respondent as PCGG Chairman and Chief Presidenti al Legal Counsel (CPLC) are unconstitutional. The concurrent appointment to these offices is in violation of Section 7 (2), Article IX-B of the Constit ution, since these are incompatible offices. The duties of the CPLC include givi ng independent and impartial legal advice on the actions of the heads of various executive departments and agencies and reviewing investigations involving h eads of executive departments. Since the actions of the PCGG Chairman, a he ad of an executive agency, are subject to the review of the CPLC, such appointme nts would be incompatible. Disqualifications under the Local Government Code: (Section 40, LGC) The following persons are disqualified from running for any elective local posit ion: 257 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos 1. Those sentenced by final judgment for an offense involving moral turpitude o r for an offense punishable by one year or more of imprisonment, within two (2) years after serving sentence; 2. Those removed from office as a result of an administrative case; 3. Those convicted by final judgment for violating the oath of allegiance to th e Republic; 4. Those with dual citizenship; 5. Fugitive from justice in criminal or non-political cases here or abroad; 6. Permanent residents in a foreign country or those who have acquired the righ t to reside abroad and continue to avail of the same right after the effectivity of this Code; 7. The insane or feeble-minded.

Caasi vs. COMELEC, 191 SCRA 229, to be qualified to run for elective office, the law requires that the candidate who is a green card holder must have waived his

status as a permanent resident or immigrant of a foreign country. The waiver sh ould be manifested by some act or acts independent of and done prior to filing h is certificate of candidacy for elective office. The reason is that residence in the municipality where he intends to run for elective office which is at least one (1) year at the time of the filing of his certificate of candidacy, is one o f the qualifications that a candidate must possess. The mere filing of his COC f or elective office in the country is not sufficient. The election of a candidate who is a green card holder or who has not validly waived his status as a green card holder is null and void.

Rodriguez vs. COMELEC, 259 SCRA 296, the term fugitive from justice includes not o nly those who flee after conviction to avoid punishment but likewise those who, after being charged in the Philippines or abroad, flee to avoid prosecution. Int ent to evade on the part of a candidate must be established by proof that there has already been a conviction or at least, a charge has already been filed, at t he time of flight. He is not a fugitive from justice when, at the time of depart ure from abroad to the Philippines, there is yet no complaint filed against him abroad. In this case, it was established that the case was filed against Rod riguez five (5) months after he had returned to the Philippines. What i s controlling is the intent to evade the California court.

DE FACTO OFFICERS 258 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos One who has reputation of being an officer that he assumes to be, and yet is not an officer in point of law.

Requisites: 1. A valid existing office; 2. Actual physical possession of said office; 3. Color of title to the office, either by: a. Reputation or acquiescence; b. Known or valid appointment or election but officer failed to conform with le gal requirements; c. Known appointment or election but void because of ineligibility of officer o r want of authority of appointing or electing authority or irregularity in appoi ntment or election not known to the public; and d. Known appointment of election pursuant to unconstitutional law before declar ation of unconstitutionality.

De Facto Officer De Jure Officer Usurper/ Intruder the person is in actual possession of office but he merely has a color of title

acts are valid insofar as 3rd parties and the general public is concern but he is not suppose to benefit from his actsagainst public policy. challenged in a direct proceeding where the title he has lawful title to hold office although he may be unlawfully deprived of his office his acts are valid

challenged in a direct proceeding thru quo he is in actual possession of the office without title or colorable title

his acts are entirely void

can be attacked collaterally 259 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos will be the principal issue warranto; cannot be attacked collaterally

Q: Is a de-facto officer lawfully entitled to the salary of the office he is occ

upying? A: No, he is not supposed to benefit from his acts. It is against public policy. Otherwise, it will encourage other people to be a de facto officer that will result to chaos. Exceptions: c. If there is no de-jure officer claiming for the same salary; d. If the assumption/act was done in good faith. Legal Effects of Acts: Valid, binding and with full legal effect insofar as they affect the public. It is intended for the protection of the public and individu als who get involved in the official acts of persons discharging the duties of a public office. (Monroy vs. CA, 20 SCRA 620) General Manager, PPA vs. Monsarate, G.R. No. 129616, April 17, 2002, a rightful incumbent of a public office may recover from a de facto officer the salary rece ived by the latter during the time of his wrongful tenure, even though he (the d e facto officer) occupied the office in good faith and under color of title. Duties of a public officer: A. Constitutional Duties a. To be accountable to the people; to serve them with utmost responsibility, i ntegrity, loyalty and efficiency; to act with patriotism and justice; and to lea d modest lives (Section 1, Article XI). b. To submit a declaration under oath of his assets, liabilities and net worth upon assumption of office and as often thereafter as may be required by law (Sec tion 17, Article XI). c. To owe the State and the Constitution allegiance at all times (Section 18, Article XI). B. Specific Cases: a. The Solicitor Generals duty to represent the government, its offices and inst rumentalities and its officials and agentsexcept in criminal cases or civil cases for damages arising from felonyis mandatory. Although he has discretion in choos ing whether or not to prosecute a case or even withdraw therefrom, such discreti on must be exercised within the parameters set by law and with the best interest of the State as the ultimate goal. (Gonzales vs. Chavez, 205 SCRA 817) b. The government is not stopped from questioning the acts of its officials, mo re so if they are erroneous or irregular (Sharp Intl Mktg. vs. CA, 154 SCRA 88). 260 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos Prohibitions: 1. Engaging in partisan political party except to vote 2. Additional or double compensation 3. Prohibition against loans 4. Laborersshall not be assigned to perform clerical duties 5. Detail or reassignment 6. Nepotism Rights of 1. Right 2. Right 3. Right public officers: to office to salary to preference in promotion

4. 5. 6. 7. his

Right to vacation and sick leave Right to maternity leave Right to retirement pay Othersright to reimbursement for expenses incurred in the due performance of duty; right to be indemnified; right to longevity pay.

COMMENCEMENT OF OFFICIAL RELATIONS A. By Appointment B. By Election APPOINTMENT The selection, by authority vested with power, of individual who is to perform f unctions of a given office. (Binamira vs. Garrucho, G.R. No. July 30, 1990) It is an unequivocal act of designating or selecting by one having the authority therefor of an individual to discharge and perform the duties and functions of an office or trust. The appointment is deemed complete once the last act require d of the appointing authority has been complied with and its acceptance thereaft er by the appointee in order to render it effective. Appointment necessarily cal ls for an exercise of discretion on the part of the appointing authority. Bermudez vs. Torres, 311 SCRA 733, the right of choice is the heart of the power to appoint. In the exercise of power to appoint, discretion is an integral ther eof. Commissionis the written evidence of appointment. Designationis the imposition of additional duties, usually by law, on a person al ready in public office. It presupposes that the person has already been appointed and merely given addit ional function/tasks. 261 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos A mere designation does not confer security of tenure, as the person designated occupies the position only in an acting capacity. (Sevilla vs. CA, 2 09 SCRA 637)

Classification of appointments: 2. Permanentextended to a person possessing the requisite qualification for the position and thus enjoys security of tenure. 3. Temporaryacting appointment given to a non-civil service eligible; is without a definite tenure and is dependent upon the pleasure of the appointing power; 4. Provisionalone which may be issued upon: a. Prior authorization of the Commissioner of the Civil Service b. To a person who has not qualified in an appropriate examination

c. But who otherwise meets the requirements for appointment to a regular posit ion in the competitive service d. Whenever a vacancy occurs e. The filing thereof is necessary in the interest of the service and f. There is no appropriate register of those who are eligible at th e time of appointment. 5. Regularone made by the President while Congress is in session and becomes eff ective after the nomination is confirmed by the Commission on Appointment and co ntinues until the end of the term. 6. Ad-interim a. Recessone made while the Congress is not in session, before confirmation by th e Commission on Appointment; immediately effective; and ceases to be valid if di sapproved or bypassed by CA upon the next adjournment of Congress; b. Midnightmade by the President before his term expires, whether or not it is c onfirmed by the CA Matibag vs. Benipayo, G.R. No. 149036, April 2, 2002(See discussion under Article VII) General Manager, PPA vs. Monsarate, G.R. No. 129616, April 17, 2002, once an app ointment is issued and the moment the appointee assumes a position in the civil service under a complete appointment, he acquires legal, not merely equitable, r ight to the position which is protected not only by statute, but also by the Con stitution, and cannot be taken away from him either by revocation of the appoint ment, or by removal, except for cause, and with previous notice and hearing. Acceptance by appointeepending such acceptance, which is optional to the appointe e, the appointment may still be validly withdrawn. Appointment to a public offic e cannot be forced upon citizen except for purposes of defense of the State unde r Section 4, Article II of the Constitution, as an exception to the rule against involunta ry servitude.

262 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Discretion of appointing authorityappointment is essentially discretionary power and must be performed by the officer in which it is vested according to his best lights, the only condition being that the appointee, id issued a permanent appo intment, should possess the minimum qualification requirements, including Civil Service eligibility prescribed by law for the position. This discretion also inc ludes the determination of the nature or character of the appointment, i.e., whe ther the appointment is temporary or permanent. (Luego vs. CSC, 143 SCRA 327) Acting appointmenta temporary appointment and revocable in character. Double Appointmentnot prohibited as long as the positions involved are not incomp

atible, except that the officer or employee appointed cannot receive additional or double compensation unless specifically authorized by law. Primarily confidential Positionsdenotes not only confidence in the aptitude of th e appointee for the duties of the office but primarily close intimacy which insu res freedom of intercourse without embarrassment or freedom from misgivings of b etrayals of personal trust and confidential matters of state. It is the fact of loss of confidence, not the reason for it that is important and controlling. (Sa ntos vs. Macaraig, 208 SCRA 74) Next-in-Rank Rulerefers to a position which, by reason of the hierarchical arrang ement of positions in the department or agency or in government, is determined t o be the nearest degree of relationship to a higher position taking into account the following: 1. Organization structure is reflected in the approved organizational chart; 2. Classification and/or functional relationships; 3. Salary and/or range allocation; 4. Geographical location. A qualified next-in-rank is an employee appointed on a permanent basis to a posi tion previously determined to be next-in-rank to the vacancy proposed to be fill ed and who meets the requisites for appointment thereto as previously determined by the appointing authority and approved by the Civil Service Commission. The next-in-rank rule neither grants a vested right to the holder nor imposes a ministerial duty on the appointing authority. The next-in-rank rule applies only if the vacancy is filled by promotion Transfera lateral movement in the same position Promotionis a vertical movement of position 263 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

LIMITATION ON THE TERM OF OFFICE Two (2) Policies: 1. To prevent establishment of political dynasty 2. Enhancing the freedom of choice of the people Two (2) conditions that must concur to apply Disqualification: 1. The local official was elected for three (3) consecutive times, fo r the same position; 2. He had fully served the three (3) consecutive terms. Elective local official3 years and may serve only for 3 consecutive terms ---------------------1988Capco was a Vice-Mayor 1989the Mayor (Borja, Sr.) died, Capco succeeded as Mayor 1992Capco ran for Mayor and won 1995he ran for re-election and won again 1998Is he still qualified to run?

The SC held that Mayor Capco is still qualified in 1998 local election. The righ t to be elected for 3 consecutive times for the same position was not present in this case. Mayor Capco did not fully serve his term in 1989. He became a mayor thru succession and not election. (Borja, jr. vs. COMELEC & Mayor Capco of Pater os)

----------------------1992 1995 X was elected Mayor 1998 However, in December 1, 2000, before his 3rd term ends, he resigned. Is he still qualified to run as mayor for the next election? No, he is no longer allowed to run. Resignation is not considered as an interrup tion in the continuity of his service of office for which he was elected.

---------------------1992 1995 X was elected as Mayor 1998 On December 1, 2000, before his 3rd term ends, he was removed for misconduct. He did not appeal the case. The administrative case attained finality. Is he quali fied to run again for mayor in the 2001 election?

264 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos No. he has been elected for 3 consecutive times for the same position. Section 40 (b) of the LGC provides for his disqualificationremoved as a result of adminis trative case. However, if he appealed, he is still qualified because th ere is no finality of judgment yet. ---------------------1992 1995 X was elected as Mayor 1998 On December 1, 2000, he was removed for grave misconduct. He was able to appeal seasonably. In May 2001, he filed his certificate of candidacy for mayor. His op ponent filed a disqualification case. The COMELEC did not act immediately on the DQ case. He won as mayor. Held: 1. The DQ filed in COMELEC should be dismissed as there was no finality yet of the administrative case. 2. The administrative case should also be dismissed. His re-election should be considered as a condonation by the people of whatever administrative case filed against him.

Doctrine of Forgiveness or Condonationwhen the people have elected a man to offic e, it must be assumed that they did this with knowledge of his life and characte r, and that they disregarded or forgave his faults or misconduct, if he had been guilty of any. It is not for the court, by reason of such faults or misconduct to practically overrule the will of the people. Aguinaldo vs. Santos, 212 SCRA 768, a public official cannot be removed for admi nistrative conduct committed during a prior term, since his re-election to offic e operates as a condonation of the officers previous conduct to the extent of cut ting off the right to remove him therefor. The foregoing rule, however, finds no application to criminal cases pending against petitioner. Mayor Alvin Garcia vs. Hon. Mojica, et al., G.R. No. 139043, September 10, 1999, a re-elected local official may not be held administratively accountable for mi sconduct committed during his prior term of office. The rationale for this holdi ng is that when the electorate put him back into office, it is presumed that it did so with full knowledge of his life and character, including his past miscond uct. If, armed with such knowledge, it still reelects him, such re-election is c onsidered a condonation of his past misdeeds. 1992 1995 Hagedorn was elected as Mayor 1998 In 2001, Hagedorn ran for governor but lost. Socrates was elected as mayor. 265 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos June 30, 2001end of Hagedorns term for mayor July 2, 2002resolution calling for recall of Mayor Socrates September 2002COMELEC set special election for Puerto Princesa City; Hagedorn fil ed his COC for mayor. Was he qualified? Held: the three (3)-term limit rule found in Sec. 43-b, LGC has two (2) parts: 1. Three (3) consecutive terms 2. Any length of time will interrupt The provision speaks of a regular election and not a special one. In this case, recall is a special election. It is not considered as immediate election. The im mediate election that prohibits Hagedorn from running for mayor is the next regu lar election after his 3 consecutive terms has ended, the 2001 election. any subsequent electionis not covered by the prohibition. He won in the September 2002 recall election. He will continue the term of Socra tes. His term will end on June 30, 2004a term which is less than 3 years.

What if in: 2004 2007

he was elected as Mayor

May he run again in 2010? No more. Recall election term is considered as one full term for purposes of app lying the disqualification. Otherwise, Hagedorn will be allowed to serve for mor e than nine (9) years. The above hypothetical problem was only an obiter dictum in the case of Socrates vs. COMELEC. The rule is, service of the recall term will not interrupt the 3-consecutive ter m rule. In the case of Mendoza vs. COMELEC, the SC did not abandon the rul ing in Socrates because it was merely an obiter dictum. --------------------------1995Francis Ong ran for mayor, he won 1998He ran and won again. Alegre filed a protest. 2001Ong ran and won again. The protest in 1998 was decided by the RTC on July 4, 2001 that it was Alegre who won in 1998 election.

266 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos 2004Ong ran again. Alegre questioned. Ong alleged that his proclamation as mayorelect in the May 1998 election was contested and eventually nullified by the RT C of Daet. Issue: Whether or not Ongs assumption of office as Mayor from July 1, 1998 to Jun e 30, 2001 may be considered as one full term service in the context of the consec utive 3- term limit rule? Held: The assumption of office from July 1, 1998 to June 30, 2001 constitutes ser vice for the full term and should be counted as a full term served in contemplati on of the 3- term limit prescribed by the Constitution and LGC, barring local el ective officials from being elected and serving more than 3-consecutive term for the same position. x x x 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 3-term rule. There was no interruption or break in the continuity of Ongs service respecting t he 1998-2001 term. Ong was never unseated during the term in question; he never ceased discharging his duties and responsibilities as Mayor of San Vicente, Cama rines Norte for the entire period covering the 1998-2001 term.

In the case of Lonzanida vs. COMELEC, 311 SCRA 602 (1999), Lonzanida was elected and served for 2 consecutive terms as mayor of San Antonio, Zambales prior to t he May 8, 1995 elections. He then ran again for the same position in the May 199 5 elections, won and discharged his duties as Mayor. However, an election protes t was filed before RTC of Zambales. In a decision dated July 9, 1997, it was hel d that there was a failure of elections and the position for mayor as vacant. Lo nzanida assumed the office and performed his duties up to March 1998 only. Durin g the 1998 elections, Lonzanida ran again for mayor. A petition to disqualify un

der the three-term limit rule was filed and was eventually granted. The Court he ld that Lonzanida cannot be considered as having been duly elected to the post i n the May 1995 election, and that he did not fully serve the 1995-1998 mayoralty term by reason of involuntary relinquishment of office. He cannot be deemed to have served the May 1995 to 1998 term because he was ordered to vacate (and in f act vacated) his post before the expiration of the term. There was an involuntar y severance from office as a result of legal processes. In fine, there was an ef fective interruption of the continuity of service.

VACANCIES AND SUCCESSION Concept of Vacancy: Two (2) Principles to consider: 267 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos 1. One who illegally terminated, by legal fiction, is deemed not to have vacate d his position 2. One, no matter how qualified, may not filled a position which is not vacant Rule on Automatic Succession (Section 44, LGC) A permanent vacancy arises when an elective local official: 1. Fills a higher vacant office; 2. Refuses to assume office; 3. Fails to qualify; 4. Dies; 5. Is removed from office; 6. Voluntarily resigns; 7. Or is otherwise permanently incapacitated to discharge the functions of his office. Ranking in the Sanggunian shall be determined on the basis of the proportion of v otes obtained by each winning candidate to the total number of registered voters in each district in the immediately preceding local election. Governor gay Mayor Punong Baran

Vice Governor

Vice Mayor

Highest ranking sanggunian member/2nd highest ranking sanggunian member (in case of permanent inability of the highest ranking member) In Case of tie between or among the highest ranking sanggunian membersit shall be resolved by the drawing of lots. The successors shall serve only the unexpired terms of their predecessors. Section 44, LGCFilling the vacancy

Last-in-rankthe one who will replace him must come from the same political party of the one who caused the vacancy, upon nomination of the party. Who shall appoint? 1. Presidentthrough the Executive Secretaryin case of permanent vacancies in the Sangguniang Panlalawigan and the Sangguniang Panlungsod of HUCand independent co mponent cities; 2. Governorin case of the Sangguniang Panglungsod of component cities and the Sa ngguniang Bayan; 3. City or municipal mayorin case of Sanggguniang Barangayupon recommendation of t he Sangguniang Barangay concerned. 268 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

A nomination and a certificate of membership of the appointee from the highest o fficial of the political party concerned are conditions sine qua non. Any appoin tment without such nomination and certification shall be null and void ab initio and shall be a ground for administrative action against the official responsibl e therefor.

No political party, how shall the vacancy be filled? (Section 45-c, LGC) The local chief executive shall appoint, upon recommendation of the sanggunian concern, a qualified person to fill the vacancy.

Farias vs. Barba, the last-in-rank sangguniang bayan member resigned. Ma yor Barba, upon recommendation of the Sangguniang Bayan, appointed somebody. How ever, Gov. Farias also appointed somebody, upon recommendation of the Sangguniang Panlalawigan. The SC held that neither is entitled to occupy the vacancy. It sh ould have been Gov. Farias who should appoint but the sanggunian who recommended should be the Sangguniang Bayan where the vacancy took place.

Navarro vs. CA, March 2001 Mayor 1. 2. 3. 4. 5. 6. 7. 8. SB SB SB SB SB SB SB SB Lakas-NUCD V-Mayor Lakas-NUCD

Member Member Member came from Reforma Party Member Member MemberLakas NUCD MemberReforma Party MemberLakas NUCD

The Mayor died. Vice Mayor succeeded. The #1 SB Member became the Vice Mayor. Th

e #8 slot became vacant. The Governor appointed somebody from Reforma Party. The SC held that the appointment made by the governor is valid. The last ranking sh all be filled by Reforma Party to maintain party representation in the Sanggunia n as willed by the electorate.

269 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Gamboa, Jr. vs. Aguirre, July 1999 The Vice-Governor acted as Governor. Can ns of Sangguniang Panlalawigan? No. The creation of temporary vacancy in rresponding vacancy in the office of the embers present and constituting a quorum porary presiding officer. The rule on permanent vacancy should not he (V-Governor) preside over the sessio the office of the governor creates a co vice-governor. Section 49-d, LGC, the m shall elect from among themselves a tem be applied to temporary vacancy.

Who appoints the Barangay Secretary or Treasurer? In the case of Alquisola, Sr. vs. Gallardo Ocol, August 1999, the SC held that t he Barangay secretary or treasurer shall be appointed conjointly by the Punong Barangay and the Sanggguniang Barangay.

Situations covered by the Law on Nepotism: One is guilty of nepotism if an appointment is issued in favor of a relative wit hin the third civil degree of consanguinity or affinity of any of the following: a. Appointing authority; b. Recommending authority; c. Chief of the bureau of office; and d. Person exercising immediate supervision. In the last situations (c and d), it is immaterial who the appointing or recomme nding authority is. To constitute a violation of the law, it suffices t hat an appointment is extended or issued in favor of a relative within the 3rd civil degree of consanguinity or affinity of the chief of the bureau or office, or the person exercising immediate supervision over the appointee. (CSC vs. Dac oycoy, G.R. No. 135805, April 29, 1999) Exemptions: 1. Persons employed in confidential capacity; 2. Teachers; 3. Physicians; 4. Members of the AFP; 5. Member of any family who, after his appointment to any position in an office or bureau, contracts marriage with someone in the same office or bureau, in whi ch event the employment or retention therein of both husband and wife may be all owed.

In Section 79 of the Local Government Code, the prohibition is up to the 4th ci vil degree of consanguinity or affinity.

270 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos Laurel V vs. CSC, Governor Laurel appointed his brother as Civilian Security O fficer, hence it is exempted, no violation as it is primarily confidential in ch aracter. However, the governor subsequently designated the same brother as Actin g Provincial Administrator. The SC ruled that appointment and designation are tw o different matters. But for purposes of the law on nepotism, the two are now th e same. Hence, there is now a violation of the law on nepotism. Debulgado vs. CSC, it was alleged that the law applies only to original appointm ent and not to promotional appointment. The SC did not agree. The law applies to all kinds of appointment. The law does not distinguish.

TERMINATION OF OFFICIAL RELATIONSHIP: 1. Expiration of term or tenure 2. Reaching the age limitcompulsory retirement age: 70 years of age for members of the Judiciary; 65 for other government officers and employees 3. Resignation 4. Recall 5. Removal 6. Abandonment 7. Acceptance of an incompatible office 8. Abolition of office 9. Prescription of the right to office 10. Impeachment 11. Death 12. Failure to assume elective office within 6 months from proclamation 13. Conviction of a crime 14. Filing a certificate of candidacy Termthe period of time during which a public officer has the right to hold the pu blic office Tenurethe period of time during which the public officer actually held office Hold-over principle[See the case of Lecaroz vs. SB (1999)]in the absence of any ex press or implied constitutional or statutory provision to the contrary, the publ ic officer is entitled to hold his office until his successor shall have been du ly chosen and shall have qualified. The purpose is to prevent a hiatus in public office. It implies that the office has a fixed term and the incumbent is holding onto th e succeeding term. Where this provision is found, the office does not become vac ant upon the expiration of the term if there is no successor elected and qualifi ed to assume it, but the present incumbent will carry over until his successor i

s elected and qualified, even though it be beyond the term fixed by law.

271 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Indeed, the law abhors a vacuum in public offices, and courts generally indulge in the strong presumption against a legislative intent to create, by statute, a condition which may result in an executive or administrative office becoming, fo r any period of time, wholly vacant or unoccupied by one lawfully authorized to exercise its functions. This is founded on obvious considerations of public poli cy, for the principle of holdover is specifically intended to prevent public con venience from suffering of a vacancy and to avoid a hiatus in the performance of government functions. (Lecaroz vs. Sandiganbayan, 305 SCRA 397, March 25, 1999) RECALLthe termination of official relationship of an elective official f or loss of confidence prior to expiration of his term through the will of the electorate. It is exercised by the registered voters of a local government unit to which the local elective official subject to such recall belongs (Section 69, LGC) Prohibition from resignation: The elective local official sought to be recalled shall not be allowed to resign while the recall process is in progress. Limitations on Recall (Section 74, LGC) 1. Any elective local official may be the subject of a recall election only onc e during his term of office for loss of confidence. 2. No recall shall take place within one year from the date of the officials assumption to office or one year immediately preceding a regular local election. Paras vs. COMELEC, G.R. No. 123169, November 4, 1996, it was held that the SK El ection is not a regular election within the contemplation of the LGC as would ba r the holding of a recall election. Neither will the recall election of the Mayo r be barred by the Barangay Election. Angobung vs. COMELEC, G.R. No. 126571, March 5, 1997, the regular local election referred to in Section 74, LGC, means that the approaching local elect ion must be one where the position of the official to be recalled is actually co ntested and to be filled by the electorate. RESIGNATION is the act of giving up or the act of a public officer by which he de clines his office and renounces the further right to use it. It is an expression of the incumbent in some form, expressed or implied, of the intention to surren der, renounce, and relinquish the office and the acceptance by competent and law ful authority.

be: To constitute a complete and operative resignation from public office, there mus t 1. An intention to relinquish a part of the term; 2. An act of relinquishment;

272 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos 3. Acceptance by the proper authority. The last one is required by reason of Article 238 of the revised Pe nal Code. (Sanggguniang Bayan of San Andres, Catanduanes vs. CA, 284 SCRA 276) Estrada vs. Desierto, G.R. Nos. 146710-15, March 2, 2001, resignation is a factu al question and its elements are beyond quibble: there must be an intent to resi gn and the intent must be coupled by acts of relinquishment. The validity of a r esignation is not governed by any formal requirement as to for. It can be oral. It can be written. It can be express. It can be implied. As long as the resignat ion is clear, it must be given legal effect.

ABANDONMENT OF OFFICEit is the voluntary relinquishment of an office by the holde r, with the intention of terminating his possession and control thereof. Indeed, it is a specie of resignation; while resignation in general is a formal relinqu ishment, abandonment is a voluntary relinquishment through nonuser. It springs from and is accompanied by deliberation and freedom of choice. The co ncomitant effect is that the former holder of an office, can no longer legally r epossess it even by forcible re-occupancy. ABOLITION OF OFFICEit connotes an intention to do away with such office wholly an d permanently, as the word abolished denotes. Where one office is abolished and re placed with another office vested with similar functions, the abolition is a leg al nullity. In the case of UP Board of Regents vs. Rasul, the renaming and restructuring of the PGH and its component units cannot give rise to a valid and bona fide abolit ion of the position of PGH Director. This is because where the abolished office and the offices created in its place have similar functions, the abolition lacks good faith. The abolition which merely changes the nomenclature of positions is invalid and does not result in the removal of the incumbent. The above notwithstanding, and assuming that the abolition of the position of th e PGH Director and the creation of the UP-PGH Medical center Director are valid, the removal of the incumbent is still not justified for the reason that the dut ies and functions of the two positions are basically the same.

Canonizado vs. Aguirre, G.R. No. 133132, January 25, 2000, the substantial ident ity in the functions between the two offices was indicia of bad faith in the rem oval of petitioner pursuant to a re-organization. REORGANIZATIONtakes place when there is alteration of the existing structure of g overnment offices or units therein, including the lines of control, authority an d responsibility between them. It involves a reduction of personnel, co nsolidation of offices, or abolition thereof by reason of economy or redundancy of functions. Naturally, it may result in the loss of ones position through remo val or abolition of an office.

273 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos To be valid, it must also pass the test of good faith. Circumstances evidencing bad faith in the removal of employees as a result of re organization and which may give rise to a claim for reinstatement or reappointme nt: 1. Where there is a significant increase in the number of positions in the new staffing pattern of the department or agency concerned; 2. Where an office is abolished and another performing substantially the same f unctions is created; 3. Where incumbents are replaced by those less qualified in terms of status of appointment, performance and merit; 4. Where there is a reclassification offices perform substantially the same fun ctions as the original offices; and 5. Where the removal violates the order of separation provided for by Section 2 and of RA 6656.

GROUNDS FOR REMOVAL AND SUSPENSION(Section 23, Rule XIV, Omnibus Rules Implementing Book V of 1987 Administrative Code) 1. Grave Offenses 2. Less Grave offenses 3. Light Offenses

Preventive Suspension It is not a penalty itself. It is merely a measure of precaution so that the emp loyee who is charged may be separated, for obvious reasons, from the scene of hi s alleged misfeasance while the same is being investigated. It is not an action by itself but merely an incident in an action.

It is different from administrative penalty of suspension from office. The latte r is the penalty which may only be meted upon the respondent at the termination of the investigation or the final disposition of the case. Preventive suspension is imposed on the respondent during the investigation of charges against him.

Governing Laws: 1. Preventive Suspension in Administrative Cases a. Civil Service Law Maximum duration: 90 days After 90 days: automatic reinstatement 274 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Certiorari: period will not be included in the 90-day period computation Gloria vs. CA (199), there are two (2) kinds of preventive suspension under CSC: i. Pending investigation ii. Pending appeal & the respondent is exonerated on appeal payment of back salaries

Pending investigation Pending Appeal (Respondent is not entitled statement with full payment to back wages) ent of back salaries)

(Rein paym

Gov. Plaza vs. CA, G.R. No. 138464, January 18, 2008, the law provides for preve ntive suspension of appointive local official and employees pending investigatio n of the charges against them. The suspension given to private respondents, cann ot, therefore, be considered unjustified for it is one of those sacrifices which holding a public office requires for the public good. To be entitled to back sa laries, private respondents must not only be found innocent of the charges, but their suspension must likewise be unjustified. b. Local Government Code i. Sec. 63those holding local elective office Preventive Suspension placed by: 1. Mayorconcerning the elective barangay officials 2. Governor municipal elective officials

Component city elective official 3. President highly urbanized/independent component city officials Provincial officials Every administrative charge: maximum: 60 days Several administrative cases: maximum: 90 days w/in a single year 90 days before the next local electionPS ii. Sec. 85those appointed officials 275 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos shall be lifted automatically

Duration: maximum of 60 days c. Ombudsman ActRA 6770 Duration: Maximum of 6 months 2. Preventive suspension in Criminal Cases a. Section 13, RA 3019Suspension and loss of benefits Authority to impose: i. Court where the information was filed Luciano vs. Provincial Governor, since the law is silent, the court where the in formation was filed shall impose the preventive suspension ii. Salary Grade 27 or overSandiganbayan iii. Below Salary Grade 27RTC It is mandatory for the court to impose the preventive suspension. However, it i s not automatic. In the case of Socrates vs. Sandiganbayan, it was held that the court must conduct first a pre-suspension hearing to determine the validity of criminal information filed against the public officer

Duration: the law is silent In the case of Gonzaga vs. Sandiganbayan, since the law is silent, apply by anal ogy the Civil Service Law, the maximum duration would be 90 days.

Deloso vs. SB the public officer may be itted Bayot vs. SB Segovia vs. SB ther Santiago vs. SB

Section 13, RA 3019 does not state that suspended in the office where he comm the crime. The term office indicates that it applies to any o office.

Paredes vs. SB e Santiago vs. SB

the suspension imposed is merely preventive. Ther is no encroachment.

276 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Article XI ACCOUNTABILITY OF PUBLIC OFFICERS

Section 1, Article XI Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives .

277 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Public office is a public trust, and as such, the same is governed by law, and c annot be made the subject of personal promises or negotiations by private person s. Security of tenure of employees in the career executive service (except first and second level employees in the civil service), pertains only to rank and not to the office or to the position to which they may be appointed. (Collantes vs. CA, G.R. No. 169604, March 6, 2007)

Who are impeachable officers? (The list is exclusive) 1. President 2. Vice-President 3. Members of the Constitutional Commission 4. Justices of the Supreme Court 5. Ombudsman Justices of the Sandiganbayan cannot be removed by impeachment. Impeachment of Presidentthe Chief Justice of the Supreme Court will preside; the Senate/HOR will prosecute Grounds for impeachment: 1. Culpable violation of the constitution 2. Treason 3. Bribery 4. Betrayal of public trust 5. Graft and corruption 6. Other high crimes Procedure in Impeachment Initiation: The House of Representatives shall have the exclusive power to initiate all case s of impeachment. Process: 1. Verified complaint filed by any member of the House or any citize n upon resolution of endorsement by any member thereof;

2. Included in the order of business within ten (10) session days; 3. Referred to the proper committee within three (3) session days of its inclus ion. If the verified complaint is filed by at least 1/3 of all its members, the same s hall constitute the Articles of Impeachment, and trial by the Senate shall forthwith 278 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos proceed. 4. The Committee, after hearing, and by majority vote of all its members, shall submit its report to the House together with the corresponding resolution; 5. Placing on calendar the Committee resolution within ten (10) days from submission; 6. Discussion on the floor of the report; 7. A vote of at least 1/3 of all the members of the House shall be necessary ei ther to affirm a favorable resolution with the Articles of Impeachment of the Committee or override its contrary resolution. Trial and Decision 1. The Senators take an oath or affirmation; 2. When the president is on trial, the Chief Justice of the Supreme Court shall preside but shall not vote; 3. A decision of conviction must be concurred in by at least 2/3 of all the mem bers of the Senate. Effect of Conviction 1. Removal from office; 2. Disqualification to hold any other office under the Republic of the Philippi nes; 3. Party convicted shall be liable and subject to prosecution, trial and punish ment according to law. Limitation: 1. Not more than one impeachment case shall be initiated against the same offic ial within a period of one (1) year. 2. The House of Representatives shall have the exclusive power to initiate all cases of impeachment. Republic vs. Sandiganbayan, G.R. No. 142476, March 20, 2001, the Republic of the Philippines cannot be held liable under an Agreement entered into by the PCGG wit h another party where the republic did not authorize the PCGG to enter into such contract. Where the sale of an aircraft to a third party by the PCGG is void, i t follows that the Agreement between the PCGG and the third party is likewise a nu llity, and there can be no cause of action against the Republic. Presidential Ad Hoc Fact-Finding Committee on Behest Loans vs. Desierto, et al. G.R. No. 130140, October 25, 1999, Article XI, Section 15 of the Constitution pr ovides that the right of the State to recover properties unlawfully acquired by p ublic officials or employees, from them or from their nominees as transferees, s hall not be barred by prescription, laches, or estoppel. This provision does not seem to indicate that whatis imprescriptible is the corresponding civil action to recover ill-gotten wealth but not the criminal action that may relate thereto. The criminal action, i.e., violation of Section 3(c) and (g), RA 3019, can presc ribe conformably with the pertinent statute applicable which,

279 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos in this instance, BP 195, providing for a 15-year prescriptive period and thereby modifying to the above extent the 10-year prescriptive period unde r RA 3019. In Francisco vs. House of Representatives, G.R. No. 160261, November 10, 2003, an impeachment case is the legal controversy that must be decided by the enate while an impeachment proceeding is one that is initiated in the House of epresentatives. For purposes of applying the one-year bar rule, the proceeding s initiated or begins when a verified complaint is filed and referred to the ttee on Justice for action. S R i Commi

Legislative bodies cannot impose the administrative punishment of removal from o ffice because the power to remove local elective officials has been exclusively granted to the proper courts. (Sanggguniang Barangay of Don Mariano Mar cos vs. Martinez, G.R. No. 170626, March 3, 2008)

SANDIGANBAYAN The anti-graft court shall continue to function and exercise its jurisdiction as now and hereafter may be provided by law. Composition: One (1) Presiding Justice Fourteen (14) Associate Justices with the rank of Justice of the Court of Appeal s Sits in five (5) Divisions of three (3) members each Decision and Review Unanimous vote of all three (3) members shall be required fo r the pronouncement of judgment by a division. Decision shall be reviewable by the SC on petition for certiorari. Jurisdiction: Original Jurisdiction B. Violation of RA 3019; RA 1379; and Chapter II, Section 2, Title VII of the RPC where one or more of the accused are officials occupying the following posi tions in the government, whether in a permanent, acting or interim cap acity at the time of the commission of the offense:

5. Officials of the Executive branch with the position of Regional Director or higher, or with SG Level 27 according to RA 6758, specifically including: i. Provincial governors, vice-governors, board members, provincial treasures, as sessors, engineers and other provincial departments head; ii. City mayors, vice-mayors, city councilors, city treasurers, 280 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos assessors, engineers and other city department heads; iii. Officials of the diplomatic service from consuls or higher; iv. PA/PAF colonels, PN captains and all officers of higher rank; v. Officers of the PNP while occupying the position of provincial dire ctor and those holding the rank of senior superintendent or higher; vi. City/provincial prosecutors and their assistants, and officials and prosecu tors in the Office of the Ombudsman and special prosecutor; vii. Presidents, directors, trustees, or managers of GOCCs state universities or educational institutions or foundations. 6. Members of Congress and officials thereof with SG27 and up; 7. Members of the Judiciary without prejudice to the Constitution; 8. Chairmen and members of the Constitutional Commissions without prejud ice to the Constitution; and 9. All other national and local officials with SG27 or higher. C. Other offenses or felonies whether simple or complex with other cri mes committed by the public officials and employees mentioned in Subsection (a) in relation to their office; D. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and 14-A issued in 1986. Exclusive Original Jurisdiction over petitions for the issuance of the wri ts of mandamus, prohibitions, certiorari, habeas corpus, injunction and other a ncillary writs and processes in aid of its appellate jurisdiction. Prov ided, that jurisdiction over these petitions shall be not exclusive of the Supr eme Court. Exclusive Appellate Jurisdiction over final judgments, resolutions or orders of RTC whether in the exercise of their own original jurisdiction or their appel late jurisdiction. (RA 8249)

THE OMBUDSMAN The champion of the citizens and protector of the people. Tasked to entertain complaints addressed to him against erring public officers a nd take all necessary actions thereon. Composition: An Ombudsman known as the Tanodbayan One (1) Overall Deputy; At least one (1) Deputy e3ach for Luzon, Visayas and Mindanao; One (1) separate Deputy for the military establishment may likewise be

281 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos appointed Qualifications: 1. Natural-born citizen; 2. At least 40 years of age; 3. Of recognized probity and independence; 4. Member of the Philippine Bar; and 5. Must not have been candidates for any elective office in the imme diately preceding election. Term: Seven (7) years without reappointment Disqualifications and Inhibitions A. During their tenure: 1. Shall not hold any other office or employment; 2. Engage in the practice of any profession or in the active management and con trol of any business which in any way may be affected by the functions of his of fice; 3. Shall not be financially interested, directly or indirectly, in other contra ct with, or in any franchise or privilege granted by the government, any of its subdivision, agencies or instrumentalities, including GOCCs or their subsidiarie s. 4. Shall not be qualified to run for any office in the election immediately succ eeding their cessation from office. The Office of the Ombudsman shall enjoy fiscal autonomy. Its approved annual appropriations shall be automatically and regularly released. (Section 14, Arti cle XI) Buenesada vs. Flavier, G.R. No. 106719, September 21, 1993, the power to investi gate also includes the power to impose preventive suspension. This is different from the power to recommend suspension. The latter is suspension as a penal ty; preventive suspension is not a penalty.

Powers, Functions and Duties: 1. The Constitution and RA 6770 (Ombudsman Act of 1989) has endowed the Office of the Ombudsman with a wide latitude of investigatory and prosecutor powers vir tually free from legislative, executive or judicial intervention. The Supreme Co urt consistently refrains from interfering with the exercise of its powers, an d respects the initiative and independence inherent in the Ombud sman who, beholden to no one, acts as the champion of the people and the preserv er of the integrity of public service. (Loquias vs. Office of the Ombudsman, G.R . No. 139396, August 15, 2000)

282 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos 2. The Ombudsman is clothed with and prosecute all criminal cases nly those within the jurisdiction sdiction of the regular courts as 0, March 20, 2001) authority to conduct preliminary investigation involving public officers and employees, not o of the Sandiganbayan but those within the juri well. (Uy vs. Sandiganbayan, G.R. No. 105965-7

Office of the Ombudsman vs. CSC, G.R. No. 162215, July 30, 2007, since the respo nsibility for the establishment, administration and maintenance of qualif ication standards lies with the concerned department or agency, the role of the CSC is limited to assisting the department or agency with respect to these quali fication standards and approving them. The CSC cannot substitute its own standar ds for those of the department or agency, specially in a case like this in which an independent constitutional body is involved.

Perez vs. Sandiganbayan, G. R. No. 166062, September 26, 2006, the incumbent Tan odbayan (called Special Prosecutor under the 1987 Constitution and who is suppos ed to retain powers and duties NOT GIVEN to the Ombudsman) is clearly wi thout authority to conduct preliminary investigations and to direct the filing o f criminal cases with the Sandiganbayan, except upon orders of the Ombudsman.

Suspension under the Ombudsman Act vis--vis the Local Government Code: o In order to justify the preventive suspension of a public official under Secti on 24 of RA 6770, the evidence of guilt should be strong, and: The charge against the officer or employee should involve dishonesty, oppres sion or grave misconduct or neglect in the performance of duty; The charges should warrant removal from the service; or The respondents continued stay in the office would prejudice the case filed a gainst him. o The Ombudsman can impose the 6-month preventive suspension to all public offic ials, whether elective or appointive, who are under investigation. o On the other hand, in imposing the shorter period of sixty (60) days of preven tive suspension prescribed under the LGC of 1991 on an elective local official ( at any time after the issues are joined), it would be enough that: d. There is a reasonable ground to believe that the respondent has co mmitted the act or acts complained of; e. The evidence of culpability is strong; f. The gravity of the offense so warrants; or g. The continuance in the office of the respondent could influence th e witnesses or pose a threat to the safety and integrity of the records and

283 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos other evidence. (Miranda vs. Sandioganbayan, G.R. No. 154098, July 27, 2005) Office of the Ombudsman vs. CA, G.R. No. 168079, July 17, 2007, the SC upheld th e constitutionality of Sections 15, 21 and 25 of RA 6770, thus affirming that th e powers of the Office of the Ombudsman are not merely recommendatory. The Court ruled in Estarija case that under RA 6770 and the 1987 Constitution, the Ombuds man has the constitutional power to directly remove from the government service an erring public official, other than a member of Congress and the Judiciary.

Article XII NATIONAL ECONOMY AND PATRIMONY Section 1, Article XIIGoals: 1. More equitable distribution of wealth 2. Increased wealth for the benefit of the people 3. Increased productivity. REGALIAN DOCTRINESection 2, Article XII All lands of the public domain, waters, minerals, coals, petroleum and other min eral oils, all forces of potential energy, fisheries, forests, or timber, wildli fe, flora and fauna, and natural resources belong to the State. With the excepti on of agricultural lands, all other natural resources shall not be alienated.

To prove that the land subject of an application for registration is alienable, an applicant must conclusively establish the existence of a positive act of the government

284 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos such as a presidential proclamation or an executive order, or an administrative action, investigation reports of the Bureau of Lands Investigator or a legislati ve act or statute. Until then, the rules on confirmation of imperfect title do n ot apply. A certification of the Community Environment and Natural Resources Off icer (CENRO) in the DENR stating that the land subject of an application is foun d to be within the alienable and disposable site in a land classification projec t map is sufficient evidence to show the real character of the land subject of t he application. (RP vs. Candy Maker, Inc., G.R. No. 163766, June 22, 2006)

Classification of Lands of the Public Domain: 1. Agricultural; 2. Forest or timber; 3. Mineral lands; and 4. National parks. Private Lands GeneralRule: No private land shall be transferred or conveyed except to individu als, corporations or associations qualified to acquire or hold lands of the publ ic domain. Exceptions: 1. Foreigners who inherit through intestate succession; 2. Former natural-born citizen may be a transferee of private lands s ubject to limitations provided by law; 3. Ownership in condominium units; 4. Parity right agreement, under 1935 Constitution. Stewardship Doctrineprivate property is supposed to be held by the individual onl y as a trustee for the people in general, who are its real owner.

Filipino First Policyin the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualifie d Filipinos. (2nd paragraph, Section 10, Article XII) This provision is self-executing. It is mandatory, positive command whic h is complete in itself and which needs no further guidelines or implementing l aws or rules for its enforcement. From its very words the provision does not req uire any legislation to put it in operation. It is per se judicially enforceable . When our Constitution mandates that in the grant of rights, privileges, and co ncessions covering the national economy and patrimony, the State shall give pref erence to qualified Filipinos, it means just that qualified Filipinos must be pre ferred. (Manila Prince Hotel vs. GSIS, G.R. No. 118295, May 2, 1997) A join venture is an association of persons or companies jointly undertaking

285 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos some commercial enterprise with all of them generally contributing assets and sh aring risks. Considering more of a partnership, a joint venture is governed by t he laws on contracts and on partnership. The joint venture created between Natio nal Investment and Development Corporation (NIDC) and Kawasaki falls within the purview of an association pursuant to Section 5 of Article XIV of the 1973 Co nstitution and Section 11 of Article XII of the 1987 Constitution. Consequently, a joint venture that w ould engage in the business of operating a public utility, such as shipyard, mus t observe the proportion of 60%-40% Filipino-Foreign capitalization. (JG Summit Holdings, Inc. vs. CA, 345 SCRA 143)

Temporary Take Over of Business Affected with Public Interest The State may temporarily take over or direct the operation of any privately own ed public utility or business affected with public interest: 1. In times of national emergency; 2. When the public interest so requires; and 3. During the emergency and under reasonable terms prescribed by it. The temporary take over by the government extends only to the operation of the b usiness and not to the ownership thereof. As such, the government is not require d to compensate the private entity-owner of the said business as there is no tra nsfer of ownership, whether permanent or temporary. The private entity-owner aff ected by the temporary take over cannot, likewise, claim for just compensation f or the use of the said business and its properties as the temporary takeover by the government is in exercise of its police power and not of its power of eminen t domain. (Agan vs. PIATCO, G.R. No. 155001, May 5, 2003)

Right of Indigenous Cultural Communities/Indigenous People Constitutional Provisions Recognizing and Protecting the Rights and Interest of the Indigenous People: 1. Section 22, Article IIthe State recognizes and promotes the rights of indigenous peoples within the framework of national unity and development. 2. Section 5, Article XIIthe State, subject to the provisions of the Constitutio n and national development policies and programs, shall protect the rights of in digenous cultural communities to their ancestral lands to ensure their economic, social, and cultural well-being. The Congress may provide for the applicability of customary laws governing prope rty rights or relations in determining the ownership and extent of ancestral dom ain. 3. Section 1, Article XIII

286 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

4. Section 6, Article XIIIthe State shall apply the principles of agrarian refor m stewardship, whenever applicable in accordance with law, in the disposition or utilization of other natural resources, including lands of the public domain un der lease or concession suitable to agriculture, subject to prior rights, homest ead rights of small settlers, and the rights of indigenous cultural communities to their ancestral lands. 5. Section 17, Article XIVthe State shall recognize, respect, and protect the ri ghts of indigenous cultural communities to preserve and develop their cultures, traditions, and institutions. It shall consider these rights in the formulation of national plans and policies. 6. Section 12, Article XVIthe Congress may create a consultative body to advise the President on policies affecting indigenous cultural communities, the majorit y of the members of which shall come from such communities. Indigenous Peoples Rights Act (RA 8371) The IPRA is a law dealing with a specific group of people, i.e., the Indigenous Cultural Communities (ICCs) or the Indigenous Peoples (IPs). The term ICCs is us ed in the 1987 Constitution while that of IPs is the contemporary international language in the International Labor Organization (ILO) Convention 169 and the UN Draft Declaration on the Rights of Indigenous Peoples. The ICCs or IPs refer to a group of people or homogenous societies who have cont inuously lived as an organized community on communally bounded and defined terri tory. These groups of people have actually occupied, possessed and utilized thei r territories under claim of ownership since time immemorial. They share common bonds of language, customs, traditions and other distinctive cultural traits, or , they, by their resistance to political, social and cultural inroads of colonization, non-indigenous religions and cultures, became historically diffe rentiated from the Filipino majority. The ICCs/IPs also include their descendant s who inhabited the country at the time of conquest or colonization, who have be en displaced from their traditional territories or who may have resettled outsid e their ancestral domains. It recognizes the existence of the indigenous cultural communities or indigenous peoples (ICCs/IPs) as a distinct sector in Philippine society. It grants these people the ownership and possession of their ancestral domains and ancestral lan ds, and defines the extent of these lands and domains. The ownership given is th e indigenous concept of ownership under customary law which traces its origin to native title. Within their ancestral domains and ancestral lands, the ICCs/IPs are given the r ight to self-governance and empowerment, social justice and human rights; the ri ght to preserve and protect their culture, traditions, institutions and communit y intellectual rights, and the right to develop their own sciences and technolog ies.

287 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos Ancestral domainsare all areas belonging to ICCs/IPs held under a claim of owners hip, occupied or possessed by ICCs/IPs by themselves or through their ancestors, communally or individually since time immemorial, continuously until the presen t, except when interrupted by war, force majeure or displacement by fo rce, deceit, stealth or as a consequence of government projects or any other vol untary dealings with government and/or private individuals or corporations. It c omprises lands, inland waters, coastal areas, and natural resources there in and includes ancestral lands, forests, pasture, residential, agricultural, and other lands individually owned whether alienable or not, hunting grounds, b urial grounds, worship areas, bodies of water, mineral and other natural resourc es. They also include lands which may no longer be exclusively occupied by ICCs/ IPs but from which they traditionally had access to for their subsistence an d traditional activities, particularly the home ranges of ICCs/IPs who ar e still nomadic and/or shifting cultivators. Section 3(a), IPRA Ancestral Landsare lands held by the ICCs/IPs under the same conditions as ancest ral domains except that these are limited to lands and that these lands are not merely occupied and possessed but are also utilized by the ICCs/IPs under claims of individual or traditional group ownership. These lands include but are not l imited to residential lots, rice terraces or paddies, private forests, swidden f arms and tree lots. Section 3(b), IPRA The right of the ICCs/IPs to their ancestral domains and ancestral lands may be acquired in two modes: 1. Native title over both ancestral domains and lands; 2. Torrens title under the Public Land Act and the Land Registration Act with r espect to ancestral lands only.

Native Titlerefers to ICCs/IPs pre-conquest rights to lands and domains held unde r a claim of private ownership as far back as memory reaches. These lands are de emed never to have been public lands and are indisputably presumed to have been held that way since before the Spanish conquest. The rights of ICCs/IPs to their ancestral domains (which also include ancestral lands) by virtue of native title shall be recognized and respected (Section 11, IPRA). Formal reco gnition, when solicited by ICCs/IPs concerned,shallbeembodiedinaCertificateofAnc estralDomainTitle(CADT),which shall recognize the title of the concerned ICCs/IP s over the territories identified and delineated. Like a torrens title, a CADT is an evidence of private ownership of land by nativ e title. Native title, however, is a right of private ownership peculiarly grant ed to ICCs/IPs over their ancestral lands and domains. The IPRA categori cally declares ancestral lands and domains held by native title as never to have been public land. Domains and lands held under native title are, therefore, ind isputably presumed to have never been public lands and are private. 288 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

The concept of native title in the IPRA was taken from the 1909 case of Cario vs. Insular Government, 41 Phil 935. Cario firmly established a concept of private l and title that existed irrespective of any royal grant from the State. The concept of native title to natural resources, unlike native title to land, h as not been recognized in the Philippines. In the case of Reavies vs. Fianza, 40 Phil 1017, the Court merely upheld the right of the indigenous peoples to claim owner ship of minerals under the Philippine Bill of 1902. Ownership by virtue of native titlepresupposes that the land has been held by its possessor and his predecessor-in-interest in the concept of an owner since time immemorial. The land is not acquired from the State, that is, Spain or its succ essor-in- interest, the US and the Philippines Government. There has been no tra nsfer of title from the State as the lands has been regarded as private in chara cter as far back as memory goes. Ownership of the land by acquisitive prescriptionagainst the State involves a con version of the character of the property from alienable public land to private l and, which presupposes a transfer of title from the State to a private person. Jus Regaliaprivate title to the land must be traced to some grant, express or imp lied, from the Spanish Crown or its successors, the American Colonial government and thereafter, the Philippine Republic. The belief that the Spanish Crown is t he origin of all land titles in the Philippines has persisted because title to l and must emanate from some source for it cannot issue forth from nowhere. It refers to royal grants, or those rights which the King has by virtue of his pr erogatives. [Isagani Cruz vs. Secretary of DENR, et al., G.R. No. 135385, December 6, 2000, En banc, (Puno and Kapunan, Separate Opinions)] Lands

Public domain 1. Forest/timber f title had been 2. Mineral lands pino individual) 3. National parks 4. agricultural Same rules as alienable The only land (Public Domain) uire which may be alienated Only Filipinos) 289 2008 Political Law and Public International Law

Private Lands (A certificate o issued to a Fili

lands as to who may acq (

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Filipino Citizens Private Corporations Except: 1) Not more than 12 ha. --by lease 1) hereditary succession (Purchase homestead 2) f ormer natural born Grant) 3) Americans holding valid title 2) Leasenot more than t o private lands as against private 500 ha. persons. Titles to private lands acquired by Americans before July 3, 1974 shall be valid as But State may recover against private persons only

Article XIII SOCIAL JUSTICE AND HUMAN RIGHTS

1. 2. 3. 4. 5. 6. 7. 8.

Social Justice Labor Agrarian and Natural Resources Reform Urban Land Reform and Housing Health Women Role and Rights of Peoples Organization Human Rights

Section 1 The Congress shall give highest priority to the enactment of measures that prote ct and enhance the right of all the people to human dignity, reduce social, econ omic, and political inequities, and remove cultural inequities by equitably diff using wealth and political power for the common good. To this end, the State shall regulate the acquisition, ownership, use, and dispo sition of property and its increments.

290 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Section 2 The promotion of social justice shall include the commitment to create economic opportunities based on freedom of initiative and self-reliance.

Labor Section 3 The State shall afford full protection to labor, local and overseas, organized a nd unorganized, and promote full employment and equality of employment opportuni ties for all. It shall guarantee the rights of all workers to self-organization, collective ba rgaining and negotiations, and peaceful concerted activities, including the righ t to strike in accordance with law. They shall be entitled to security of tenure , humane conditions of work, and a living wage. They shall also participate in p olicy and decision-making processes affecting their rights and benefits as may b e provided by law. The State shall promote the principle of shared responsibility between workers a nd employers and the preferential use of voluntary modes in settling disputes, i ncluding conciliation, and shall enforce their mutual compliance therewith to fo ster industrial peace. The State shall regulate the relations between workers and employers, recognizin g the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns on investments, and to expansion and growt h.

Agrarian and Natural Resources Reform Section 4

291 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Article XIV EDUCATION, SCIENCE AND TECHNOLOGY, ARTS, CULTURE, AND SPORTS

Section 4 (1), Article XIV of the Constitution recognizes the States power to reg

ulate educational institutions: The State recognizes the complementary roles of public and private ins titutions in the educational system and shall exercise reasonable supervision and regulation of all educational institutions. As may be gleaned from the above provision, such power to regulate is subject to the requirements of reasonableness. Moreover, the Constitution allows merely th e regulation and supervision of educational institutions, not the deprivation of their rights. (Miriam College Foundation, Inc. vs. CA, 348 SCRA 265) Section 5 (2), Article XIV provides that: Academic freedom shall be enjoyed in a ll institutions of higher learning.

Academic Freedom The right of the school or college to decide for itself, its aims and objectives , and how best to attain themfree from outside coercion or interference save poss ibly when 292 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos the overriding public welfare calls for some restraint. It has a wide sphere of autonomy certainly extending to the choice of students. Said constitutional prov ision is not to be construed in a niggardly manner or in a grudging fashion. Tha t would be to frustrate its purpose and nullify its intent. The to 1. 2. 3. 4. essential freedoms subsumed in the term academic freedom encompass the freedom determine for itself on academic grounds: Who may teach What may be taught How it shall be taught Who may be admitted to study

The right of a school to discipline its students is at once apparent in the thir d freedom, i.e., how it shall be taught. A school certainly cannot function in an atmosphere of anarchy. Incidentally, the school not only has the right but the duty to develop discipli ne in its students. The Constitution no less imposes such duty. Section 3 (2), A rticle XIV: All educational institutions shall inculcate patriotism and national ism, foster love of humanity, respect for human rights, appreciation of the role of national heroes in the historical development of the country, teach the rights and duties of citizenship, strengthen ethical and spiritual values, devel op moral character and personal discipline, encourage critical and creative thin king, broaden scientific and technological knowledge, and promote vocational eff iciency. Three (3) Aspects of Academic Freedom: 1. From the standpoint of the educational institutionto provide that atmosphere which is most conducive to speculation, experimentation and creation.

2. From the standpoint of the faculty a. Freedom in research and in the publication of the results, subject to the ad equate performance of his other academic duties; b. Freedom in the classroom in discussing his subject, less controversial matte rs which bear no relation to the subject; c. Freedom from institutional censorship or discipline, limited by his special position in the community. 3. From the standpoint of the studentright to enjoy in school guaranteed by the Bill of Rights (Non vs. Dames, May 20, 1990) May a university validly revoke a degree or honor it has conferred to a student a fter the graduation of the latter after finding that such degree or honor was 293 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos obtained through fraud? The SC pointed out that academic freedom of institutions of higher learning is a freedom granted to institutions of higher learning which is thus given a wide spher e of authority certainly extending to the choice of students. If such institution of higher learning can decide who can and who cannot study in it, it certainly can also determine on whom it can confer the honor and distinction of being its graduates. (Garcia vs. Faculty Admission Committee, Loyola School of Theology, 6 8 SCRA 277) Where it is shown that the conferment of an honor or distinction was obtained th rough fraud, a university has the right to revoke or withdraw the honor or disti nction it has thus conferred. This freedom of a university does not terminate up on the graduation of a student, for it is precisely the graduation of such a student that is in question. (UP Board of Regents vs. CA and Arokiaswamy William Margar et Celine, G.R. No. 134625, August 31, 1999)

In administrative cases, such as investigations of students found violating scho ol discipline, there are withal minimum standards which must be met before to sa tisfy the demands of procedural due process and these are: 1. The student must be informed in writing of the nature and cause of any accusation against them; 2. They shall have the right to answer the charges against them and with the as sistance of counsel, if desired; 3. They shall be informed of the evidence against them; 4. They shall have the right to adduce evidence in their own behalf; and 5. The evidence must be duly considered by the investigating committee or offic ial designated by the school authorities to hear and decide the case. Academic freedom encompasses the independence of an academic institution to dete rmine for itself: Who may teach; What may be taught; How it shall teach; and Who may be admitted to study. (DLSU, Inc. vs. CA, G.R. No. 127980 , December 19, 2007)

294 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Article XV THE FAMILY Familyis the basic social institution. The State recognizes the Filipino family a s the foundation of the nation. Care for the elderly The duty to care for the elderly is given to both the family and the State. An e ffective social security system is an indispensable component of any effective c aring for the elderly.

Article XVI GENERAL PROVISIONS Flag The design of our flag may be changed only by constitutional amendment.

DOCTRINE OF STATE IMMUNITY FROM SUIT Sec. 3, Article XVI The State may not be sued without its consent. It is based on the very essence of sovereignty. It is derisively called the royal prerogative of dishonesty because it grants the state the prerogative to defeat any legitimate claim against it by simply invoking its non-suability.

295 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos There can be no legal right against the authority which makes the law on which t he right depends (Republic vs. Villasor, 54 SCRA 83). However, it may be sued if it gives consent, whether express or implied. Does this doctrine apply as well to foreign government? YES, because o f the sovereign equality of all the state. Immunity is enjoyed by other States, consonant with the public international law principle of PAR IN PAREM NON HABET IMPERIUM. The head of State, who is deemed the personification of the State, is inviolable, and thus, enjoys immunity from suit. USA vs. Guinto, 182 SCRA 644 Fabian Genove filed a complaint for damages aga inst petitioners Lamachia, Belsa, Cartalla and Orascion for his dismissal as coo k in the US Air Force Recreation Center at Camp John Hay Air Station in Baguio C ity. It had been ascertained after investigation, from the testimony of Belsa, C artalla and Orascion that Genove had poured urine into the soup stock used in co oking the vegetables served to the club customers. Lamachia, as club man ager, suspended him and thereafter referred the case to a board of arbitr ators conformably to the collective bargaining agreement between the center a nd its employees. The board unanimously found him guilty and recommended his dis missal. Genoves reaction was to file his complaint against the individual petitio ners. SC: The rule that a State may not be sued without its consent is one of the gene rally accepted principles of international law that we have adopted as part of o ur law. Even without such affirmation, we would still be bound by the generally accepted principles of international law under the doctrine of incorporation. Un der this doctrine, as accepted by the majority of states, such principles are de emed incorporated in the law of every civilized state as a condition and consequ ence of its membership in the society of nations. All states are sovereign equal s and cannot assert jurisdiction over one another. When the government enters into a contract, it is deemed to have descended to th e level of the other contracting party and divested of its sovereign immunity is expressed with more specificity in the RP-US Bases Treaty. There is no question that the US, 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 ca pacity. It is only when the contract involves its sovereign or governmental capa city that no such waiver may be implied.

Q: How may consent be given?

A: The States consent may be given either EXPRESSLY or IMPLIEDLY. EXPRESS CONSENT- may be made through enactment by Congress of a general law or s pecial law waiving the immunity.

296 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

General Law e.g. Act No. 3083 where the Philippine government consents and submits to be sued upon any money claim involving liability arising from contract, express or impl ied, which could serve as a basis of a civil action between the private parties. (correlate Act 3083 with CA 327 as amended by PD 1445) Commonwealth Act 327 (General Auditing Law, as amended by PD 1445, requires that all money claims against the government must first be filed with the COA which must act upon it within 60 days. Rejection of the claim will authorize the claim ant to elevate the matter to SC on certiorari and, in effect, sue the State ther eby. Department of Agriculture vs. NLRC, 227 SCRA 693, DA may be sued for money claim s based on a contract entered into in its governmental capacity, because of the express consent contained in Act 3083 provided that the claim be first brought t o the COA in accordance with CA 327, as amended. Ministerio vs. City of Cebu, 40 SCRA 464, Suit may lie because the doctrine of State immunity cannot be used to perpetrate an injustice. Delos Santos vs. IAC, 223 SCRA 11, public respondents belief that the property is public, even if buttressed by statements of other public officials, is no reason for the unjust taking of the petitioners property; after all, the TC T was in the name of the petitioner. USA vs. Ruiz, 136 SCRA 487, where the questioned transaction dealt with the impr ovements on the wharves in the naval installation at Subic Bay, SC held that the traditional rule of immunity exempts a state from being sued in the courts of a nother state without its consent or waiver. This rule is a necessary consequence of the principle of independence and equality of states. However, the rules of International Law are not petrified; they are constantly developing and evolving.

Acta Jure Imperii Acta Jure Gestionis -There is no waiver. The State is acting in its sovereign governmental capacity. -There is waiver of State immunity from suit. The State entered into a con tract in its commercial or proprietary capacity. The State descended to the leve l of a private entity. RESTRICTIVE DOCTRINE OF STATE IMMUNITY FROM SUITnot all contracts entered into by the government constitute a waiver.

The restrictive application of State immunity is proper only when the proceeding s 297 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos arise out of commercial transactions of the foreign sovereign, its commercial ac tivities or economic affairs. Stated differently, a state may be said to have de scended to the level of an individual and can thus be deemed to have tacitly giv en its consent to be sued only when it enters into business contracts. It does n ot apply where the contracts relate to the exercise of its sovereign functions. In this case, the projects are integral parts of the naval base which is devoted to the defense of both US and Philippines, indisputably a function of the gover nment of the highest order; they are not utilized for nor dedicated to commercia l or business purposes. The contract for the repair of wharves was a contract in JUS IMPERII because the wharves were to be used in national defense, a governmental function. There is no waiver. Only the American government can waived. Act 3083 is not applicable. The remedy is to convince the Department of Foreign Affairs to take up the claim to the US government (state to state). USA vs. Guinto, 182 SCRA 644, a contract for restaurant services within the Camp John Hay Air Station was held commercial in character. The case should not be d ismissed. The cafeteria caters not only Americans but also the general public. T here is waiver of State Immunity from suit. This is a case of Acta Jure Gestioni s. Republic vs. Sandiganbayan, 204 SCRA 212, Even if, in exercising the power of em inent domain, the State exercises a power jus imperii, as distinguished from its proprietary right of jus gestionis, where property has been taken without just compensation being paid, the defense of immunity from suit cannot be set up in a n action for payment by the owner. Special Law This form of consent must be embodied in a statute and cannot be given by a mere counsel. e.g. Articles 2180 and 2189 of the Civil Code Article 2180 of the Civil Code(paragraph 6) The State is responsible in like mann er when it acts through a special agent; but not when the damage has been caused by the official to whom the task done properly pertains, in which case what is provided in Article 2176 shall be applicable. Article 2189: Provinces, cities and municipalities shall be liable for damages f or the death of, or injuries suffered by, any person by reason of the defective condition of roads, streets, bridges, public buildings, and other public works u nder their control and supervision. Teotico vs. City of Manila, a man fell in a manhole. Sec. 24, Local Government Code: Local government units and their officials are not exempt from liability for deat h or injury to persons or damage to property.

298 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Q. May the OSG validly waived? A. Republic vs. Purisima, 78 SCRA 470, a mere lawyer (OSG) may not validly waive d the immunity from suit of the State. Only Congress can. IMPLIED CONSENT1. When the State commences the litigation. It becomes vulnerable to a counterclaim. Intervention by the State would constitute commencement of litigation EXCEPT: when the State intervenes not for the purpose of asking fo r any affirmative relief, but only for the purpose of resisting the claim precis ely because of immunity from suit. (Lim vs. Brownell, 107 Phil 345) 2. When the State enters into a business contract. (See USA vs. Guinto & USA vs . Ruiz) (This is the RESTRICTIVE DOCTRINE OF STATE IMMUNITY)

Mun. of San Fernando, La Union vs. Judge Firme,195 SCRA 692, the dump truck, own ed by the municipality, was driven by its official driver. It was used for hauli ng gravel for the repair/construction of the municipal road. The truck collided with a jeepney. The heirs of the jeepney driver sued the Municipality of San Fer nando, La Union. The SC held that municipal corporations are agencies of the Sta te when they are engaged in governmental functions. Repair of municipal road is a governmental function. Therefore, should enjoy the immunity from suit. However , they are subject to suit even in the performance of such functions because the ir respective charters provide that they can sue and be sued.

Sec. 22 (a2) of the Local Government Code- To sue and be sued; SUABILITY vs. LIABILTY SUABILITY LIABILTY State waiving the immunity -gives the claimant the opportunity to prove a claim against the State for a possible liability -will have to be determined by the court on the basis of evidence and the applic able laws Q. When is a suit against a public official deemed to be a suit against the Stat e? A. The doctrine of State Immunity from suit applies to complaints filed against public officials for acts done in the performance of their duties withi n the scope of their authority. The rule is that the suit must be regarded as one against the state where the sa tisfaction of the judgment against the public official concerned will require th e state to perform a positive act, such as appropriation of the amount necessary to pay the damages awarded to the plaintiff.

299 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

The rule does not apply where the public official is charged in his official capacity for acts that are unlawful and injurious to the rights of othe rs. Public officials are not exempt, in their personal capacity, from liability arising from acts committed in bad faith. Neither does it apply where the public official is clearly being sued not in his official capacity but in his personal capacity, although the acts complained of may have been committed while he occupied a public position. (Llansang vs. CA, Feb. 23, 2000) In this case, petitioner was sued for allegedly personal motives in ordering the ejectment of the general Assembly of the Blinds, Inc. (GABI) from the Rizal Park; thus, the case was not deemed a suit against the state. Larkins vs. NLRC, 241 SCRA 598, private respondents were dismissed from their em ployment by Lt. Col. Frankhauser acting for and in behalf of the US government w hich, by right of sovereign power, operated and maintained the dormitories at th e Clark Airbase for USAF Members. Instances when a suit against a State is proper: 1. When the Republic is sued by name 2. When the suit is against an unincorporated government agency--inquire into th e principal functions of the agency a. if governmental, NO SUIT WITHOUT CONSENT b. if proprietary, SUIT WILL LIE. 3. When the suit is on its face against a government officer but the case is suc h that ultimate liability will belong not to the officer but to the government. Republic vs. Sandoval, 220 SCRA 124, this is not a suit against the state with i ts consent. Even as the SC dismissed the suit against the RP, the action for the damages against the military personnel and the policemen responsible for the 19 89 Mendiola Massacre was upheld inasmuch as the initial findings of the Davide Commission showed that there was, at least, negligence on their part wh en they fired their guns. They exceeded their authority. The military personnel and the policemen were held to be liable in their individual capacity.

*hauling lumber for the repair of the public marketbusiness enterprise of the government (local government) *celebration of town fiestaTorio vs. Fontanillanot a governmental function but a p roprietary function 300 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R

review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos The doctrine of State immunity from suit extends only up to rendition of the judg ment. When it comes to execution to satisfy the judgment, it will require anothe r waiver. The remedy is to make the necessary representation with the lawmaking authority. *duty to appropriatediscretionary and therefore cannot be compelled by mandamus. However, in Mun. of Makati vs. CA, 190 SCRA 206, where the municipality fails or refuses, without justifiable reasons, to effect payment of a final mon ey judgment rendered against it, the claimant may avail of the remedy of mandamu s in order to compel the enactment and approval of the necessary appropriation o rdinance and the corresponding disbursement of municipal funds therefor. Amigable vs. Cuenca, 43 SCRA 360, an action for the recovery of the value of the property taken by the government and converted into a public street without pay ment of just compensation was allowed despite the failure of the property owner to file his claim with the Auditor General. The government should have followed first its own rule (it should have filed an expropriation case) before it entere d the property. Had it done so, the suit can be waived. The state opened itself to a possible suit against it. SCOPE OF CONSENT Consent to be sued does not include consent to the execution of judgment against it. a. Such execution will require another waiver, because the power of the court e nds when the judgment is rendered. b. But funds belonging to government corporations (whose charters provide that they can sue and be sued) that are deposited with a bank are not exempt from ga rnishment. Exceptions: Municipality of San Miguel, Bulacan vs. Fernandez, 130 SCRA 56, funds of a municipality are public in character and may not be garnishe d UNLESS there is a corresponding appropriation ordinance duly passed by the San gguniang Bayan. PNB vs. Pabalan, 83 SCRA 595, funds belonging to government corp orations which can sue and be sued that are deposited with a bank. Unincorporated Agency Incorporated Agency -it has no legal personality separate and distinct from the government. When sue d, it is deemed a suit against the State, there is no waiver of State immunity. -it does not have its own charter like Bureau of Customs, BIR, DA, NBI -It has a personality separate and distinct from the government

-it has its own charter such as SSS, GSIS, Land Bank, DBP -performs governmental functions: not -if its charter provides that it has the right 301 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos suable without State consent even if performing proprietary function incidentall y (Bureau of Printing vs. Bureau of Printing Employees Association, 1 SCRA 340) -if performing proprietary functions: suable (Civil Aeronautics Administration vs. CA, 167 SCRA 28). to sue and be sued, it is an express consent and it is suable (SSS vs. C A, 120 SCRA 707)

-if its charter is silent, inquire into its function based on the purpose for wh ich it was created (Malong vs. PNR, 138 SCRA 63) proprietaryif the purpose is to obtain special corporate benefits or earn pecun iary profit, suable governmentalif it is in the interest of health, safety and for the advancement of public good and welfare, affecting the public in general, not suable ( Balquera vs. Alcala, 295 SCRA 366) Rules Regarding Payment of Interests by Government in Money Judgments Against It: G.R.Government cannot be made to pay interests. Exceptions: 1. Eminent domain; 2. Erroneous collection of taxes; 3. Where government agrees to pay interest pursuant to law.

ARMED FORCES OF THE PHILIPPINES (AFP) The AFP is the protector of the people and the State. Its goal is to secure the sovereignty of the State and the integrity of the national territory. It consist of citizen armed force and a regular force. One police force Republic Act 6975 Mass Media It includes: 1. Radio 2. Television 3. Printed media 302 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos Full Filipinization: Section 11 (1), article XVIthe ownership and management of m

ass media shall be limited to citizens of the Philippines, or to corporations, c ooperatives or associations, wholly-owned and managed by such citizens. It prohibits combination in restraint of trade and unfair competition, and commands Congress to regulate or prohibit monopolies in commercial mass med ia. Advertisingnot treated as mass media but use of mass media. ARTICLE XVII AMENDMENTS OR REVISIONS Amendment vs. Revision Amendment Revision -piecemeal or isolated change in the Constitution. It is the generic term used t o denote change in the Constitution. - revamp or rewriting of the entire Constitution. It means overhauling of the go vernment. **Lambino vs. COMELEC -changing the form of government from presidentia l to parliamentary involves a revision and not amendment. 2 Stages of Amendment: 1. Proposal (Secs. 1-3, Art. XVII)-the adoption of the suggested change in the Constitution. A proposed amendment may come from(3 ways of proposing amendments t o, or revision of, the Constitution under Article XVII): (a) Congress i. (Sec. 1, Art. XVII) Acting as Constitutional Assembly and not as a legislativ e body. -One of the non-legislative powers; ii. By a vote of 3/4 of all its members. (3/4 of the Senate, 3/4 of the House of Representatives (b) Constitutional Convention- which may be called into existence either: i. By directly calling a Constitutional Convention by a 2/3 vote of all the Members of Congress, or; ii. By submitting the issue to the people in a plebiscite [if the two-thirds (2/ 3) vote is not obtained] by a majority vote of all the members of Congress with the question of whether or not to call a Convention to be resolved by the people in a plebiscite. (Sec.3, Art. XVII) superior- people; Theory of Conventional Sovereignty inferior- it is a mere creation of Congress;

303 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos co-equal to and independent of the 3 branches Occena vs. COMELEC 104 SCRA 1, the choice of method of proposal, i.e., whether m ade directly by Congress or through a Constitutional Convention, is within the f ull discretion of the legislature.

(c) People, through the Power of Initiative (Sec.2, Art. XVII)- A petition of at least 12% of the total number of registered voters, of which every legislative district must be represented by at least 3% of the registered voters therein --This is not a self-executing provision, it will require an enactment of law.

RA 6735 Initiative and Referendum Law INITIATIVE-the power of the people to propose amendments to the Constitution or to propose and enact legislations through an election called for the purpose. *3 kinds of initiative: 1. initiative on the Constitution- refers to a petition proposing amendments to the Constitution 2. initiative on statutes- refers to a petition proposing to enact a national legislation 3. initiative on local legislation- refers to a petition proposing to enact a r egional, provincial, municipal, city, or barangay law, resolution or ordinance [ Sec.2(a),RA6735] Section 2 (b), RA 6735 provides for: INDIRECT INITIATIVE- exercise of initiative by the people through a proposition sent to Congress or the local legislative body for action; and DIRECT INITIATIVE- the people themselves filed the petition with the COMELEC and not with Congress The COMELEC cannot validly promulgate rules and regulations to implement the exe rcise of the right of the people to directly propose amendments to the Constitut ion through the system of initiative. It does not have the power under RA 6735. Reliance on the COMELECs power under Section 2 (1), Article IX-C is misplaced, fo r the laws and regulations referred to therein are those promulgated by the COME LEC under Section 3 of Article IX-C or a law where subordinate legislation is au thorized and which satisfies the completeness and the sufficient standard tests. (Sa ntiago vs. COMELEC, 270 SCRA 106) 2. Ratification- (Sec. 4, Art. XVII) The proposed amendment shall become part of the Constitution when ratified by a majority of the votes cast in a plebiscite held not earlier than 60 nor later than 90 days after the approval of the propos al by Congress or the Constitutional Convention, or after the certificatio n by the COMELEC of the

304 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos sufficiency of the petition for initiative under Sec. 2, Art. XVII. REFERENDUM- the power of the electorate to approve or reject legislati on through an election called for that purpose.

Two (2) Classes: 1. ReferendumonStatutes- refers to a petition to approve or reject a law, or p art thereof, passed by Congress 2. Referendum on Local Law- refers to a petition to approve or reject a law, r esolution or ordinance enacted by regional assemblies and local legislative bodi es Doctrine of Proper Submission (proper frame of reference) Because the Constitution itself prescribes the time frame within which the plebi scite is to be held, there can no longer be a question on whether the time given to the people to determine the merits and demerits of the proposed amendments i s adequate. The plebiscite may be held on the same day as regular elections. Judicial Review of Amendments. The question is now regarded as subject to judici al review because invariably, the issue will boil down to whether or not the con stitutional provisions had been followed. (Sanidad vs. Comelec, 78 SCRA 333; Jav ellana vs. Exec. Secretary, 50 SCRA 50) Prohibited Measures: The following cannot be the subject of an initiati ve or referendum 1. No petition embracing more than one subject shall be submitted to the elector ate; and 2. Statutes involving emergency measures, the enactment of which is specifically vested in Congress by the Constitution, cannot be subj ect of referendum until ninety (90) days after the effectivity. (Sec. 10, RA 67 35)

Local Initiative: not less than 2,000 registered voters in case of autonomous re gions, 1,000 in case of provinces and cities, 100 in case of municipalities, and 50 in case of barangays, may file a petition with the Regional Assembly or local legis lative body, respectively, proposing the adoption, enactment, repeal, or amendme nt, of any law, ordinance or resolution. (Sec. 13, RA 6735) Limitations on Local Initiative: a. The power of local initiative shall not be exercised more than once a year; b. Initiative shall extend only to subjects or matters which are within the legal powers of the local legislative bodies to enact; and c. If at any time before the initiative is held, the local legislative body sh all adopt in toto the proposition presented, the initiative shall be cancelled. However, those

305 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R

review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos against such action may, if they so desire, apply for initiative. Limitation on Local Legislative Body vis--vis Local Initiative Sec. 125, RA 7160any proposition or ordinance approved through an initiative and referendum shall not be repealed, modified or amended by the Sang ggunian within 6 months from the date of approval thereof, and may be amended, m odified or repealed within 3 years thereafter by a vote of of all its members. I n case of barangays, the period shall be 18 months after approval.

Revision In the case of Lambino vs. COMELEC, G.R. No. 174153, October 25, 2006, the SC he ld that a peoples initiative to change the Constitution applies only to an amendm ent of the Constitution and not to its revision. Certainly, the Lambino Groups in itiative is a revision and not merely an amendment. Quantitatively, th e Lambino Groups proposed changes overhaul two articlesArticle VI on the Legislat ure and Article VII on the Executiveaffecting a total of 105 provisions in the en tire Constitution. Qualitatively, the proposed changes alter substantially the b asic plan of government, from presidential to parliamentary, and from a bicamera l to a unicameral legislature.

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Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Article XVIII TRANSITORY PROVISIONS

Section 7, Article XVIII Until a law is passed, the President may fill by appointment from a list of nomi nees by the respective sectors the seat reserved for sectoral representatives in paragraph 2, Section 5 of Article VI of this Constitution. Quintos-Deles vs. Committee on Constitutional Commissions, Commission on Appoint ments, 177 SCRA 259, the appointment of a sectoral representative by the Preside nt of the Philippines is specifically provided in the Constitution. Thus, the ap pointment of a sectoral representative falls under the 4th categorythose office rs whose appointments are vested in him in the Constitution.

Section 25, Article XVIIIdisallows foreign military bases, troops, or facilities in the country, unless the following conditions are sufficiently met: 1. It must be under a treaty; 2. The treaty must be duly concurred in by the Senate and, when so required by Congress, ratified by a majority of the votes cast by the people in a national r eferendum; and 3. Recognized as a treaty by the other contracting state. Concurrence requirement must be construed in relation to the provisions of Section 21, Article VII. The concurrence of the Senate contemplated under Section 25, Ar ticle XVIII means that at least two-thirds (2/3) of all the members of the Senat e favorably vote to concur with treaty. This provision is a special provision th at applies to treaties which involve the presence of foreign military bas es, troops or facilities in the Philippines. Under this provision, the conc urrence of the Senate is only one of the requisites to render compliance with th e constitutional requirements and to consider the agreement binding on the Phili ppines. (Bayan vs. Zamora, 342 SCRA 449) The requisites under the Constitution before foreign military bases, troops, or facilities shall be allowed in the Philippines are: 1. There must be a treaty duly concurred in by the Senate; 2. When Congress so requires, said treaty must be ratified by a majority of the 307 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

votes cast by the pe0ple in a national referendum held for the purpose; and 3. Said treaty should be recognized as a treaty also by the other contracting State. (Section 25, Article XVIII)

ADMINISTRATIVE LAW E.O. 292 That branch of public law which fixes the organization, determines the competenc e of administrative authorities who executes the law, and indicates to the indiv idual remedies for the violation of his right. Kinds: 1. Statutes setting up administrative authorities. 2. Rules, regulations, or orders of such administrative authorities pro mulgated pursuant to the purposes for which they were created. 3. Determinations, decisions and orders of such administrative authorities made in the settlement of controversies arising in their particular fields. 4. Body of doctrines and decisions dealing with the creation, operation and eff ect of determinations and regulations of such administrative authorities. Administrative Code of 1987 The Code is a general law and incorporates in a unified document the major struc tural, functional and procedural principles of governance and embodies changes i n administrative structures and procedures designed to serve the people. It cove rs the internal administration, i.e., internal organization, personnel and recruitment, supervision and discipline, and the effects of the functio ns performed by administrative officials on private individuals or parties outsi de government. Administrative Power It is concerned with the work of applying policies and enforcing orders as deter mined by proper governmental organs. It enables the President to fix a uniform s tandard of administrative efficiency and check the official conduct of his agent s. To this end, he can issue administrative orders, rules and regulations. Administrative Order It is an ordinance issued by the President which relates to specific aspects in the administrative operation of government. It must be in harmony with the law a nd should be for the sole purpose of implementing the law and carrying out the l egislative policy. Administration a. As a Function

308 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

It is the execution, in non-judicial matters, of the law or will of the State as expressed by competent authority b. As an Organization That group or aggregate of persons in whose hands the reins of government are fo r the time being. Government of the Philippines It refers to the corporate governmental entity through which the functions of th e government are exercised throughout the Philippines, including, save as the co ntrary appears from the context, the various arms through which political author ity is made effective in the Philippines, whether pertaining to the auto nomous regions, the provincial, city, municipal or barangay subdivisions or ot her forms of local government. Kinds of government: 1. INTERNALlegal side of public administration, e.g., matters concerning personne l, fiscal and planning activities. 2. EXTERNALdeals with problems of government regulations, e.g., regulation of la wful calling of profession, industries or businesses. Government Instrumentality It refers to any agency of the national government, not integrated within the de partment framework, vested with special functions or jurisdiction by law, endowe d with some, if not all, corporate powers, administering special funds, enjoying operational autonomy, usually through a charter. It includes regulatory agencie s, chartered institutions and GOCCs. Government-Owned or Controlled Corporations (GOCCs) It refers to any agency organized as a stock or non-stock corporation, vested wi th functions relating to public needs whether governmental or proprietary in nat ure, and owned by the Government directly or through its instrumentalities eithe r wholly, or where applicable as in the case of stock corporations, to the exte nt of at least fifty-one percent (51%) of its capital stock. a. Proprietaryif the purpose is to obtain special corporate benefits or earn pec uniary profit b. Governmentalif it is in the interest of health, safety and for the advancement of public good and welfare, affecting public in general. (Blaquera vs. Alcala, 295 SCRA 366, September 11, 1998) Those with special charters are government corporations subject to its provision s, and its employees are under the jurisdiction of the CSC. The PNRC was not imp liedly converted to a private corporation simply because its charter was amended to vest in it the authority to secure loans, be exempted from payment of all du ties, taxes, fees and other charges, etc. (Camporedondo vs. NLRC, G.R. No. 12904 9, August 6, 1999)

309 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Agency of the Government It refers to any of the various units of the Government, including a department, bureau, office, instrumentality, or government-owned or controlled corporation, or a local government or a distinct unit therein.

Administrative Bodies or Agencies Organ of government, other than a court, and other than a legislature, which aff ects the rights of private parties either through adjudication or rule-making. They are created either by: 1. Constitutional provisions; 2. Legislative enactments; or 3. Authority of law. A body or agency is administrative where its function is primarily regulatory ev en if it conducts hearings and determines controversies to carry out its regulat ory duty. On its rule-making authority, it is administrative when it does not ha ve discretion to determine what the law shall be but merely prescribes details f or the enforcement of the law.

Administrative Regulationsalso known as PIECES OF SUBORDINATE L EGISLATION, QUASI-LEGISLATIVE POWERS It cannot extend the law or amend a legislative enactment, for settled is the ru le that administrative regulations must be in harmony with the provisions of the law. (Land Bank vs. CA, 249 SCRA 149)

Kinds of Administrative Rules/Regulations a. Supplementary or detailed legislationto fix the details in the execution and enforcement of a policy set out in the law b. Interpretative legislationconstruing or interpreting the provisions of a sta tute to be enforced c. Contingent legislationmade by administrative authority on the existen ce of certain facts or things upon which the enforcement of the law depends Requisites for A Valid Administrative Regulation 1. Promulgation must be authorized by the legislature 2. The administrative RR must be in accordance with the authority granted by th e legislatureit must not exceed; must be within the scope or purview of the law

310 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

3. Promulgation must be in accordance with the duly prescribed procedures PUBLICATION: (Taada vs. Tuvera) Article 2 of the Civil Code. Publication is indispensable. It speaks of laws and refers as well as to adminis trative RR promulgated by administrative bodies except: a. Those merely internal in nature b. Those merely interpretative Article 3 of the Civil Code presupposes that the law has been publis hed in the O.G. or in a newspaper of general circulation. 4. The administrative RR must be REASONABLEnot whimsical, not capricious, not op pressive; it must pass the test of reasonableness Administrative Rules and Regulations with Penal sanctions; Additional quisites: 5. The law must itself declare as punishable the violation of the ARR; 6. The law should define or fix the penalty for the violation of the ARR. Powers of Administrative Bodies 1. Quasi-Legislative or Rule-making power; 2. Quasi-Judicial or Adjudicatory power; and 3. Determinative powers Quasi-Legislative function consists of issuances of rules and regulations general applicability prospective; it envisages the promulgation of a rule or regulation generally ap plicable in the future refers to its end product called order, reward or decision applies to specific situation present determination of rights, privileges or duties as of previous or present t ime or occurrence Holy Spirit Homeowners Association vs. Secretary Defensor, G.R. No. 163980, Augu st 3, 2006, prohibition lies against judicial or ministerial functions, but not against legislative or quasi-legislative functions. In subordinate legislation, as long as the passage of the rule or regulation had the benefit of a hearing, t he procedural due process requirement is deemed complied with. Quasi-Legislative Power This is the exercise of delegated legislative power, involving no discretion as to what the law shall be, but merely the authority to fix the details in the exe cution or enforcement of a policy set out in the law itself. The rules and regulations (RR) issued by administrative authorities pursuant to the powers delegated to them have the force and effect of law; they are binding on all persons subject to them, and the courts will take judicial notice of them . Quasi-Judicial function Re

311 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R

review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos PSDSA vs. Sec. De Jesus, G.R. No. 157286, June 16, 2006, it must be stressed that the power of administrative officials to promulgate rules in impl ementation of a statute is necessarily limited to what is provided for in the le gislative enactment. The implementing rules and regulations of a law cannot exte nd the law or expand its coverage, as the power to amend or repeal a statute is vested in the legislature. It bears stressing, however, that the administrative bodies are allowed under their power of subordinate legislation to implement the broad policies laid down in a statute by filling in the details. All that is requ ired is that the regulation be germane to the objectives and purposes of the law ; that the regulation does not contradict but conforms with the standards prescr ibed by law.

Under the law, it is the DOTC which is authorized to administer and enforced all laws, rules and regulations in the field of transportation and to regulate rela ted activities. Since the DPWH has no authority to regulate activities related t o transportation, the Tollways Regulatory Board cannot derive its power from the DPWH to issue regulations governing limited access facilities. (Ames Mirasol vs . DPWH, G.R. No. 158793, 2006) Necessity of Notice and Hearing There is no constitutional requirement for a hearing in the promulgation of a ge neral regulation by an administrative body. In Corona vs. United Harbor Pilots Association of the Philippines, G.R. No. 111953, December 12, 1997, the SC reiterated the rule that prior hear ing is not necessary for the issuance of an ARR.

Doctrine of Legislative Approval by Re-Enactmentthe rules and regulations promulg ated by the proper administrative agency implementing the law are deemed confirm ed and approved by the Legislature when said law was re-enacted by later legisla tion or through codification. The Legislature is presumed to have full knowledge of the contents of the regulations then at the time of re-enactment. Determinative Powers 1. Enablingto permit or allow something which the law undertakes to regulate 2. Directingillustrated by the power of assessment of the BIR or Burea u of Customs 3. Dispensingto exempt from a general prohibition, or relieve an individual or c orporation from an affirmative duty 4. Examininginvestigatory powerconsists in requiring production of books, p apers, etc. 5. Summarypower to apply compulsion or force against persons or property to effe ctuate a legal purpose without a judicial warrant to authorize such action Quasi-Judicial or Adjudicatory Power 312 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

The administrative agency is acting as a court of justice, conducting hearings a nd rendering decisions. The proceedings partakes the character of judicial proce edings Sec. 1(1), Article VIIIThe judicial power shall be vested in one SC and in such l ower courts as may be established by law. outside of this, they refer to the admi nistrative agency performing quasi-judicial functions. Requisites for a valid exercise of Quasi-Judicial Function of Administrative Agency 1. Conferment of jurisdictionjurisdiction is conferred by the Constitution or la w; it cannot be implied, cannot be waived, it cannot be left to the will of the peo ple. The power to promulgate rules of procedure Once vested with quasi-judicial power, by virtue of the DOCTRINE OF NECESSARY I MPLICATION, it provides the power to promulgate the rules of procedure. The rules of procedure are subject to the review power of the SC. [Sec. 5(5), Art. VIII]: Promulgate rules concerning the protection and enforceme nt of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal ass istance to the underprivileged. Such rules shall provide a simplified and ine xpensive procedure for the speedy disposition of cases, shall be uniform f or all courts of the same grade, and shall not diminish, increase or modify subs tantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court. In Cario vs. CHR, 204 SCRA 483, the power to investigate is different from the po wer to adjudicate. The court has observed that it is only the first of the enumer ated powers and functions that bears any resemblance to adjudica tion, but that resemblance can in no way be synonymous to the adjudicatory po wer itself. Power to investigate Power to adjudicate Receiving evidence and make findings of fact in a controversy (in the case of CH R, claimed human rights violations involving civil and political rights) The faculty of receiving evidence and make factual conclusions in a controv ersy accompanied by the authority of applying the law to those factual conclusio ns to the end that the controversy may be decided or determined authoritatively, finally and definitely, subject to appeals or modes of review as may be provide d by law.

313 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos 2. Observance of Administrative Due Processmandatory. The requisites of adminis trative due process, as enumerated in Ang Tibay vs. CIR, 40 O.G. 7th Supp. 128 a re: 7 Cardinal/Primary Rights in ADP:

a. There must be a hearing; b. The tribunal must consider the evidence presented; c. Decision must have something to support itself; d. The evidence must be substantialquantum of evidence; e. The decision must be based on the evidence adduced at the hearing, or at lea st contained in the record and disclosed to the parties; f. The Board or its judges must act on its or their independent consideration of the facts and the law of the case, and not simply accept the views of a subor dinate in arriving at a decision; and g. The decision must be rendered in such a manner that the parties to the contr oversy can know the various issues involved and the reason for the decision rend ered. Montemayor vs. Araneta University Foundation (1977)Montemayor was a full-time pro fessor. Charged with immoral advances, he was investigated with the assistance o f counsel, and dismissed in accordance with the Manual of policies of the Univer sity. On appeal to the NLRC, he was ordered reinstated. The SC held that his rem oval was with due process. There was no violation of due process in the labor pr oceeding but it did not preclude Montemayor from suing the University for damage s.

In Lumiqued vs. Exevea, G.R. No. 117565, November 18, 1997, the CAR Regional Dir ector was charged administratively. He was asked several times if he would like to be assisted by counsel but he refused alleging that he can handle his case as he was from UP. After he was found guilty, he died. The heirs now claimed that the entire proceeding was null and void. They alleged that Lumiqued was not prop erly assisted by counsel. It is the right of the accused to be assisted by couns el. The SC held that the right of the accused that was being alleged by the heir s is a right of the accused during custodial investigation which is part of a cr iminal proceeding. This is not a criminal proceeding. Administrative due process does not necessarily require the assistance of counsel. A party in an administr ative proceeding has the option of engaging a counsel or not. He may or may not be assisted by counsel. In this case, the Regional Director was even asked if he would like to be assisted by counsel but he refused to. The right to counsel is not indispensable to due process unless required by the Constitution or the law . In Gonzales vs. NLRC and Ateneo de Davao University, G.R. No. 125735, August 26, 1999, the SC held that there was a violation of administrative due process 314 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos where the teacher was dismissed by the university without having been gi ven full opportunity to confront the witnesses against her. The essence of due process is simply an opportunity to be heard or, as applied t o administrative proceedings, an opportunity to seek reconsideration of the acti on or ruling complained of (Dela Cruz vs. Abille, G.R. No. 130196, February 26, 2001), or an opportunity to explain ones side (Pilipinas Loan Company vs. SEC, G. R. No. 104720, April 4, 2001).

In administrative proceedings, procedural due process simply means the opport unity to explain ones side or the opportunity to seek a reconsideration of the ac tion or rulingcomplainedof. To be heard does not mean only verbal arguments in cou rt; one may also be heard through pleadings. Where opportunity to be heard, eith er through oral arguments or pleadings, is accorded, there is no denial of proce dural due process (Casimiro vs. Tandog, G.R. No. 146137, June 8, 2005). CSC vs. CA, G.R. No. 161086, November 24, 2006, in administrative proceedings, t he filing of charges and giving reasonable opportunity for the person so charged to answer the accusations against him constitute the minimum requirements of du e process. As long as a party was given opportunity to defend his interests in d ue course, he was not denied due process. Power of Contemptjudicial; inherent power of the court. It must be used on the pr eservative not on the vindictive principle. An administrative body may exercise the power of contempt if expressly granted/vested by law to the administrative a gency. The doctrine of necessary implication cannot be applied here. In Guevarra vs. COMELEC, 104 Phil. 268, the power to punish contempt must be ex pressly granted to the administrative body; and when so granted, may be exercised only when the administrative body is actually performing quasi-judi cial functions. In Simon, Jr. vs. CHR, 229 SCRA 117, the CHR is constitutionally authorized to ad opt its operational guidelines and rules of procedure, and cite for contempt for violations thereof in accordance with the Rules of Court. Accordingly, the CHR acted within its authority in providing in its revised rules, its power to ci te or hold any person in direct or indirect contempt, and to impose the appropri ate penalties in accordance with the procedure and sanctions provided for in the Rules of Court. That power to cite for contempt, however, should be understood t o apply only to violations of its adopted operational guidelines and rules of pr ocedure essential to carry out its investigatorial powers. To exemplify, the power to cite for contempt could be exercised against persons who refus e to cooperate with the said body, or who unduly withhold relevant information, or who decline to honor summons, and the like, in pursuing its investigative wor k. The order to desist (a semantic interplay for a restraining order) is not

315 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R

review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos investigatorial in character but prescinds from an adjudicative power that it do es not possess. In this case, the power of contempt arose from an erroneous assumption of jurisd iction. It is not valid. There is grave abuse of discretion to both issues. Administrative determinations where notice and hearing are not necessary for due process: 1. Grant of provisional authority for increased rates, or to engage in a partic ular line of business 2. Summary proceedings of distraint and levy upon the property of a delinquent taxpayer 3. Cancellation of a passport where no abuse of discretion is committed by the Secretary of Foreign Affairs 4. Summary abatement of a nuisance per se which affects the immediate safety of persons or property 5. Preventive suspension of a public officer or employee pending investigation of administrative charges filed against him In PBC vs. CIR, G.R. No. 112024, January 28, 1999, Article 8 of the Civil Code r ecognizes judicial decisions applying or interpreting statutes as part of the legal system of the country. But administrative decisions do no t enjoy that level of recognition. A memorandum-circular of a bureau head co uld not operate to vest a taxpayer with a shield against judicial action. For th ere are no vested rights to speak of respecting a wrong construction of the law by administrative officials and such wrong interpretation could not place the Go vernment in estoppel to correct or overrule the same.

Administrative Appeal and Review a. Where provided by law, appeal from an administrative determination may be ma de to a higher or superior administrative officer or body. b. By virtue of the power of control by which the President exercises o ver all executive departments, the Presidentby himselfor through the Department S ecretaries (pursuant to the Alter-Ego Doctrine), may affirm, modify, alter, or r everse the administrative decision of subordinate officials and employees. (Aran eta vs. Gatmaitan, 101 Phil. 328). c. The appellate administrative agency may conduct additional hearings in he app ealed case, if deemed necessary. (Reyes vs. Zamora, 90 SCRA 92). Doctrine of Res Judicata It does not apply to administrative decisions. It forbids the reopening of a matter once determined by competent authority acti ng within their exclusive jurisdiction. (Ysmael vs. Deputy Executive Secretary, 190 SCRA 673)

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ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Doctrine of Primary Jurisdiction (or Prior Resort) Courts cannot and will not resolve a controversy involving a question which is w ithin the jurisdiction of an administrative tribunal, especially where the quest ion demands the exercise of sound administrative discretion requiring th e special knowledge, experience and services of the administrative tribunal to determine technical and intricate matters of fact. In recent years, it has been applied to matters that demand the special competen ce of administrative agencies even if the question involved is also judicial in character. It applies where a claim is originally cognizable in the courts, and c omes into play whenever enforcement of the claim requires the resolution of issu es which, under a regulatory scheme, have been placed within the s pecial competence of an administrative body; in such case, the judicial pr ocess is suspended pending referral of such issues to the administrative body fo r its view. In cases where the doctrine of primary jurisdiction is clearly applicable, the c ourt cannot arrogate unto itself the authority to resolve a controversy, the jur isdiction over which is lodged with an administrative body of special competence . (Villaflor vs. CA, 280 SCRA 287) Doctrine of Exhaustion of Administrative Remedies Before a party is allowed to seek the intervention of the court, it is a pre-con dition that heshouldhaveavailedofallthemeansofadministrativeprocessesaffordedhim . Hence, if a remedy within the administrative machinery can still be resorted t o by giving the administrative officer concerned every opportunity to decide on a matter that comes within his jurisdiction then such remedy should be exhausted first before the courts judicial power can be sought. The premature invocation o f courts jurisdiction is fatal to ones cause of action. Sec. 187, LGCexpressly provides that administrative remedies must be exhausted fi rst before the constitutionality or legality of a tax ordinance may be challenge d in court. In Philippine Coconut Desiccators vs. PhilCoA, G.R. No. 110526, February 10, 1998, only decisions of administrative agencies made in the exercise of quas i- judicialpowers are subject to the rules of exhaustion of administrative remed ies. In like manner, the doctrine of primary administrative jurisdiction applies only where the administrative agency exercises quasi-judicial or adjudicatory p owers. Thus, where what is assailed is the validity or constitutionality of a rule or r egulation issued by the administrative agency in the performance of its quasi-le gislative function, the regular courts have jurisdiction to pass upon the same ( Smart Communications vs. NTC, G.R. No. 151908, August 12, 2003).

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Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Doctrine of Primary Jurisdiction (Prior Resort Lack of jurisdiction cannot be waived; jurisdiction is conferred by law Doctrine of Exhaustion of Administrative Remedies Lack of Cause of action; waivable; premature resort to the courts necessarily be comes fatal to the COA. General rule: Exhaustion of administrative remedies must first be made before resorting to court actions. Failure to exhaust will not affect the juris diction of the court but the complainant is deprived of a COA which is a ground for a motion to dismiss. However, if no motion to dismiss is filed on this groun d, there is deemed to be a waiver. Exceptions: 1. If the issue involves a pure question of lawuseless to exhaust. Only the cour ts can declare with finality what are purely legal question. In Castro vs. Secretary Gloria, G.R. No. 132174, August 20, 2001, the SC said th at there is a question of law when the doubts or differences arise as to what th e law is on a certain state of facts. There is questionoffact when the doubts or differences arise as to the truth or falsity of alleged facts. 2. If the law does not provide for an administrative remedyjust go to the regula r courts. In Estuerte vs. CA, 193 SCRA 541, the SC said that in a civil action f or damages, the courts concern is whether or not damages, personal to the plaintiff, were caused by the acts of the defendants; it can proceed indepen dently of the administrative action. Accordingly, the doctrine of exhaustion of administrative remedy does not apply. 3. Doctrine of Qualified Political AgencyALTER EGO DOCTRINE. In Nazareno vs. CA, 267 SCRA 589, the SC held that when the Undersecretary of DENR denied the motio n for reconsideration, he was acting on behalf of the Secretary of DENR; accordi ngly, administrative remedies had been exhausted. 4. Where there is unreasonable delay or official inaction. In Republic vs. Sandiganbayan, 255 SCRA 438, the inaction of the PCGG on the mot ion filed by the respondent and co-respondent [it took 7 years before the PCGG f iled its motion to dismiss based on failure to exhaust administrative remedies] gave rise to unreasonable delay. 5. The administrative action is patently illegal amounting to lack or excess of jurisdiction. In Cabada vs. Alunan, 260 SCRA 838, the SC said that the Commissioner of the NAP OLCOM who denied petitioners appeal to the Secretary of DILG acted in a

318 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos patently illegal manner, because only the Secretary of DILG could act on the app eal and the NAPOLCOM, being a collegial body, cannot be bound by the act of an individual Commissioner. 6. When there is irreparable injury or threat thereof, unless judicial recourse is immediately made. 7. When it would amount to a nullification of the claim.

8. When the subject matter is a private land in land case proceeding. 9. When there are circumstances indicating the urgency of judicial intervention . 10. When due process of law is clearly violated. 11. When there is estoppel on the part of the administrative agency concerned. In Vda de Tan vs. Veterans Backpay Commission, 105 Phil. 377, petitioner, as wid ow of a Chinese guerilla veteran who rendered military service during the Japane se occupation, filed an application for back pay before the Veterans Back Pay Co mmissions. xxx The respondent Commission is in estoppel considering that in it s resolution: The opinions promulgated by the Secretary of Justice are advisory in nature, which may either be accepted or ignored by the office seeki ng the opinion, and any aggrieved party has the court for recourse xxx. thereby l eading the petitioner to conclude that only final judicial ruling in her favor would be accepted by the Commission. Non-exhaustion of administrative remedies is not jurisdictional. It only renders the action premature, i.e., claimed cause of action is not ripe for judicial de termination and for that reason a party has no cause of action to ventilate in c ourt. (Carale vs. Abarintos, 269 SCRA 132) The doctrine of exhaustion of administrative remedies and the corollary doctrine of primary jurisdiction, which are based on sound policy and practical consider ations, are not inflexible rules. There are many accepted exceptions such as unr easonable delay or official inaction that will irretrievably prejudice the compl ainant and when the question involved is purely legal and will ultimately have t o be decided by the courts of justice. (RP ETC vs. Lacap, G.R. No. 158253, March 2, 2007)

Judicial Review of Administrative Decisions; When Made: 1. To determine constitutionality or validity of any treaty, law, ordinance, ex ecutive order or regulation; 2. To determine jurisdiction of any administrative board, commission or officer ;

319 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

3. : a. b. c. w.

To determine any other questions of facts when necessary to determine either Constitutional or jurisdictional issue; Commission of abuse of authority; and When administrative fact-finding body is unduly restricted by an error of la

4. To determine any other questions of law.

General Rule: Findings of facts of administrative agencies accorded great weight by the courts. Exceptions: 1. Factual finding is not supported by evidence; 2. Findings are vitiated by fraud, imposition or collusion; 3. Procedure which led to factual findings is irregular; 4. Palpable errors are committed; 5. Grave abuse of discretion, arbitrariness or capriciousness is manifest. NHA vs. Pascual, G.R. No. 158364, November 28, 2007, the decisions and orders of administrative agencies, rendered pursuant to their quasi-judicial authority, h ave upon their finality, the force and binding effect of a final judgment within the purview of the doctrine of res judicata.

BRANDEIS DOCTRINE OF ASSIMILATION OF FACTSwhere what purports to be a finding upo n a question of fact is so involved with and dependent upon a question of law as to be in substance and effect decision on the latter, the Court will, in order to decide the legal question, examine the entire record including the evidence i f necessary.

PUBLIC INTERNATIONAL LAW Law that deals with the conduct of States and international organizations, their relations with each other and, in certain circumstances, their relations with persons, natural or juridical.

320 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

International Lawbody of principles, norms and processes which regulates he relat ions of States and other international persons, and governs their conduct affect ing the interests of the international community of States as a whole. This concept manifests in the codification of jus cogens or pe remptory norms as part of positive international law. The Vienna Convention on t he Law of Treaties specifies jus cogens norms as a ground for nullification or t ermination of treaties. For this purpose, article 53 of the Convention defines a jus cogens norm, thus: a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same charact er. Basis of International Law 1. Law of Nature Schoolbased on rules of conduct discoverable by every individual in his own conscience and through application of right reasons. 2. Positivist Schoolagreement of sovereign states to be bound by it (express in conventional law, implied in customary law, and presumed in general principles) 3. Eclectic or Groatian Schoola compromise between the first 2 schools and submi ts that international law is binding partly because it is good and right and par tly because states agreed to be bound by it. Functions of International Law: 1. Promote international peace and security; 2. Foster friendly relations among nations and discourage use of force I the resolution of difference among them; 3. Provide for orderly regulation of conduct of states in their mutual dealings ; and 4. Ensure international cooperation in pursuit of certain common purposes of eco nomic, social, cultural or humanitarian character.

Basic norms or principles of international law: 1. States shall refrain in their international relations from the threat or us e of force against the territorial integrity or political independence of any St ate, or any other manner inconsistent with the purposes of the UN. 2. States shall settle their international disputes by peaceful means in such a manner that international peace and security and justice are not endangered.

321 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

3. tion 4. 5. 6. 7.

The duty of States not to intervene in matters within the domestic jurisdic of any State. The duty of States to cooperate with one another. The principle of equal rights and self-determination of peoples. The principle of sovereign equality of States. States shall fulfill in good faith the obligations assumed by them.

Sources of International Law a. International treaties and conventions, whether general or particular, estab lishing rules expressly recognized by the contesting States; Vienna Convention on the Law of Treaties, Hague Convention Treaty Elements: 1. International agreement 2. States 3. Written 4. Governed by international law Making: General rule: Full powers needed Exceptions: 1. Heads of states/governments 2. Foreign affairs 3. Heads of diplomatic missions-limited 4. Representatives to international conferenceslimited (Note: Subsequent confirmation of acts of representatives without full powers va lidates action on behalf of state) Adoption: General rule: if bilateral or few states, all must concur Exception: international conference (2/3) Exception to the Exception: if 2/2 provide different rule b. Internat ional customs, as evidence of a general practice accepted as law; Elements of International Custom: 1. General practice, characterized by uniformity and consistency; Prevailing practice by a # of states, repeated over a considerable period of time 2. Opinio juris sive necessitatis, or recognition of that practice as legally b inding. Doctrine of state immunity, prohibition against slavery, principle of exterritori ality

322 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos Instant Customa binding customary rule established by the spontaneous activity of a great number of states and need not be observed for a considerable period. e.g. application of self-defense in invading Afghanistan after 911 c. The general principles of law recognized by civilian nations;

Derived from law of nature and are observed by the majority of states because the y are believed to be good and just. d. Judicial decisions and the teachings and writings of the most highly qualif ied publicists of the various nations and advisory opinions of the ICJ, as subs idiary means for the determination of rules of law. e. EquityArticle 38 (2) provides that the ICJ may decide cases ex a quo et bono (by what is fair and good) Sources of law refer to norms derived from international conventions or treaties , custom, and general principles of law. The distinctive character of these norm s is that they are created, or they acquire binding effect, through the methods pointed ou t above. Formal Sources Material Sources

consists of the methods and procedures for the creation of norms;

may refer to customary norms are the substantive evidence of the existence of norms;

may refer to judicial decisions and the works of highly sts or jurists, which embody norms of international law

qualified

publici

THE LAW ON TREATIES (See Atty. Sandovals 2008 handouts in International Law, page 9)

JUS COGENSa (peremptory) norm which States cannot derogate or deviate from in the ir agreements. It is therefore a mandatory norm and stands on a higher category than a jus dispositivum norm which states can set aside or modify by agreement.

323 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos General Rule: Parties cannot enter into a treaty contrary to jus cogens or norms recognized and accepted by international community; non-derogable Examples: unlawful use of force, commission of a criminal act, trade in slaves, piracy, genocide, human rights violations, equality of states, and self-determin ations

Principles which determine the order of precedence in the application of rules o r norms of International Law: 1. Lex superior derogate inferiorirules from one source of law prevail over thos e derived from another source. 2. Lex posterior derogate priorilater rules prevail over the earlier. 3. Lex specialis derogate generaliparticular rules prevail over the general.

International Law Law of coordination

Municipal Law

regulates relation of states and other international persons derived principally from treaties, international customs and general principles of law resolved thru state-to-state transactions collective responsibility because it attaches directly to the state a nd not to its nationals Law of subordination (issued by political superior) regulates relations of individuals among themselves or with their own states consists mainly of statutory enactments, and to a lesser extent executive o rders and judicial pronouncements redressed thru local administrative and judicial processes breach of which entails individual responsibility

Rules in case of conflict between IL and ML: Efforts should first be exerted to harmonize them, so as to give effect to both since it is to be presumed that municipal law was enacted with proper regard for the generally accepted principles of international law in observance of the Inc orporation Clause in Section 2, Article II of the Constitution. If a local court is deciding:

324 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos If conflict is with the Constitution, the latter prevails. Sec. 5(2a), Article VI II of the Constitution provides that the SC has the power to declare a treaty or executive agreement unconstitutional.

If conflict is with a statute, IL should be given equal standing with, but not su perior to, national legislative enactments. If an international tribunal is deciding: International law is superior to municipal law, because international law provid es the standard by which to determine the legality of a States conduct. By the do ctrine of pacta sunt servanda, a state may not invoke its internal law to avoid a treaty obligation. Relation of IL to ML: (2 Views) 1. MonistIL is the same as ML 2. Dualistthey are disctinct from each other by purpose. IL becomes part of ML by incorporation or transformation. INCORPORATION CLAUSESection 2, Article II of the Constitution-- The Phili ppine renounces war as an instrument of national policy, adopts the generally a cceptedprinciplesofinternationallawaspartofthelawoftheland and adheres to the po licy of peace, equality, justice, freedom, cooperation, and amity with all natio ns. Under the doctrine of incorporation, rules of international law form part of the law of the land and no further legislative action is needed to make such rules applicable in the domestic sphere. How is it applied by local courts? The doctrine is applied whenever municipal tribunals (or local courts) are confr onted with situations in which there appears to be a conflict between a rule of international law and the provisions of the Constitution or statute of the local state. Efforts should first be exerted to harmonize them, so as to give effect to both since it is to be presumed that municipal law was enacted with proper re gard for the generally accepted principles of international law in observance of the Incorporation Clause in Section 2, Article II of the Constitution. In a sit uation, however, where the conflict is irreconcilable and a choice has to be mad e between a rule of international law and municipal law, jurisprudence dictates that municipallawshouldbeupheldbythemunicipalcourts for the reason that such co urts are organs of municipal law and are accordingly bound by it in all circumstances. The fact that international law has been made part of the la w of the land does not pertain to or imply the primacy of international law over national or municipal law in the municipal sphere. The doctrine of incorporatio n, as applied in most countries,

325 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos decrees that rules of international law are given equal standing with, but are not superior to, national legislative enactments. Accordingly, the principle of lex posterior derogate priori takes effecta treaty may repeal a statute and a st atute may repeal a treaty. In states where the Constitution is the highest law of the land, such as the Republic of the Philippines, both statutes and treaties may be invalidated if they are in conflict with the Constitution. (Secretary of Justice vs. Hon. Ralph Lantion, G.R. No. 139465, January 18, 2000) The incorporation clause assumes the existence of international law which binds the Philippines as a State. It thus becomes a method by which the Philippines ca n carry out its obligations under international law within its territorial juris diction. It creates legal rights and obligations within Philippine territory and regulate s the conduct of government official and organs as well as the relations of indi vidual citizens with each other and with the government. Questions of internatio nal law may be submitted to Philippine courts for decision. The outcome of litig ation, however, does not affect the binding nature of international law in the r elation of the Philippines with other States and other international persons. Judicial notice dispenses with the burden of proving generally accepted principles of international law. Theoretically at least, its cumulative effect as combined with the incorporation clause is torequirenoproofatallfortheapplicatio nofgenerally acceptedprinciplesofinternationallawtobecomeoperativeasPhilippinela w in a case before a Philippine court. In short, it is as good as statutory law in terms of probative value.

Identified Parts of Domestic Law as Derived from Generally Accepted Principles of International Law: 1. Rules and principles of land warfare and of humanitarian law under Hague and Geneva Conventions 2. Pacta sunt servanda 3. Human rights 4. A foreign army allowed to march through a friendly country or to be statione d in it, by permission of its government or sovereign, is exempt from the civil

and criminal jurisdiction of the place

326 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos 5. Judicial acts not of a political complexion of a de facto government establi shed by the military occupant in an enemy territory is valid under international law 6. Private property seized and used by the enemy in times of war under circumsta nces not constituting valid requisition does not become enemy property and its p rivate ownership is retained, the enemy having acquired only its temporary use 7. The State has the right to protect itself and its revenues, a right not limi ted to its own territory but extending to the high seas 8. Principle of restrictive sovereign immunity 9. Principle in diplomatic law that the receiving state has the special duty to protect the premises of the diplomatic mission of the sending State 10. The right of a citizen to return to his country Holy See vs. del Rosario, the Court has declared in an obiter dictum that even w ithout affirmation in the incorporation clause of the Constitution, such principles of international law are deemed as part of the law of the land as a condition and consequence of our admission in the society of nations, under the doctrine of incorporation. And upon admission in the international society, the state is automatically obligated to comply with these principles. DOCTRINE OF TRANSFORMATIONrequires the enactment by the legislative body of such international law principles as are sought to be part of municipal law. In the case of Laguna Lake Development Authority vs. CA, 231, SCRA 292, it was h eld that Section 6, Article II of the Constitution was taken from the Universal Declaration of Human Rights and the Alma Conference Declaration of 1978 recogniz ing health as a fundamental human right. Thus, the authority of the LLDA to issu e a cease and desist order to prevent pollution of Marilao River was upheld on t he basis of the principle of necessary implication. Provisions of the Constitution which concern International Law 1. Article INational Territory 2. Article II, Section 2Incorporation Clause 3. Article II, Section 4defense of state 4. Article II, Section 7independent foreign policy 5. Article II, Section 8freedom from nuclear weapons 6. Article III, Section 6liberty of abode 7. Article IVCitizenship 327 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R

review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos 8. 9. 10. 11. 12. 13. Article Article Article Article Article Article VI, Section 23State of war VII, Section 21treaty VIII, Section 5cases affecting ambassadors XII, Section 2ownership of lands and exploration of resources XVIII, Section 4treaties XVIII, Section 25foreign military troops

Subject of International Lawis an entity with capacity of possessing internationa l rights and duties and of bringing international claims. This entity is sa id to be an international person or one having an international personal ity, on the basis of customary or general international law. It includes: 1. State; 2. Colonies and dependenciesthey are considered as part and parcel of the parent state, through which all its external relations are transacted with other state s; 3. Territories under international control or supervisionthese are non-se lf- governing territories which have been placed under international sup ervision to insure their political, economic, social and educational advancemen t; Mandatesformer territorial possessions of states defeated in World War I and p laced under the control of the League of Nations. Trust territoriessome of the mandates that were placed under the Trusteeship Council of the UN Condominiumis a territory jointly administered by two states. 4. Belligerent communitiesgroup of rebels under an organized civil government wh o have taken up arms against the legitimate government. When recognized , considered as a separate state for purposes of conflict and entitled to all th e rights and subjected to all the obligations of a full-pledged belligerent unde r the laws of war; 5. International administrative bodiescreated by agreement among states may be v ested with international personality when two conditions concur: a. Their purposes are mainly non-political; b. They are autonomous and not subject to the control of any state. 6. The United Nations(See discussion below); 7. The Vatican City and the Holy See The Holy See has all the constituent elements of Statehood. It has all the rights of a state, including diplomatic intercourse, immunity from foreign jurisdictio n, etc. The Vatican was constituted as a territory under the Sovereignty of Holy See. In the case of Holy See vs. del Rosario, 238 SCRA 524, the SC distinguished Vatican City from Holy See wherein the latter is an international person with wh ich the Philippines had diplomatic ties since 1957. 328 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos 8. of a. of b. he c. Individuals, to a certain extentthey have also been granted a certain degree international personality under a number of international agreements: UN Charter provision on faith in fundamental human rights, dignity and worth the human person, and in the equal rights of men and women; Universal Declaration of Human Rights provision on the inherent dignity and t equal and inalienable rights of all members of the human family; Some treatiesTreaty of Versailles which confer on individuals the right to b

ring suit against States before national or international tribunals; d. The need of States to maintain international standard of justice in the trea tment of aliens; e. The Genocide Convention which condemns the mass extermination of national, et hnic, racial or religious groups; f. The 1930 Hague Convention with its rules to prevent the anomalous condition of statelessness and the 1954 Covenant Relating to the Status of Stat eless Persons, which grants stateless individuals certain basic rights; and g. The 1950 European Convention on Human Rights and fundamental Freedoms, which grants private associations and individuals the right to file complaints before the European Court on Human Rights. If an entity is not a subject of international law as such, it may still assume certain characteristics of international personality but in a special or restric ted context such as that defined by agreement, recognition or acquiescence. An individual may be a subject of international law (independently of his State, an individual may be tried for terrorism (Bin Laden), war crimes. The Rome Stat ute has created a permanent international criminal court. May individuals assume the status of subjects of international law? Yes, but on the basis of agreement or in specific context, and not in accordance with general or customary international law. Government of Hong Kong Special Administrative Region vs. Hon. Olalia, Jr. G.R. No. 153675, April 19, 2007 (See Atty. Sandovals 2008 handouts in International La w, page 1) Are international organizations considered subjects of international law? Yes, their status is determined by agreement and not by general or customary in ternational law. The criteria of a legal personality have to be met. 1. A permanent association of states, with lawful subjects, equipped with organ s; 2. A distinction, in term of legal powers and purposes, between the organizatio n and its member states; 329 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos 3. The existence of legal powers exercisable on the international plane and not solely within the national systems of one or more states.

STATEa community of persons, more or less numerous, permanently occupying a defin ite portion of territory, independent of external control, and possessing a gove rnment to which a great body of inhabitants render habitual obedience. (CIR vs. Campos Rueda, 42 SCRA 23) It is a group of people living together in a fixed territory, organized for poli tical ends under an independent government, and capable of entering into interna tional relations with other states.

Basic Criteria for Statehood (elements): 1. Permanent population; Peoplea group of individuals, of both sexes, living together as a community. They must be sufficient in number to maintain and perpetuate themselves. 2. Defined territorya fixed portion of the earths surface occupied by the inhabit ants; 3. Governmentmust be organized, exercising control over and capable of maintaini ng law and order within the territory; and 4. Capacity to enter into relations with other Statesrefers to independence, tha t is, freedom from outside control in the conduct of its foreign (and internal) affairs, which many highly qualified publicists consider as the decisive criteri on of statehood. 5. Civilization 6. Recognition other suggested/additional elements

Creation of State: 1. By revolution; 2. Unification; 3. Secession; 4. Assertion of independence; 5. Agreement; and 6. Attainment of civilization. Extinction of States: 330 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos 1. By extinction or emigration en masse of its population; 2. Loss of territory; and 3. Overthrow of government resulting in anarchy. Principle of State Continuityas long as the elements of the State are present, th e State shall continue in existence. Succession of States: May be Universal or Partial Consequences: 1. Political laws are abrogated 2. Municipal laws remain in force 3. Treaties are discontinued, except those dealing with local rights and duties , such as those establishing easements and servitudes; 4. All rights of the predecessor state are inherited, but successor state

can assume and reject liabilities at its discretion Succession of Governments: The integrity of the State is not affected. The State continues as the same inter national person except that its lawful representative is changed. Consequences: 1. All rights of the predecessor government are inherited by the succe ssor; 2. Where the new government was organized by virtue of constitutional reform du ly ratified in a plebiscite, all obligations of the predecessor are likewise ass umed; however, 3. Where the new government is established through violence, the new government may lawfully reject purely personal or political obligations of the predecessor , but not those obligations contracted by it in the ordinary course of official business. Classes of States: A. INDEPENDENThas freedom to direct and control foreign relations withou t restraint from others states. It may be: a. Simplesingle central government with power over internal and external affairs. b. Composite2 or more sovereign states joined together to constitute one interna tional person which may be:

331 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos i. Real Union2 or more states merged under a unified authority so that they form a single international person through which they act as one entity. The states retain their separate identities, but their respective international personaliti es are extinguished and blended in the new international person. ii. Federal Unioncombination of 2 or more states which, upon merger, ceased to be states, resulting in the creation of new state with full international personal ity to represent them in their external relations as well as a certain degree of power over their domestic affairs and their inhabitants. Authority over internal affairs: divided between federal authorities and the mem ber-states; Authority over external affairs: handled solely by federal authorities. B. DEPENDENTalthough theoretically a state, does not have full freedom in the di rection of its external affairs, such as a protectorate (which is established at the request of the weaker state for the protection by a strong powe r, e.g. Panama, Andorra, Monaco) or a suzerainty (which is the result of a conc ession from a state to a former colony that is allowed to be independent subject to the retention by the former sovereign of certain powers over the external a ffairs of the latter, e.g. Bulgaria and Rumania, both suzerainties of Sultan of Turkey by virtue of Treaty of Berlin of 1878) C. NEUTRALIZEDwhose independence and integrity are guaranteed by an international treaty on the condition that such state obligates itself never to take up arms

against other state (except in self-defense), or to enter into an international obligation as would indirectly involved it in war. e.g. Switzerland and Austri a

Who has the power to recognize a State or Government? The Executive Head has the power to recognize, as political act, a State or Government and the recognition is permanent and cannot be withdrawn. Fundamental rights of States in International Law: 1. Right to sovereignty and independence; 2. Right to property and jurisdiction;

332 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos 3. Right to existence and self-preservation/self-defenseSec. 4, Article I I of Phil. Constitution & Article 51, UN Charterrecognize the inherent right to individual o r collective self- defense if an armed attack occurs against such state; 4. Right to equality; and 5. Right to diplomatic intercourse. Fundamental Duties of States in International Law: 1. Non-intervention; 2. Observe rights of other states; 3. Comply with treaty stipulations and other obligations arising from membershi p in international organizations; 4. Maintain peace; and 5. Respect the international laws. INTERVENTION It is the dictatorial interference by one State in the internal affairs of anoth er State, or in dealings with other States, usually backed up by force or threat of force. The kind of interference must be dictatorial. A State may not interfe re unless it has force. Intervention is not allowed in International Law. However, it must be distinguished from mere intercession, such as the tender of advice or the filing of diplomatic protest, which is not prohibited. Instances of Justified Intervention: 1. Intervention as an act of individual or collective self-defense; 2. Intervention by treaty stipulation or by invitation; 3. Intervention by UN authorization; 4. Intervention on humanitarian grounds (which according to autho rities in international law, has now evolved into an international custom). DRAGO DOCTRINEit prohibits intervention for the purpose of collecting contractual debts. It was formulated by Argentinian Foreign Minister Luis Drago as a reacti on to what happened in Venezuela in 1902 where the ports of Venezuela were block aded by the combined naval fleets of Germany, Italy, and Great Britain (the supe

r powers of the time) to compel the Venezuelan government to pay its contractual debts.

State Sovereigntyis the right to exercise in a definite portion of the globe the functions of a State to the exclusion of any other State.

333 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos Sovereignty in relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclus ion of any other State, the functions of a State. (Judge Huber, the Sole Arbitra tor in the Island of Las Palmas Case) Widely accepted elements of Sovereign Equality of States Principle 1. States are juridically equal; 2. Each State shall enjoy the rights inherent in full sovereignty; 3. Each State has the duty to respect the personality of other States; 4. The territorial integrity and political independence of the State are inviol able; 5. Each State has the right freely to choose and develop its politic al, social, economical and cultural systems; and 6. Each State has the duty to comply fully and in good faith with its internati onal obligations and to live in peace with other States. RecognitionThe act by which the state acknowledges the existence of another state , a government or a belligerent community, and indicates its willingness to deal with the entity as such under international law.

Theories on Recognition: 1. Constitutive (Minority View)recognition is the act which constitutes the entity to an international person. Recognition is compulsory and legal; it m ay be compelled once the elements of a state are established. 2. Declarative (Majority View)recognition merely affirms an existing fact, like the possession by the State of the essential elements. It is discretionary and p olitical. Basic Rules on Recognition: It is a political act and mainly a matter of policy on the part of each State; i t is discretionary on the part of the recognizing authority; and it is exercised by the political (executive) department of the state. Thus, the legality and wi sdom of recognition is not subject to judicial review. Tobar or Wilson Doctrine(must show stable government and people support)the doctri

ne precludes recognition of government established by revolutionary means until the constitutional reorganization by the free election of representatives.

334 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos Estrada Doctrineit provides that if a state will deal with representatives of the government in actual control of another country for the protection of its citiz ens in the territory of the later state, this does not necessarily mean recognit ion of the said government. Stimson Doctrineno recognition of a government established through extern al aggression. Kinds of Recognition: 1. De Facto(of fact) extended by the recognizing state which believes that some of the requirements for recognition are absent. The recognition is generally pro visional and limited to certain juridical relations; it does not bring about ful l diplomatic intercourse and does not give title to assets of the state held/sit uated abroad. 2. De Jure(of Law) extended to a government fulfilling the requirements for reco gnition. When there is no specific indication, recognition is generally de jure. The recognition is relatively permanent; bring about full diplomatic intercours e and observance of diplomatic immunities; and confers title to assets abr oad. Effects of Recognition: 1. Diplomatic relations; 2. Right to sue in the courts of recognizing state; In the case of Banco Nacional de Cuba vs. Sabattino, 376 US 398, unfriendly rela tions or the lack of reciprocity was held immaterial. 3. Immunity from jurisdiction; 4. Entitlement to property within the recognizing state; and 5. Retroactive validation of the acts of the recognized sate/government. Conditions for recognition of a belligerent state: 1. Organized civil government having control and supervision over the armed struggle 2. Serious and widespread struggle 3. Occupation of a substantial portion of the national territory 4. Willingness on the part of the rebels to observe rules/customs of war Absence of any of the above conditions, there is no belligerency but only state o f insurgency, which is rarely recognized, because this will be intervention in t he domestic affairs of another state.

335 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B

ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos Effects of Recognition of Belligerency: 1. Responsibility for acts of rebels resulting in injury to nationals of the recognizing state shall be shifted to the rebel government; 2. The legitimate government recognizing the rebels shall observe the laws of war in conducting hostilities otherwise any party that will violate the laws of war shall be considered as war criminals; 3. Third states recognizing the belligerency shall maintain neutrality; and 4. Recognition is only provisional (for the duration of the armed struggle) and only for the purpose of hostilities. Jurisdiction of Statesit is the power, authority, sovereignty or legal control ex ercised by a state over land, persons, property, transactions, and events in its territory. 1. a. 2. a. As a conceptit is the capacity to: Legislate or to prescribe laws/rules b. Enforce laws/rules As powerit is exercised over: Persons b. Property c. Events

Jurisdiction over Territory i. Title to Territory Island of Palmas Case (Netherlands vs. USA, 2 RIAA 829) test of title in interna tional law is continuous and peaceful display of territorial sovereignty; forms of acquisition of title are: a. Occupation coupled with effectiveness b. Conquest c. Cession; and d. Accretion Title is not sufficient without the first element of display of State functions ii. Airspace (flight space) Paris Convention, October 13, 1919State with exclusive sovereignty Convention on International Civil Aviationsprohibits entry of state aircr aft without authorization by special agreement

336 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos Tokyo Convention of 1963for extradition purposes, a crime, may be considered as h aving been committed in the State of registry of the Aircraft; but jurisdiction by another Contracting State may be had if the offense: a. Has an effect on its territory; b. Has been committed by or against its national or a permanent resident therei n; c. Is against its national security;

d. Relates to a breach of its national rules on flight; e. Is the subject of an exercise of jurisdiction necessary to ensure the observ ance of an obligation of such state under a multilateral agreement iii. Internal and Territorial Waters Fisheries caseStraight Baseline allowed and delimitation of territorial waters Corfu Channel Caseinnocent passage in international straits allowed

Jurisdiction over Adjacent Maritime Seas i. Continental shelf North Sea Continental shelf Caseswhat confers title ipso jure to continental shel f is the fact that the submarine areas concerned may be deemed to be actually pa rt of the territory of the coastal state in the sense that, although covered wit h water, they are a prolongation or continuation of that territory. ii. Exclusive Economic Zone Fisheries Jurisdiction caseexclusive rights over fishery zone must take into acco unt interests of other States (See discussion under UNCLOS below) Jurisdiction over Persons and Economic Activity Theories: 1. Nationalitycivil law follows national wherever he/she may be; 2. Passive Personalitypunish aliens abroad who injures ones citizen; 3. Security Principlepunish aliens for acts against States security, independence and territorial integrity; 4. Universalitye.g. piracy, crimes against humanity, etc. 5. Objective Territorialityelements of crime occurred in 2 states

337 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Areas not subject to the Jurisdiction of Individual States 1. High Seas 2. Deep Seabed

3. Outer Spacethe region beyond the earths atmosphere Province of all mankindnot subject to national appropriation; no nuclear weapons in orbit; astronauts are envoys of mankind and State shall obliged to render assis tance to them in emergency landing; there is international responsibility for na tional activities in outer space; absolute liability for damage caused by space objects. Outer space, including the moon and other celestial bodies, shall be free for ex ploration and use by all states without discrimination of any kind, on the basis of equality and in accordance with international law. Spatial test96 up to 110 kms. Modes of Acquiring Territory (See page 7 of this review notes) Modes of Losing Territory 1. Dereliction 2. Cession 3. Erosion, or other natural causes 4. prescription NATIONALITY AND STATELESSNESS Multiple NationalityIt is the possession by an individual of more than one nation ality. It is acquired as a result of the concurrent application to him of the co nflicting municipal laws or two or more states claiming him as their national. Generally, a state has no jurisdiction over its nationals residing abroad except in nationality law theory, i.e., Article 15 of the Civil Code; Article 2 of the Revised Penal Code; taxation of citizens abroad.

338 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos Doctrine of Indelible Allegiancean individual may be compelled to retain his orig inal nationality notwithstanding that he has already renounced it under the laws of another state whose nationality he has acquired. Doctrine of Effective Nationalitya person having more than one nationality shall be treated as if he had only oneeither the nationality of the country in which he is habitually and principally resident or the nationality of the country with w

hich in the circumstances he appears to be in fact most closely connected. (Friv aldo vs. COMELEC, June 23, 1989) Statelessnesscondition or status of an individual who is born without any nationa lity or who loses his nationality without retaining or acquiring another. A stateless person is entitled to, among others, the right to religion and relig ious instruction, access to courts, elementary education, public relief and assistance, rationing of products in short supply and treatment of n o less favorable than that accorded aliens in general. He is to be treated more or less like the subjects of a foreign state. Any wrong suffered by a stateless person through the act or omission of a state would be damnum absque injuria for in theory, no state has been offended and no international delict committed. Doctrine of State Responsibility to AliensState has the primary obligation to aff ord protection to aliens. A state is responsible for injury inflicted upon an al ien if caused by an act or omission imputable to the state, in violation of inte rnational standard of justice. Indirect State Responsibilitywhere the offense is committed by inferior governmen t officials or by private individuals, the state will be held liable only if, by reason of its indifference in preventing or punishing it, it can be considered to have connived in effecting its commission. International Standard of Justice(Elements of due process under ordinary norms of official conduct) To constitute an international delinquency, the treatment of an alien should amount to an outrage, bad faith, willful neglect of duty, and in sufficiency of governmental action that every reasonable and impartial man would readily recognize its insufficiency.

339 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos The Philippines is not liable for death or injury to alien hostages of the abu s ayyaf, unless it is shown to have participated directly or was remiss or neglige nt in taking measures to prevent injury, investigating the case, punishing the g uilty, or to enable the victim or his heirs to pursue civil remedies. In case of injuries inflicted upon foreigner in the course of quelling a rebelli on, state responsibility will attach onlyifrebellionsucceedsandtherebelswilltake control ofthe state, but not when the legitimate government remains in power as the act of quelling a rebellion is a valid exercise of defense. State liability will attach only if it fails to observe the minimum international standard for t he protection of aliens.

Calvo doctrineprovision frequently inserted in contracts where nationals of anoth er state renounce any claim upon his national state for protection. Such waiver can only be made, legally, by aliens state. Right of the State to admit and expel aliens No state is under obligation to admit aliens State imposes conditions on the admission of aliens State can expel aliens from its territorydeportation/reconduction Alien must accept the institutions of the State as he finds them Aliens may be deprived of certain rights Local law may grant aliens certain rights, privileges based on a. Reciprocity b. Most-favored-nation treatment c. National treatment Privileges conferred may be revoked Deportationexpulsion of an alien considered undesirable by local state, usually b ut not necessarily, to his own state. Reconductionforcible conveying of aliens back to their home state withou t any formalities

ASYLUM in International Law The right of asylum is the competence of every State inferred from its territori al supremacy to allow a prosecuted alien to enter and to remain on its territory , under its protection, and thereby to grant asylum to him. 340 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos The right of asylum is not a right possessed by an alien to demand that a State protect him and grant him asylum. At present, it is just a privilege granted by a State to allow an alien escaping from the persecution of his country for polit ical reasons. Diplomatic asylumrefuge in diplomatic premises Political asylumrefuge in another state for political offenses, danger to life or no assurance of due process Who is a Refugee? A refugee is a person who is outside the country of his nationality, or if he ha s no nationality, the country of his former habitual residence, because he has o r had well- founded fear of persecution by reason of his race, religion, nationa lity or political opinion and is unable or, because of such fear, is unwilling t o avail himself of the protection of the government of the country of his nation

ality, or, if he has no nationality, to return to the country of his former habi tual residence. To be considered a refugee, the person: 1. Is outside the country of his nationality, or, in the case of stateless pers ons, outside the country of habitual residence; 2. Lacks national protection; and 3. Fears persecution by reason of his race, religion, nationality or political opinion. Because of the 2nd element, a refugee is considered a stateless person. Only a person who is granted asylum by another State can apply for refugee statu s; thus, the refugee treaties imply the principle of asylum. Non-Refoulement PrincipleArticle 33 of The Convention Relating to the Status of R efugees provides that no contracting State shall expel or return (refouler) a re fugee, in any manner whatsoever, to the frontiers of territories where his life or freedom would be threatened. This principle was declared to be a generally accepted principle by The Convention Relating to the Status of Stateless Persons. Most-Favored-Nation Clausea pledge by a contracting party to a treaty to grant to the other party treatment not less favorable than that which has been or may be granted 341 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos to the most favored among other countries. The clause has been commonly included i n treaties of commercial nature. Purpose: To grant to the contracting party treatment not less favorable than tha t which has been or may be granted to the most favored among other countries. The most favored nation clause is intended to establish the principle of eq uality of international treatment by providing that the citizens or sub jects of the contracting nations may enjoy the privileges accorded by either party to those of the most favored nation. (CIR vs. S. C. Johnson & Sons, Inc., 309 SCRA 87, June 25, 1999)

2 Types of Most-Favored-Nation Clause: 1. Conditional 2. Unconditional According to the clause in its unconditional form, any advantage of whatever kin d which has been or may in future be granted by either of the contracting partie

s to a third State shall simultaneously and unconditionally be extended to the o ther under the same or equivalent conditions as those under which it has been gr anted to the third State.

UNITED NATIONS The international organization which succeeded the League of Nations Organs of UN 1. General assemblyAssembly 2. Security Council 3. Economic & Social Council (ECOSOC) Council 4. Trusteeship Council 5. Secretariat 6. ICJ organs 2 Functions of International Court of Justice 1. To resolve contentious cases; 2. To render advisory opinions to the General Assembly, the Security Council, a nd other organs of the United Nations.

342 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos Legal disputes which the ICJ may resolve under the optional clause of its Statute: 1. The Interpretation of a treaty; 2. Any question of international law; 3. The existence of any fact which, if established, would constitute a breach o f an international obligation; 4. The nature and extent of the reparations to be made in case of breach of an international obligation. International Criminal Court (ICC) CJ) it is a criminal tribunal International Court of Justice (I

has criminal jurisdiction to prosecute individuals it prosecutes individuals for genocide, crimes against humanity, war crimes and the crimes of aggression it is independent of the United nations it is a civil tribunal does not have criminal jurisdiction over individuals it is a civil tribunal that deals primarily with disputes between States

it is a principal organ of the United Nations ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT The Rome Statute established the ICC which shall have the power to exercise its j urisdiction over persons for the most serious crimes of international concern x x x and shall be complementary to the national criminal jurisdictions. (Article I , Rome Statute) Its jurisdiction covers the following crimes: 1. 2. 3. 4. Genocide; Crimes against humanity; War crimes; and Crime of aggression. (Article 5, Rome Statute)

General Principles: 1. Nullum crimen sine lege (Ex post Facto law) 2. Nullum poena sine lege (void for vagueness) 3. Double Jeopardy 4. Non-retroactivity 343 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos 5. Principle of Superior Responsibilitya superior is held liable for failure to prevent subordinates from committing unlawful acts, in view of his command and c ontrol over them and liable as well for their crimes 6. Mens reamaterial elements of a crime must be committed with intent and knowle dge No trial in absentia No reservations Penalties: Imprisonmentmax of 30 years; no death penalty Principle of Complementaritythe ICC shall be complementary to national criminal j urisdictions of states. It gives primacy over the duty of every State to exercis e its criminal jurisdiction over those responsible for international crimes. The Statute was opened for signature by all States in Rome on July 17, 1988 and had remained open for signature until December 31, 2000 at the UN Headquarters i n New York. The Philippines signed the Statute on December 28, 2000 through Char ge d Affairs Enrique A. Manalo of the Philippine Mission to the UN. Its provision s, however, require that it be subject to ratification, acceptance or approval o f the signatory states. (Article 25, Rome Statute) Pimentel, Jr. vs. Office of the Executive Secretary, 462 SCRA 622, July 6, 2005 R atification of the Rome Statute of the International Criminal Courtthe SC held th

at the power to ratify does not belong to the Senate. In the book of Justice Isa gani Cruz, the usual steps in the treaty-making process are: 1. Negotiationmay be undertaken directly by the head of state but usually assign s this task to his authorized representatives. 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. 2. Signatureif and when the negotiators finally decide on the terms of the treat y, 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 fai th of the parties; but significantly, itdoesnotindicatethefinalconsent of the st ate in cases where ratification of the treaty is required. The document is sign ed usually in accordance with the alternat, i.e., each of the several negotiator s is allowed to sign first on the copy which he will bring home to his home state. 344 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos 3. Ratificationis the formal act by which a state confirms and accepts the provi sions 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 gi ve 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 what whic h negotiated them. 4. Exchange of the instruments of ratificationthis is the last step which usuall y signifies the effectivity of the treaty unless a different date has been agree d upon by the parties. When ratification is dispensed with and no effectivity cl ause is embodied in the treaty, the instrument is deemed effective upon its sign ature. It should be emphasized that under our Constitution, the power to ratify is vest ed in the President, subject to the concurrence of the Senate. The role of the S enate, however, is limited only to giving or withholding its consent, or concurr ence, to the ratification. Hence, it is within the authority of the President to refuse to submit a treaty to the Senate or, having secured its consent for rati fication, refuse to ratify it. Although the refusal of a state to ratify a treat y which has been signed in its behalf is a serious step that should not be taken lightly, such decision is within the competence of the President alone, which c annot be encroached by this Court via a writ of mandamus. This Court has no juri sdiction over actions seeking to enjoin the President in the performance of his official duties. The Court, therefore, cannot issue the writ of mandamus prayed for by the petitioners as it is beyond its jurisdiction to compel the executive branch of the government to transmit the signed text of the Rome Statute to the Senate.

GENOCIDE It is the deliberate destruction and annihilation of a racial, ethnic or religio us group.

(See Atty. Sandovals 2008 handouts in International Law, page 1-2)

INTERNATIONAL HUMAN RIGHTS LAW (See Atty. Sandovals 2008 handouts in International Law, page 2)

INTERNATIONAL HUMANITARIAN LAW

345 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos (See Atty. Sandovals 2008 handouts in International Law, page 4) Martens Clauseprovides that in cases not covered by this protocol or by any other international agreements, civilians and combatants remain under the protection a nd authority of the principles of international law derived from established cus toms, from the principles of humanity and from the dictates of public conscience (Article I, paragraph 2, Protocol additional to the Geneva Conventions of August 12, 1949). Hors de combat 1. The person is in the power of an adverse party to the conflict 2. He clearly expresses his intention to surrender 3. He is incapable of defending himself provided he abstains from any hostile a ct and does not attempt to escape

JURISDICTION It is the competence of a state under international law to prescribe and enforce norms of law, as well as adjudicate over persons, property, events and relation s within its territory. Components of Territory:

1. Terrestrial domain (Land) 2. Fluvial and Maritime domain 3. Aerial domain LAND TERRITORY (Terrestrial Domain) Modes of acquisition: (See page 7 of this not es) MARITIME TERRITORY (Fluvial and Maritime Domain) (See Discussion under the National Territory and UNCLOS on pages 9 and 370, resp ectively) AIR TERRITORY (Aerial Domain)this refer to the airspace above the land and waters of the State. Five (5) Freedoms for Scheduled International Services: 2. Freedom to fly across foreign territory without landing; 3. Freedom to land for non-traffic purposes; 4. Freedom to put down traffic originating in state of aircraft; 346 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos 5. Freedom to embark traffic destined for state of craft; and 6. Freedom to embark traffic destined for, or to put down traffic coming from, third state. Three (3) International Theories on Aerial Jurisdiction: 1. Free zone theoryThe atmosphere over the country is free and not subject to th e jurisdiction of the subjacent state, except for the protection of its national security and public order. If a crime is committed on board a foreign aircraft at the atmosphere of a country, the law of that country does not govern unless the crime affects the na tional security. 2. Relative theorythe subjacent state exercises jurisdiction over the atmosphere only to the extent that it can effectively exercise control thereof. If a crime was committed on an aircraft that is already beyond the control of the subjacent state, the law of the state will not govern anymore. But if the crime is committed in an aircraft within the atmosphere over a subjacent state that ex ercises control, then its law will govern. 3. Absolute theoryadopted by the Philippines The subjacent state has complete jurisdiction over the atmosphere above it subje ct only to the innocent passage by aircraft of a foreign country. If the crime is committed in an aircraft, no matter how high, as long as it can b e established that it is within the Philippine atmosphere, our law will govern.

Outer Spaceis the region beyond the earths atmosphere. OuterSpaceTreatyprovides for the exploration and use of outer space as the provinc e of mankind and provides accordingly that the exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the ben efit and in the interest of all countries, irrespective of their degree of econo mic or scientific development. Outer space is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means, and thus, it is provides tha t it shall be free for exploration and use by all states without discrimination o f any kind. The States parties to the Treaty are to consider astronauts or cosmon auts as envoys of mankind.

347 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos Leading principles: 1. TERRITORIALITYthe Philippines possesses absolute (but may not b e exclusive) jurisdiction over persons, property, relations, and events by reaso n of the fact that they are within or they take place in its territory, without regard to the nationality of the person responsible. (Article 14 of the Civil Co dePenal laws and those of public security and safety shall be obligatory upon all who live or sojourn in Philippine territory, subject to the principles of publi c international law and to treaty stipulations.) A State may exercise jurisdiction only within its territory. General rule: A state has criminal jurisdiction only over offenses committed within its territory. Exceptions: a. Continuing offenses; b. acts prejudicial to the national security or vital interest of the State; c. Universal crimes d. Offenses covered by special agreement 2. NATIONALITY PRINCIPLEthe Philippines exercises jurisdiction over persons by r eason of their connection to the Philippine state as its citizens. (Article 15 o f the Civil CodeLaws relating to family rights and duties, or to status, conditio n and legal capacity of persons are binding upon citizens of the Philippines, ev en though living abroad.) Vest jurisdiction in State of offender 3. PROTECTIVE PRINCIPLEthe Philippines takes jurisdiction over persons who commi tted acts outside its territorial jurisdiction but with consequences prejudicial to its interests or inimical to its national security. (Read Article 2 of the R evised Penal Code)

4. UNIVERSALITY PRINCIPLEvest jurisdiction in state which has custody of offender of universal crimes (piracy, genocide) A state has jurisdiction over offenses considered as universal crimes regardless of where committed and who committed them. 5. PASSIVE PERSONALITY PRINCIPLEvest jurisdiction in state of offended party;

348 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos A State has jurisdiction over crimes against its own nationals even if committed outside the territory. Exemption from Jurisdiction: 1. Doctrine of State Immunity 2. Act of State Doctrine 3. Diplomatic Immunity 4. Immunity of the UN, its Organs, Specialized Agencies, Other Interna tional Organizations, and its Officers 5. Foreign merchant vessels exercising the right of innocent passage or arrival under stress 6. Foreign armies passing through or stationed in the territory with the permis sion of the State 7. Warships and other public vessels of another State operated for non-commerci al purposes

SOVEREIGN IMMUNITY

1. Heads of States and the state itself Basis: equality and independence of states Act of State Doctrine a. Broad senseit is an exercise of sovereign power, which cannot be ch allenged, controlled or interfered with by the court of law. It refers to the po litical acts of a State which are exercised as exclusive prerogatives by the pol itical departments of the government and not subject to judicial review and for the consequences of which, even when affecting private interests, they will not hold legally responsible those who command or performed them. b. Limited senseit refers to the acts taken by the State concerning as affecting aliens, like the inherent right of every sovereign state to exclude resident al iens from the territory when their continued presence is no longer desirable fro m the standpoint of its domestic interest and tranquility.

Doctrine of State Immunityas a consequence independence, territorial supremacy an d equality, a state enjoys immunity from the exercise of jurisdiction 349 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos (legislative, executive or judicial) by another state, unless it has given its c onsent, waived its immunity, or voluntarily submitted to the jurisdiction of the court concerned. (Read Also Discussions under State Immunity from Suit) 2. Diplomatic and Consular Immunity Remedy of Individual: a. Sue in home state of diplomat b. Waiver by state of nationality of diplomat c. Declare diplomat persona non grata Diplomatic immunity ceases to be enjoyed at the moment the diplomat leaves the c ountry, or on expiry of a reasonable period in which to do so. (Regina vs. Palac ios 7 DLR 112) Exterritorialityexception of persons and property from local jurisdiction on basi s of international customs Extraterritorialityapplies only to persons and is based on treaty or co nvention; discredited because of rise of nationalism and sovereign equality of States RIGHT OF LEGATION A.k.a. Right of Diplomatic Intercourse Right of the State to send and receive diplomatic missions, which enables Sta tes to carry on friendly intercourse Not a natural or inherent right, but exists only by common consent No legal liability incurred by the State for refusing to send or receive dipl omatic representatives Agents of Diplomatic Intercourse: 1. Head of Stateenjoys the right to special protection for his physical safety a nd the preservation of his honor and reputation Principle of Exterritorialityhis quarters, archives, property and means of transp ortation are inviolate. He is immune from criminal and civil jurisdiction, excep t when he himself is the plaintiff, and is not subject to tax or exchange of cur rency restrictions. 2. Foreign Officeheaded by a Secretary or Minister. The latter has the power to make binding declarations on behalf of his government. 3. Members of diplomatic service 350 2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos 4. Special diplomatic agents appointed by the head of the State 5. Envoys ceremonial

Establishment of Resident Missions States carry on diplomatic intercourse through permanent missions established in the capitals of other States. Composition of Mission: 1. Head of Mission a. Ambassador or Nunciosaccredited to Heads of state, and other heads of mission of equivalent rank; b. Envoys, ministers and internunciosaccredited Heads of States; c. Charges d Affairesaccredited to Ministers of Foreign Affairs 2. Diplomatic Staffthose engaged in diplomatic activities and are accord ed diplomatic rank 3. Administrative and Technical Staffthose employed in the administrative and te chnical service of the mission 4. Service Staffthose engaged in the domestic service of the mission DIPLOMATIC CORPS A body consisting of all diplomatic envoys accredited to the same local or recei ving state. The doyen or the head of this body is the papal nuncio, if there is one, or the oldest ambassador, or in the absence, the oldest minister plenipoten tiary. Agreationthe process in appointment of diplomatic envoy where states resort to an informal inquiry as to the acceptability of a particular envoy, to which the re ceiving state responds with an informal conformity Letre de Creance (Letter of Credence)states the name, rank and general character of the mission, and a request for favorable reception and full credence DIPLOMATIC IMMUNITIES AND PRIVILEGES 1. Personal inviolabilityhe shall not be liable to any form of arrest or detenti on. 2. Inviolability of premises and archives 3. Right of official communication 4. Immunity from local jurisdiction 5. Exemption from taxes and custom duties 351 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos 6. Other privilegesincludes freedom of movement and travel in the territory of r

eceiving state; exemption from all personal services and military obligations; t he use of the flag and emblem of the sending state on the diplomatic premises an d the residence and means of transport of the head of mission. Duration: The privileges are enjoyed by the envoy from the moment he enters the territory of the receiving state, and shall cease the moment he leaves the count ry, or on expiry; with respect to official actsimmunity shall continue in definitely. These privileges are available even in transit, when travelling thr ough a 3rd State on the way to or from the receiving state. Waiver of Immunities1. Diplomatic immunities can be waived, but the waiver cannot be made by the in dividual concerned since such immunities are not personal to him. 2. Waiver may be made only by the government of the sending state if it concern s the immunities of the head of mission. 3. In other cases, the waiver may be made either by the government or by the ch ief of mission. 4. Waiver of this privilege, however, does not include waiver of the immunity i n respect of the execution of judgment; a separate waiver of the latter is necessa ry. Termination of diplomatic mission: 1. Death 2. Resignation 3. Removal 4. Abolition of office 5. Recall of the sending State 6. Dismissal by the receiving state 7. War 8. Extinction of the State CONSULAR RELATIONS Consul A state agent residing abroad for various purposes but mainly in the inter est of commerce and navigation. Kinds: 1. Consules missiprofessional and career consuls, nationals of the appointing st ate 2. Consul electiselected by the appointing state either from its own citizens or from among nationals abroad 352 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos Rank: 1. Consul-generalheads several consular districts, or one exceptionally large con sular district 2. Consultakes charge of small district, town or port 3. Vice-consulassist the consul 4. Consular agentusually entrusted with the performance of certain functions by the consul.

Two (2) Documents Necessary for the Assumption of Consular Functions 1. Letters Patent (letter de provision)letter of appointment or commission which is transmitted by the sending state to the Secretary of Foreign Affairs of the country where the consul is to serve 2. Exequaturauthorization given to the consul by the sovereign of the receiving state, allowing him to exercise his function within the territory Immunities and Privileges: 1. Inviolability of their correspondence, archives and other documents 2. Freedom of movement and travel 3. Immunity from jurisdiction for acts performed in official capacity except infractions 4. Exemption from certain taxes and customs duties, military or jury service 5. Right to display national flag and emblem in the consulate Immunities and privileges are also available to the members of the consular post , their families and their private staff. Waiver of immunitiesmay be made by the appointing state Crimes against diplomatic agents are International, not political, in nature Termination of 1. Usual mode 2. Withdrawal 3. Extinction 4. War consular mission: of terminating official relationship of the exequatur of the State

Severance of consular relations does not necessarily terminate diplomatic relati ons.

353 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

EXTRADITION

It is the surrender of an individual accused or convicted of a crime by a State within whose territory he is found and his delivery to the State where he allege dly committed crime or was convicted of a crime. Sec. 2(a), PD 1069extradition is the removal of an accused from the Ph ilippines with the object of placing him at the disposal of foreign authorities

to enable the requesting state or government to hold him in connection with any criminal investigation directed against him or the execution of a penalty impose d on him under the penal or criminal law of the requesting state or government. Without a treaty, extradition is left to diplomatic negotiation between the stat es involved. In such case, extradition relies on the consent of the requested st ate that may be given out of comity and good relations. In international law, extradition is a form of jurisdictional assistance. Secretary of Justice vs. Lantion, G.R. No. 139465, October 17, 2000, Mark Jimene z is without any right to notice and hearing during the evaluation stage of an e xtradition process by the DFA under RP-US Extradition Treaty. Extradition court may adjudge a person as extraditable but the President has the final say. Extradition is not criminal in natureit is sui generis; thus, Bill of Rights provisions on aspects of due process in criminal proceedings are not app licable) Secretary of Justice vs. Muoz, G.R. No. 140520, December 18, 2000, provisional ar rest of respondent was valid noting that the requirements of the Agre ement on documentation and the finding of probable cause have been complied with.

354 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Right to Bail In Extradition Case Government of USA vs. Purganan, G.R. 148571, September 24, 2002, right to bail i n extradition is not available; ultimate purpose of extradition proceedings in c ourt is to determine whether the extradition request complies with the extraditi on treaty. But in exceptional cases, bail may issue provided: a. Accused is not a flight risk; and b. Compelling circumstances warrant. The right of prospective extraditee to apply for bail in this jurisdiction must be viewed in light of the various treaty obligations of the Philippines concerni ng respect for the promotion and protection of human rights. (Government of HK S

pecial Administrative Region vs. Hon. Olalia, Jr., G.R. No. 153675, April 19, 20 07) (See Atty. Sandovals 2008 handouts in International Law, page 11)

355 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos United Nations Convention on the Law of the Sea (UNCLOS)

The Philippines is an archipelagic State under the UNCLOS. It is made up wholly of one or more archipelagos. Archipelagounder the UNCLOS, it is a group of islands, interconnecting waters and other natural features which are so closely inter-related that such islands, wa ters and natural features form an intrinsic geographical, economic and political

entity, or which historically have been regarded as such.

Internal or national waters-- bodies of water within the land mass, among them a re rivers, bays and gulfs, straits, and canals.

Jurisdiction: The State exercises jurisdiction over everything found within its internal or national waters. In the case of foreign merchant vessels docked in a local port or bay, the coastal state exercises jurisdiction in civil matters, b ut criminal jurisdiction is determined according to the: a. English rulethe coastal State shall have jurisdiction over all offenses commi tted on board the vessel except those which do not compromise the peace of the p ort (the Philippines adheres to this rule); b. French ruleflag state shall have jurisdiction over all offenses committed on board a vessel except those which compromise the peace of the port.

Archipelagic watersare the waters enclosed by the selines, regardless of their depth or distance from the coast.

archipelagic

ba

Jurisdiction: same rule as in internal waters, save for innocent passage of merc hant vessels through archipelagic sea lanes

356 2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, B ernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos The internal waters of the Philippines are now subject to right of i nnocent passage as well as to sea lanes for all foreign ships under the right of archipelagic sea lanes passage. The airspace above the