Political Law

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

POLITICAL 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

Statute

legislation direct from the people;

legislation from the people’s representative;

states general principles;

provides the details of the subject matter of which it treats;

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Scope/Divisions of Political Law: 1. Constitutional Law—the study of the maintenance of the proper balance between authority as represented by the three inherent powers of the state and liberty as guaranteed by the Bill of Rights. 2. Administrative Law-- That branch of public law which fixes the organization, 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

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That branch of public law which deals with the organization and operations of the governmental organs of the State and defines the relations of the State with the inhabitants of its territory.

intended not merely to meet existing intended primarily to meet existing conditions conditions; only; it is the fundamental law of the State 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

It is the basic and paramount law to which all other laws must conform and to which 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 Constitution. The Constitution must ever remain supreme. All must bow to the mandate of this law. Right or wrong, the Constitution must be upheld as long as the sovereign people have not changed it. Classification: 1. Written or unwritten Written Unwritten -one whose precepts are embodied in one -consists of rules which have not been document or set of documents 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

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That written instrument enacted by direct action of the people by which the fundamental powers of the government are established, limited and defined, and by which those powers are distributed among the several departments for their safe and useful exercise for the benefit of the body politic.

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Constitution—it 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.

2. Enacted (conventional) or Evolved (Cumulative) Enacted (conventional) Evolved (Cumulative) -formally struck off at a definite time and -the result of political evolution, not place following a conscious or deliberate inaugurated at any specific time but effort taken by a constituent body or ruler changing by accretion rather than by any systematic method 3. Rigid or Flexible Rigid

Flexible 2

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

-one that can be amended only by a formal -one that can be changed by ordinary and usually difficult process legislation

Interpretation: 1. Verba Legis—whenever possible, the words used in the Constitution must be given their ordinary meaning except where technical terms are employed. 2. When there is Ambiguity—ratio legis et anima--A doubtful provision shall be

examined in the light of the history of the times and the conditions and circumstances under which the Constitution was framed. (Civil Liberties Union vs. Executive Secretary, 194 SCRA 317)

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The Philippine Constitution is written, conventional and rigid. It is embodied in one document and can be amended only by a formal and usually difficult process.

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 available—construe the Constitution from what “appears upon its face”. The proper interpretation, 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 provision—one which is complete in itself and becomes operative without 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 protected.

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3. Ut magis valeat quam pereat—the Constitution has to be interpreted as a

Essential Qualities of the Written Constitution: 1. Broad; 2. Brief; and 3. Definite.

Essential parts of a good written Constitution:

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

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 VIEW—Courts 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 declaration 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 shown by the presence of a separability clause in the law—INTENT OF THE LEGISLATIVE; and b. The valid portion can stand independently as law—INDEPENDENCE OF THE PROVISIONS.

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citizens and imposes limitations on the powers of the government as a means of securing the enjoyment of those rights. e.g. Bill of Rights b. Constitution of Government—outlines the organization of the government, enumerates its powers, lays down certain rules relative to its administration and defines the electorate. e.g. Legislative, Executive and Judicial Departments, Constitutional Commissions c. Constitution of Sovereignty—the provisions pointing out the mode or procedure in accordance with which formal changes in the fundamental law may be brought about. e.g. Art. XVII-Amendments or Revisions

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a. Constitution of Liberty—sets forth the fundamental civil and political rights of the

PREAMBLE 4

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

The Preamble is not a source of power or right for any department of government. It sets down the origin, scope, and purpose of the Constitution. It bears witness to the fact that the Constitution is the manifestation of the sovereign will of the Filipino people. The identification of the Filipino people as the author of the constitution calls 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 approval 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 aspirations of the framers; and serves as an aid in the construction of the Constitution.

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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 GOOD, CONSERVE AND DEVELOP OUR PATRIMONY, AND SECURE TO OURSELVES AND OUR POSTERITY THE BLESSINGS OF INDEPENDENCE AND DEMOCRACY UNDER THE RULE OF LAW AND A REGIME OF TRUTH, JUSTICE, FREEDOM, LOVE, EQUALITY, AND PEACE, DO ORDAIN AND PROMULGATE THIS CONSTITUTION.

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Ma. Luisa Angeles Ramos

ARTICLE I NATIONAL TERRITORY 5

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



Do you consider the Spratlys Group of Islands as part of Philippine Archipelago? Spratlys Group of Islands is not part of the Philippine Archipelago because 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. It is not part of the Philippine Archipelago. Historically, when we talk about Philippine Archipelago, we refer to those islands and waters that were ceded by the Spain to the United States by virtue of Treaty of Paris in 1898. And that did not include the Spratlys Group of Islands yet. Under the treaty, the islands that were ceded by Spain were identified—the main islands—Luzon, Visayas and Mindanao. Clearly, it did not include the Spratlys Group of Islands.

Spratlys Group of Islands was only discovered sometime in the 1950’s by a Filipino, Tomas Cloma. The latter waived his rights over the islands in favor of the Philippine Government. In effect, the government stepped into the shoes of the discoverer. 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 immediately occupied by Philippine troops. He then issued PD 1596, constituting the Spratlys Group of Islands as a regular municipality claiming it the Municipality of Kalayaan placing it under the Province of Palawan. And then he had the elections immediately held in the islands so from that time on until now, we continue to hold elections there. The Philippine exercises not only jurisdiction 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, indispensable need,

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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 jurisdiction.

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The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarines areas. The waters around, between and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines.”

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

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 Occupation—which are terra nullius (land belonging to no one) Doctrine of Effective Occupation—discovery 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 US ceding Louisiana to the latter and treaty between Russia and US ceding Alaska to the latter; 3. Prescription—which is a concept under the Civil Code. Territory may also be acquired through continuous and uninterrupted possession over a long period 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 connection, 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 the territorial integrity or political independence of any state; and 5. Accretion—another concept in the Civil Code. It is the increase in the land area of the State, either through natural means, or artificially, through human labor.

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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 Philippines has sovereignty or jurisdiction, x x x.” The Spratlys Group of islands falls under the second phrase “and all other territories over which the Philippines has sovereignty or jurisdiction”. It is part of our national territory because Philippines exercise sovereignty (through election of public officials) over Spratlys Group of Islands.

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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.

Philippine Archipelago:   1. Treaty of Paris, December 10, 1898—Cession of the Philippine Islands by Spain to the United States; 2. Treaty between Spain and US at Washington, November 7, 1900—inclusion of Cagayan, Sulu and Sibuto; 7

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

“xxx The waters around, between and connecting the islands of the archipelago, regardless 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 Doctrine simply because we are an archipelago consisting of 7,107 islands. It is essential for our national survival that we adhere to the archipelago principle. Archipelago Doctrine—merely 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 waters, islands is considered as one integrated whole. An archipelago is defined as group of islands, interconnecting waters and other natural features which are so closely interrelated that such islands, waters and natural features form an intrinsic 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 foreign vessels may pas through an archipelago.

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Other territories over which the Philippines has sovereignty or jurisdiction: 1. Batanes—(1935 Constitution); 2. Those contemplated under Article I, 1973 Constitution—belonging to the Philippines by historic right or legal title; 3. PD 1596, June 11, 1978-- constituting the Spratly’s Group of Islands as a regular municipality claiming it the Municipality of Kalayaan, placing it under the Province of Palawan.

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3. Treaty between US and GB, January 2, 1930—inclusion of Turtle and Mangsee Islands.

2 Kinds of Archipelago:

1. Coastal

Archipelago—situated close to a mainland and may be considered a part thereof.

2. Mid-Ocean

Archipelago—situated 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, Bernas, 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:

among them are: i. Rivers—which may be: 1. National 2. Boundary—divides the territories of States 3. International—flows thru various States a. Thalweg Doctrine—for boundary rivers, in the absence of an agreement between the riparian states, the boundary line is laid on the middle of the main navigable channel. b. Middle of the Bridge Doctrine—where there is a bridge over a boundary river, the boundary line is the middle or center of the bridge. ii. Bays and gulfs—a 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 juridical bay. The area must be as large as, or larger than, a semi-circle whose diameter 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 internal because of the existence of a historic title.

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a. Internal or national waters—bodies of water within the land mass,

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I. Terrestrial—land mass on which the inhabitants live;   II. Fluvial—maritime; 

iii. Straits—narrow passageways connecting 2 bodies of water. If the

distance between the 2 opposite coast is not more than 6 miles, they are considered internal waters.  In international law, when a strait within a country has a width of more than six (6) miles, the center lane in excess of the three (3) miles on both sides is considered international waters.

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

iv. Canals—the most famous is the Suez Canal, which is neutralized,

and the Panama Canal, which is open to everyone in times of war or peace. b. Archipelagic waters—are the waters enclosed by the archipelagic

Straight Archipelagic Baseline—to determine the archipelagic waters, the state shall draw straight baselines connecting the outermost points of the outermost islands and drying reefs, provided that the ratio of the area of the water to 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 total number of baselines enclosing any archipelago may exceed that length, up to a maximum 125 miles. The baselines drawn should not depart, to any appreciable extent, from the general configuration of the archipelago. All the waters within the baselines shall then be considered internal waters. The breadth of the 12-mile territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf shall then be measured from the archipelagic baselines. Vessels may be allowed innocent passage within the archipelagic waters, but this right may be suspended, after publication, in the interest of international security. The coastal state may also designate archipelagic sea lanes for continuous, unobstructed transit of vessels.

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Archipelagic State—a state made up wholly of one or two archipelagos. It may include other islands.

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baselines, regardless of their depth or distance from the coast.

c. Territorial Sea—the belt of the sea located between the coast and the

internal 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.

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

sea; this 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 its territory. e. Exclusive Economic Zone—shall not extend beyond 200 nautical miles

from the archipelagic baselines. f.

Continental shelf—it is the seabed and subsoil of the submarine areas extending 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.

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d. Contiguous Zone—extends up to 12 nautical miles from the territorial

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Baseline—is a line from which the breadth of the territorial sea, the contiguous zone and the exclusive economic zone is measured in order to determine the maritime boundary of the coastal state. Types of baseline: i. Normal Baseline Method ii. Straight Baseline method

The continental shelf does not form part of the Philippine territory. The Philippines has the sovereign rights over the continental shelf for the purpose of exploring it and exploiting its natural resources. g. High Seas—treated 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 beyond the jurisdiction and sovereign rights of States. Freedom of navigation—refers 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

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(See also discussion on UNCLOS)

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

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Ma. Luisa Angeles Ramos

III.Aerial—this 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

DECLARATION OF PRINCIPLES AND STATE POLICIES Sec. 1, Article II The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them. (Relate this to Article XI)

Republicanism What is a republican form of government? It is a government of the people, by the people, and for the people, a representative government wherein the powers and duties of government are exercised 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 representatives; 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. STATE—a community of persons, more or less numerous, permanently occupying a definite portion of territory, independent of external control, and possessing a government to which a great body of inhabitants render habitual obedience. (CIR vs. Campos Rueda, 42 SCRA 23)

State -is a legal or juristic concept

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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.

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1. Essential features: Representation and Renovation.

Nation -is an ethnic or racial concept

State Government -possesses a government to which a great -merely an instrumentality of the State 14

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

body of inhabitants obedience

render

habitual through which the will of the State is implemented and realized.

Elements of State:

1. People—the

inhabitants of the State; the # of which is capable for selfsufficiency and self-defense; of both sexes for perpetuity. a. Inhabitants; b. Citizens; c. Electors. fixed portion of the surface of the earth inhabited by the people of

the State.

3. Government—the agency or instrumentality through which the will of the State is formulated, expressed and realized.  Government of the Philippines—refers 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 through which political authority is made effective in the Philippines, whether pertaining to the autonomous regions, the provincial, city, municipal or barangay subdivisions or other forms of local government. De Jure vs. De Facto De Jure De Facto Has a rightful title but no power or Actually exercises the power or control control, either because the same has but without legal title. been withdrawn from it or because it a. De facto proper—government has not yet actually entered into the that gets possession and control exercise thereof. of, or usurps, by force or by the voice of the majority, the rightful legal government and maintains itself against the will of the latter; b. Government of Paramount

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2. Territory—a

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Republican state—one constructed on the principle that the supreme power resides in the body of the people. Its purpose therefore is to guarantee against two (2) extremes: 1. On the one hand, monarchy and oligarchy; 2. On the other, pure democracy.

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

Presidential vs. Parliamentary Presidential There is separation of legislative and executive powers. The first is lodged in the President and the second is vested in Congress.

It embodies interdependence separation and coordination.

Parliamentary 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.

by It embodies integration.

interdependence

by

Unitary vs. Federal Government Functions of the government: a. Constituent—compulsory because constitutive of the society; b. Ministrant—undertaken to advance the general interest of the society; merely optional.

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Forces—established and maintained by the military forces who invade and occupy a territory of the enemy in the course of war; c. Independent Government— established by the inhabitants of the country who rise in insurrection against the parent State.

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Ma. Luisa Angeles Ramos

Doctrine of Parens Patriae—the government as guardian of the rights of the people may initiate legal actions for and in behalf of particular individual. (Government of the Philippine Islands vs. Monte de Piedad, 35 SCRA 738; Cabañas vs. Pilapil, 58 SCRA 94)

4. Sovereignty—the supreme and uncontrollable power inherent in a State by which that State is governed.

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

“Government of Laws and Not of Men.”—sovereignty of the people also includes the concept that government officials have only the authority given them by law and defined by law, and such authority continues only with the consent of the people. Kinds of Sovereignty:  a. Legal—the power to issue final commands; b. Political—the sum total of all the influences which lie behind the law; c. Internal—the supreme power over everything within its territory; d. External—also known as independence—freedom from external control. Characteristics: a. Permanence b. Exclusiveness c. Comprehensiveness d. Absoluteness e. Indivisibility f. Inalienability g. Imprescriptibility

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While sovereignty has traditionally been deemed absolute and all-encompassing on the domestic level, it is however subject to restrictions and limitations voluntarily 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 Constitution adopts the generally accepted principles of international law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity, with all nations. By the doctrine of incorporation, the country is bound by generally accepted principles of international law, which are considered to be automatically part of our own laws.

¥say

It is the right to exercise the functions of a State to the exclusion of any other State.

Sovereignty, often referred to as Imperium—is the State’s authority to govern; it includes passing laws governing a territory, maintaining peace and order 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Effect of Belligerent Occupation—there is no change in sovereignty. However, political laws, except those of treason, are suspended; municipal laws remain in force unless changed by the belligerent occupant. Principle of Jus Postliminium—at the end of the occupation, when the occupant is ousted from the territory, the political laws which have been suspended shall automatically become effective again. (Peralta vs. Director of Prisons, No. L049, November 12, 1945) Effect of Change of Sovereignty—political laws of the former sovereign are abrogated unless they are expressly reenacted by the affirmative act of the new sovereign. Municipal laws remain in force. (Macariola vs. Asuncion, Adm. Case No. 133-J, May 31, 1982) Effect of Revolutionary Government—it is bound by no constitution. However, it did not repudiate the Covenant or Declaration in the same way it repudiated the Constitution. As the de jure government, the revolutionary government could not escape responsibility for the State’s good faith compliance with its treaty obligations under international law. During the interregnum when no constitution or Bill of Rights existed, directives and orders issued by government officers did not exceed the authority granted them by the revolutionary government. The directives or orders should not have also violated the Covenant or the Declaration. (Republic vs. Sandiganbayan, G.R. No. 104768, July 21, 2003)

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It necessarily includes the power to alienate what is owned. It was the foundation for the early Spanish decrees embracing the feudal theory of jura regalia that all lands were held from the Crown.

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Dominium—is 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; Separate Opinion of Justice Kapunan in Cruz vs. Secretary of DENR, G.R. No. 135385, December 2000)

Jurisdiction—is the manifestation of sovereignty. a. Territorial—power of the State over persons and things within its territory subject to its control and protection. 18

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

b. Personal—power of the State over its nationals, which may be exercised by

Three (3) parts: 1. Renunciation of war—the power to wage a defensive war is of the very essence of sovereignty; 2. Adoption of the principles of international law; 3. Adherence to a policy of peace, equality, justice, freedom, cooperation & amity. 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 policy”—the guiding principle of Philippine foreign policy is the national interest. However, this is tempered with concern for “equality, 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 declare the existence of a state of war. Doctrine of Incorporation—the doctrine where the generally accepted principles of international law are made part of the law of the land either by express provision of the Constitution or by means of judicial declaration or fiat. The doctrine is applied whenever municipal tribunals or local courts are confronted 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 a State.

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Sec. 2, Article II (Incorporation Clause) The Philippine renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.

¥say

the state even if the individual is outside the territory of the State. c. Extraterritorial—power of the State over persons, things or acts beyond its territorial limits by reason of their effects to its territory.

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 shall prevail. However, the doctrine dictates that rules of international law are given equal standing 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

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 United 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. VII—installation of the President as the highest civilian authority, as the commander-in-chief of the AFP—external manifestation that civilian authority is supreme over the military. Sec. 5(1), Art. XVI—members 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”.

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Philip Morris, Inc. vs. CA, the fact that the international law has been made part of the law of the land does not by any means imply the primacy of international law over national law in the municipal sphere.

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Lex posterior derogate priori—in States where the constitution is the highest law of the land, both statutes and treaties may be invalidated if they are in conflict with the Constitution. (Secretary of Justice vs. Lantion, G.R. No. 139465, January 18, 2000)

Sec. 6, Article XVI—The State shall establish and maintain one police force, which shall be national in scope and civilian in character, to be administered and controlled 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

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Marines does not constitute a breach of the civilian supremacy clause. The calling 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 evident in the provisions of the Letter of Instruction (LOI) itself, which sufficiently provides the metes and bounds of the Marines’ authority. It is noteworthy that the local police forces are the ones charge of the visibility patrols at all times, 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 the LOI, the police forces are tasked to brief or orient the soldiers on police patrol procedures. It is their responsibility to direct and manage the deployment of the marines. It is, likewise, their duty to provide the necessary equipment to the Marines and render logistic support to these soldiers. In view of the foregoing, it cannot be properly argued that military authority is supreme over civilian authority. It is worth mentioning that military assistance to civilian authorities in various forms persists in Philippine jurisdiction. The Philippine experience reveals that it is not averse to requesting the assistance of the military in the implementation and execution of certain traditionally “civil” functions. x x x Some of the multifarious activities wherein military aid has been rendered, exemplifying the activities that bring both the civilian and the military together in a relationship 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 systematic, unbroken, executive practice, long pursued to the knowledge of Congress and, yet, never before questioned. What we have here is a mutual support and cooperation between the military and civilian authorities, not derogation of civilian supremacy.

¥say

Ma. Luisa Angeles Ramos

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, Bernas, 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 render personal military or civil service.

In People vs. Lagman, 66 Phil. 13, the accused in this case, prosecuted for failure to register for military service under the National Defense Act, assailed the validity of the Act. The Supreme Court upheld the law on the basis of the compulsory military and civil service provision of then 1935 Constitution. It said that: “x x x. The duty of the Government to defend the State cannot be performed except through an army. To leave the organization of an army to the will of the citizens would be to make this duty to the Government excusable should there be no sufficient men who volunteer to enlist therein…x x x the right of the Government to require compulsory military service is a consequence of its duty to defend the State and is reciprocal with its duty to defend the life, liberty, and property of the citizen. x x x.”

Sec. 5, Article II The maintenance of peace and order, the protection of life, liberty, and property, and the promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy. Right to bear arms: 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 create a vested right. Even if it were a property right, it cannot be considered absolute 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 connection and in harmony with these constitutional duties. (Chavez vs. Romulo, G.R. No. 157036, June 9, 2004)

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Posse Commitatus—it is the power of the state to require all able-bodied citizens to perform civic duty to maintain peace and order.

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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.

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, Bernas, 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 interfering with purely ecclesiastical affairs. But it does not mean that there is total or absolute separation. The better rule is symbiotic relations between the church and State.

3. Sec. 2 (5), Art. IX-C—religious sect cannot be registered as political party 4. Sec. 5 (2), Art. VI—no sectoral representative from the religious sector 5. Sec. 28 (3), Art. VI—Charitable institutions, churches and parsonages or convents appurtenant thereto, mosques, non-profit cemeteries, and all lands, buildings, and improvements, actually, directly, and exclusively used for religious, charitable, or educational purposes shall be exempt from taxation. 6. Sec. 29 (2), Art. VI—No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or of any priest, preacher, minister, or other religious teacher, or dignitary as such, except when such priest, preacher, minister, or dignitary is assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium. 7. Sec. 3 (3), Art. XIV—At the option expressed in writing by the parents or guardians, religion shall be allowed to be taught to their children or wards in public elementary and high schools within the regular class hours by instructors designated or approved by the religious authorities of the religion to which the children or wards belong, without additional cost to the Government. 8. Sec. 4 (2), Art. XIV—Filipino ownership requirement for educational institutions,

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 between the church and its members and relates to matter of faith, religious doctrines, worship and governance of the congregation. Examples of these affairs in which the State cannot meddle are proceedings for excommunication, ordination of religious ministers, administration of sacraments, and other activities to which is attached religious significance. In this case, what is involved is the relationship 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 doctrine of the church.

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prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil and political rights.

¥say

Constitutional provisions evidencing the Separation of Church and State: 1. Sec. 6, Art. II 2. Sec. 5, Art. III—No law shall be made respecting an establishment of religion, or

STATE POLICIES 23

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

There is a marked antipathy in the Constitution towards foreign military presence in the country, or of foreign influence in general. (Lim vs. Executive Secretary, 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 policy of freedom from nuclear weapons in its territory. Clearly, the ban is on nuclear arms—that is, the use and stockpiling of nuclear weapons, devices, and parts thereof. And this includes not only possessing, controlling 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 nuclear arms. Nuclear weapons, if stored in our territory, may invite threats of foreign invasion and there is a danger to the life and limbs of the people because of the threat 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 prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living, and an improved quality of life for all.

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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.

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Sec. 7, Article II (Independent Foreign Policy) The State shall pursue an independent foreign policy. In its relations with other states the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to self-determination.

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, Bernas, 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. The Constitution covers all phases of national development but with more emphasis 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 for 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 strengthen 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 and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the government. (Read Article XV)

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Sections 1&2 of Article XIII: Section 1—The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good. To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and its increments.

¥say

(Social Justice) The State shall promote social justice in all phases of national development. (Read Sections 1 and 2 of Article XIII)

The family here is to be understood as a stable heterosexual relationship whether formalized by civilly recognized marriage or not. Calling the family “a basic social institution” is an assertion that the family is anterior to the State and is not a creature of the State. The categorization of the family as “autonomous” is meant to 25

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

Natural Right and Duty of Parents Parents are entitled to the support of laws designed to aid them in the discharge of their responsibility. The provision also highlights the inherent duty of the State to act as parens patriae and to protect the right of persons and individuals who, because of age or inherent incapacity, are in an unfavorable position vis-à-vis other parties. People vs. Larin, G.R. No. 128777, October 7, 1998, RA 7610, which penalizes child prostitution and other sexual abuses, was enacted in consonance with the policy 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 promote and protect their physical, moral, spiritual, intellectual, and social wellbeing. It shall inculcate in the youth patriotism and nationalism, and encourage their involvement in public and civic affairs.

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Protection of the Unborn— The unborn’s entitlement to protection begins “from conception”, i.e., from the moment of conception. The intention is to protect life from its beginning, and the 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 laws up to the 6th month of pregnancy by allowing abortion at the discretion of the mother any time during the first 6 months when it can be done without danger to the mother.

¥say

protect the family against instrumentalization by the State.

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 petitioner’s 26

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

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 healthful 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 responsibility” and “inter-generational justice”, had a valid cause of action in questioning the grant of Timber Licensing Agreements (TLAs) for commercial logging purposes. 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 not 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 policy of conservation and protection the right to a balanced and healthful ecology.

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

¥say

policy of not accepting or considering as disqualified from work any woman worker who contracts marriage, runs afoul of the test of, and the right against, discrimination, which is guaranteed all women workers under the Constitution. While a requirement that a woman employee must remain unmarried may be justified as a “bona 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 17, Article II The State shall give priority to education, science and technology, arts, culture, 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

PMMS, Inc. vs. CA, 244 SCRA 770, the Court said that the requirement that a school must first obtain government authorization before operating is based on the State policy that educational programs and/or operations shall be of good quality and, therefore, shall at least satisfy minimum standards with respect to curricula, teaching staff, physical plant and facilities and administrative and management 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 that the Magna Carta for Disabled Persons mandates that qualified disabled persons be granted the same terms and conditions of employment as qualified ablebodied employees; thus, once hey have attained the status of regular workers, they should be accorded all the benefits granted by law, notwithstanding written or verbal contracts to the contrary. This treatment is rooted not merely in charity or accommodation, but in justice for all.

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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 or course of study subject to fair, reasonable, and equitable admission and academic requirements, the exercise of this right may be regulated pursuant to the police power of the State to safeguard health, morals, peace, education, order, safety and general welfare. Thus, persons who desire to engage in the learned professions requiring scientific or technical knowledge may be required to take an examination as a prerequisite to engaging in their chosen careers. This regulation assumes particular pertinence in the field of medicine, in order to protect the public from the potentially deadly effects of incompetence and ignorance.

¥say

(Read also Section 2, Article XIV)

Section 19, Article II The State shall develop a self-reliant and independent national economy effectively controlled by Filipinos. 28

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

Section 20, Article II The State recognizes the indispensable role of the private sector, encourages private 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 enterprise as a policy, it nevertheless reserves to the Government the power 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 Authority, G.R. No. 156041, February 21, 2007 and Pharmaceutical and Health Care Association 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 enshrines free enterprise as a policy”, it nevertheless reserves to the Government the power to intervene whenever necessary to promote the general welfare. Free enterprise does not call for removal of ‘protective regulations’. It must be clearly explained and proven by competent evidence just exactly how such protective regulation would result in the restraint of trade.

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Aside from envisioning a trade policy based on “equality and reciprocity”, the fundamental law encourages industries that are “competitive in both domestic and foreign markets,” thereby demonstrating a clear policy against a sheltered domestic trade environment, but one in favor of the gradual development of robust industries that can compete with the best in the foreign markets. (Tañada vs. Angara, 272 SCRA 18)

¥say

The Constitution does not necessarily rule out the entry of foreign investments, goods and services. It contemplates neither “economic seclusion” nor “mendicancy in the international community”.

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

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

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 local 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 -abdication by the national government of local government unit in order to broaden governmental powers the base of governmental powers.

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

¥say

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]

Lina vs. Pano, G.R. No. 129093, August 30, 2001, the Sc said that the basic relationship between the national legislature and the local government units has not been enfeebled by the new provisions in the Constitution strengthening the policy of local autonomy. Without meaning to detract from that policy, Congress retains 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

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 provision does not bestow a right to seek the Presidency; it does not contain a judicially enforceable constitutional right and merely specifies a guideline for legislative action. The provision is not intended to compel the State to enact positive measures that would accommodate as many as possible into public office. The privilege may be subjected to limitations. One such valid limitation is the provision of the Omnibus Election Code on nuisance candidates.

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Judge Dadole vs. COA, G.R. No. 125350, December 3, 2002, even as we recognize that 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 supervision by the President. xxx The President can only interfere in the affairs and activities of a LGU if he finds that the latter had acted contrary to law. The 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 patent nullity, because it violates the principle of local autonomy, as well as the doctrine of separation of powers of the executive and legislative departments in governing municipal corporations.

¥say

grant still includes the power to withhold or recall. True there are notable innovations in the Constitution, like the direct conferment on the LGUs of the power to tax which cannot now be withdrawn by mere statute. By and large, however, the national legislature is still the principal of LGUs, which cannot defy its will or modify or violate it. Ours is still a unitary form of government, not a federal state. Being so, any form of autonomy granted to local governments will necessarily be limited and confined within the extent allowed by the central authority.

Section 27, Article II The State shall maintain honesty and integrity in the public service and take positive 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

This principle operated as an implicit limitation on legislative powers as on the two other powers. In essence, separation of powers means the legislation belongs to Congress, execution 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 that, in general, no one department is able to act without the cooperation of at least one of the other departments. Purpose: To prevent concentration of powers in one department and thereby to avoid tyranny. The purpose was not to avoid friction, but, by means of the inevitable 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-B’Laan Tribal Association vs. Ramos, G.R. No. 127882, December 1, 2004, the court restrained itself from intruding into policy matters to allow the President and Congress maximum discretion in using mineral resources of our country and in securing the assistance of foreign groups to eradicate the grinding 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 co-equal branches of government of their official functions.” Let the development of mining industry be the responsibility of the political branches of the government. The questioned provisions of RA 7942 (Philippine Mining Act of 1995) are not unconstitutional.

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DOCTRINE OF SEPARATION OF POWERS

¥say

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

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 former’s certificate of service, the investigation conducted by the Ombudsman encroaches into the SC’s power of administrative supervision over all courts and its personnel, in violation of the 32

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

doctrine of separation of powers.

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 constitutional 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 Regulates both liberty and Affects property rights property

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Principle of Checks and Balances: This allows one department to resist encroachments upon its prerogative or to rectify mistakes or excesses committed by the other departments. The first and safest criterion to determine whether a given power has been validly exercised by a particular department is whether or not the power has been constitutionally conferred upon the department claiming its exercise—since the conferment is usually done expressly. However, even in the absence of express conferment, the exercise of the power may be justified under the doctrine of necessary implication. The grant of express power carried with it all other powers that may be reasonably inferred from it.

¥say

Principle of Blending of Powers: Instances when powers are not confined exclusively within one department but are assigned to or shared by several departments.

Taxation affects property rights

may be exercised only by may even be exercised by may be exercised only by 33

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

property taken is usually the property is wholesome the property is wholesome noxious(unpleasant and and devoted to public use and devoted to public use harmful) or intended for or purpose or purpose noxious purpose and may thus be destroyed compensation is the compensation is the full it is the protection and/or intangible, altruistic feeling and fair equivalent of the public improvements that the individual has property taken instituted by government for contributed to the public the taxes paid good Limitations: Generally, the Bill of Rights, although in some cases the exercise of the power prevails over specific constitutional guarantees. The courts may annul the improvident exercise of police power. These powers must not be exercised arbitrarily, to the prejudice of Bill of Rights. In Ericta vs. City Government of Quezon City, 122 SCRA 759, the City Government of QC was not exercising police power when they required private cemetery owners to reserve 6% of the burial lots for pauper’s burial ground. The SC 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 property. 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 the owners just compensation.

¥say

government; cannot be delegated to administrative body

Page 347/12/2008

government; cannot be private entities delegated to administrative body

In Philippine Press Institute vs. COMELEC, 244 SCRA 272, Sec. 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 ½ page as COMELEC space, was 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 of print space, nor that the resolution was the only reasonable and calibrated response to such necessity. This was held to be an exercise of the power of eminent domain, albeit

34

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

POLICE POWER— It is the power of promoting public welfare by restraining and regulating the use of liberty and property. It is the power vested by the Constitution 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 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 morals, and the general welfare. It is the power to prescribe regulations to promote the health, morals, peace, education, good order or safety and general welfare of the people (now common good). (Binay vs. Domingo, 201 SCRA 508)

Page 357/12/2008

Police power and power of taxation—cannot be delegated to administrative bodies. Police power and power of eminent domain both involved taking. They differ in purpose. Police power—to destroy; because the property is harmful, obnoxious, poses a risk to the public. Power of eminent domain—only private property is the subject of taking; the purpose is to convert the private property to public use.

¥say

invalid, because the COMELEC would not pay for the space to be given to it by the newspapers.

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 vested 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 welfare 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 questioned Resolution reveals that the Ombudsman dismissed petitioner’s criminal 35

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

Requisites (Limitations): 1. Lawful subject—the interests of the public in general as distinguished from those of a particular class, require the exercise of this power. 2. Lawful means—the means employed are reasonably for the accomplishment of the purpose, and not unduly oppressive on individuals.

¥say

complaint because respondents had validly resorted to the police power of the State when they effected the demolition of the illegal fishpond in question following 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 impelled by their desire to serve the best interest of the general public; for the good and the highest good.

Construction: construed strictly and any doubt must be resolved against the grant. 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 objective (Association of Landowners vs. Secretary of Agrarian Reform, 175 SCRA 343). 4. In Ortigas & Co. vs. CA, G.R. No. 126102, December 4, 2000, nonimpairment of contracts or vested rights clauses will have to yield to the superior and legitimate 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 constitutional right of every citizen to select a profession or course of study may be regulated pursuant to the police power of the State to safeguard health, morals, peace, education, order, safety, and the general welfare of the people. This regulation assumes particular pertinence in the field of medicine,

Page 367/12/2008

“Affected with public interest”—an industry is subject to control for the public good; it has been considered as the equivalent of “subject to the exercise of police power”.

36

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

Who may exercise police power? The power is inherently vested in Congress. However, they may validly delegate this power to the following: 1. the President 2. administrative bodies—public 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 authorize the President or any other administrative body, to take over the internal management of a cooperative. Accordingly, Memorandum Order No. 409, issued by the President, constituting an ad hoc committee to temporarily take over and manage 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 ordinance, approve resolutions and appropriate funds for the general welfare” of the inhabitants 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 police power.

Page 377/12/2008

In Chavez vs. Romulo, 431 SCRA 534, the right to bear arms is merely 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 one’s 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.

¥say

to protect the public from the potentially dead effects of incompetence and ignorance.

Section 11, Article X—the Congress may, by law, create special metropolitan political 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 jurisdiction of the metropolitan authority that will thereby be created shall be limited 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

For municipal ordinance to be valid: 1. it must not contravene the Constitution or any statute; 2. it must not be unfair or oppressive; 3. it must not be partial or discriminatory; 4. it must not prohibit, but may regulate, trade; 5. it must not be unreasonable; and 6. 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 certain forms of amusement, entertainment, services and facilities in the Ermita-Malate area”, for being contrary to the Constitution, infringing the guarantees of due process and equal protection of the laws.

Page 387/12/2008

However, in MMDA vs. Garin, G.R. No. 130230, April 15, 2005, although the law (RA 7924) does not grant the MMDA the power to confiscate and suspend or revoke drivers’ licenses without need of any legislative enactment, the same law vests the MMDA the duty to enforce existing traffic rules and regulations. 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 precluded—and in fact is dutybound—to confiscate and suspend or revoke drivers’ licenses in the exercise of its mandate of transport and traffic management, as well as the administration and implementation of all traffic enforcement operations, traffic engineering 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

¥say

Ma. Luisa Angeles Ramos

In Centeno vs. Villalon-Pornillos, 236 SCRA 197 (1994), solicitation for religious purposes may be subject to proper regulation by the State in the exercise of police power. In Acebedo Optical Company, Inc. vs. CA, 329 SCRA 314 (2000), the issuance 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

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 interest, it ceases to be juris privati only and becomes subject to regulation. The regulation is to promote the common good. Submission to regulation may be withdrawn by the owner by discontinuing use; but as long as the use of the property is continued, the same is subject to public regulation. In regulating rates charged by public utilities, the State protects the public against arbitrary and excessive rates while maintaining the efficiency and quality of services rendered. However, the power to regulate rates does not give the State the right to prescribe rates which are so low as to deprive the public utility of a reasonable return on investment.

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The implementation of the Comprehensive Agrarian Reform Law (CARL) is an exercise of police power and the power of eminent domain. To the extent that the CARL prescribes retention limits to the landowners, there is an exercise of police power for the regulation of private property in accordance with the Constitution. But where, to carry out such regulation, the owners are deprived of lands they own 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 possession 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 deprived 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 power of eminent domain requires that due process be observed in the taking of private property. [Roxas and Co., vs. CA, 321 SCRA 106 (1999)]

¥say

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 the police power of the State within the contemplation of the general welfare clause of the LGC.

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 ½ page as COMELEC space, was held to be invalid exercise of police power there being no showing of the 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, Bernas, 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 to such necessity.

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 property 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 government’s 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, but even the private property of all citizens within the territorial sovereignty, for public purpose.

Power of Eminent Domain involves public rights

Destruction Due to Necessity involves private rights such as selfpreservation and self-defense

the property is converted to public use

there is no need for the conversion to public use

there must compensation

be

payment

undertaken by the State

of

Page 407/12/2008

e.g. CONCERN FOR THE POOR—SC recognized this as one for public purpose and use.

¥say

Public purpose and use has broader concept now. It now includes VICARIOUS BENEFITS that society may derive from a particular measure.

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

In the case of Republic vs. CA, G.R. No. 146587, July 2, 2002, the power of eminent domain must, by enabling law, be delegated to local governments by the national 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 the legislative branch of government. JIL School Foundation vs. Municipality of Pasig, G. R. No. 152230, August 9, 2005—Sec. 19, of the LGC requires the LGU to tender a prior written definite and valid offer to acquire the property before the filing of the complaint for eminent domain. Filstream Int’l Inc. vs. CA, 284 SCRA 716—the exercise of the power of eminent domain is clearly superior to the final and executor judgment rendered by the court in an ejectment case.

Page 417/12/2008

Except: money- because compensation is also money Who may exercise? Generally, the legislature, but also upon valid delegation to: 1. the President; 2. lawmaking bodies of LGUs; 3. administrative bodies—public and quasi-public corporations 4. Private enterprises performing public services.

¥say

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

RP vs. PLDT, 26 SCRA 620—services were considered embraced in the concept 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 of the PLDT, as the needs of government service may require, subject to the payment 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Requisites: 1. Necessity—when exercised by: a. Congress—it is a political question; (Municipality of Meycauayan, Bulacan vs. IAC, 157 SCRA 640) b. Delegate—the determination of whether there is a genuine necessity for the exercise is a justiceable question (Republic vs. La Orden de Po. Benedictinos, 1 SCRA 649).

¥say

Where Expropriation Suit Is Filed: In the Regional Trial Court—because it is incapable of pecuniary estimation

Lagcao vs. Judge Labra, G.R. No. 155746, October 13, 2004—there was no showing at all why petitioners’ property was singled out for expropriation by the city ordinance 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 socialized housing project.

2. Private property—all 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 public was already in public use and no part of the ground could be taken for other public uses under a general authority. The City of Manila was without authority to expropriate the property. (The Congress itself should expropriate or there must be special grant.)

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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 (Bardillon vs. Brgy. Masili of Calamba, Laguna, G.R. No. 146886, April 30, 2003).

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

The taking of private property may include the impairment of the use of the property for which it was intended. In US vs. Causby, 328 US 256, the flight of planes from a nearby military airport over plaintiff’s property below the navigable airspace resulting in the ruin of plaintiff’s chicken farm was considered compensable taking. So also were low landing and take-off flights which made nearby residential 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 Light Railway Transit (LRT) was built, the commercial value of Avenida was greatly diminished. 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 they entitled to be paid just compensation? No. SC held that the kind of injury or loss that one must suffer that will justify the payment of just compensation must be a special kind of injury or loss as in the case of Causby. If the injury or loss that one suffered is one which he suffered 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 common good.

Page 437/12/2008

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)

¥say

d. The owner is deprived of jurisdiction, supervision and control of his property.

CANORECO vs. CA, G.R. No. 109338, November 20, 2000, The owner of the property cut 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 lines. His property becomes the servient estate subject to the encumbrance, and the 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. However, 43

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

In People vs. Fajardo, 104 Phil. 44, a municipal ordinance prohibiting a building which would impair the view of the plaza from the highway was considered taking. 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 possession 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 filed.

Taking under Eminent Domain Proceeding Only private properties may be taken

Taking under Police Power All properties are subject to taking

The private property is taken in order to The purpose of taking is to destroy the convert it to public use property because it is harmful or obnoxious to the public.

Page 447/12/2008

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 awarded full compensation against the NAPOCOR’s argument that the owners were not totally deprived of the use of the land and could still plant the same crops as long 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 manifested by the imposition by the plaintiff upon defendants that below said transmission lines no plant higher than 3 meters is allowed. Furthermore, because of the 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 latter shall continually pay the taxes due on said affected portion of their property.

¥say

Ma. Luisa Angeles Ramos

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 ½ page as COMELEC space, was held to be an exercise of power of eminent domain, albeit invalid, because 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

PPI vs. COMELEC there was taking of property newspaper space is the private property of the newspaper owners print media do not enjoy privilege

TELEBAP vs. COMELEC 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 communication and information. Equal protection clause was raised as an issue. The SC ruled that equal protection clause does not guarantee absolute equality. There may be classification. Persons or things ostensibly similarly situated may, nonetheless, be treated differently if there is a basis for valid classification.

Page 457/12/2008

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 without payment of just compensation. The SC held that all broadcasting, whether by radio or by television stations, is licensed by the government. Airwaves frequencies 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, among other things, to amendment by Congress in accordance with the constitutional provision 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 supervising radio and television stations, the State spends considerable public funds 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.

¥say

Ma. Luisa Angeles Ramos

4. Public use—“public interest”; “public benefit”; “public welfare”; “public convenience” (Reyes vs. NHA, G.R. No. 147511, January 20, 2003). The general concept—meeting public need or public exigency; may include indirect public benefit or advantage.

45

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

By express legislative authority granted by Congress in Sec. 19, RA 7160, LGUs may 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 SC held that the Sangguniang Panlalawigan of Agusan del Sur was without authority to disapprove Bunawan Municipal Resolution No. 43-89 because, clearly, the 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 Parañaque vs. V.M. Realty Corporation, 292 SCRA 676, the SC declared that there was lack of compliance with Sec. 19 of RA 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 the Sangguniang Bayan, because what is required by law is an ordinance and not mere resolution.

Page 467/12/2008

In Filstream Int’l Inc. vs. CA, 284 SCRA 716, the fact that the property is less than ½ hectare and that only a few could actually benefit from the expropriation does 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.

¥say

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 actually benefit from the expropriation of the property does not necessarily diminish the essence and character of public use. (Manosca vs. CA, 252 SCRA 412)

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 writ 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 Compensation—the full and fair market value of the property taken; it is the 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

The determination of just compensation in eminent domain cases is a judicial function and factual findings of the CA are conclusive on the parties and reviewable only when the case falls within the recognized exceptions. (NAPOCOR vs. San Pedro, G.R. No. 170945, September 26, 2006) Land Bank vs. CA (and DAR vs. CA), 249 SCRA 149—Sec. 16(e), RA 6657— the deposit of compensation must be in “cash” or in “Land Bank bonds” not in any other form, and certainly 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 damages (basic or actual) (CB)

+

consequential

(CD)

Page 477/12/2008

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 partly in bonds, because under the CARP it deals with the revolutionary kind of expropriation.

¥say

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 given and received therefor.”

If consequential benefits exceed consequential damages, CB and CD should be disregarded because the BASIC VALUE of the property should be paid in every case. Basic/market value—the price that may be agreed upon by the parties willing but not 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Current value of like properties

in particular case: size of lands, shape, location and tax declaration

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 of the law was the promotion of the welfare of the farmers, which came clearly under the police power of the state. To achieve this purpose, the law provided for the expropriation of agricultural lands (subject to minimum retention limits for the landowners) to be distributed among the landless peasantry. DARAB determines just compensation (exception to the general rule that courts decide 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 instances, 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 that title over the property passes to the government. Therefore, until the action for expropriation has been completed and terminated, ownership over the property being expropriated remains with the registered owner. Consequently, the latter 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 through expropriation.

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Consequential Benefits—the 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.

¥say

Consequential damages—injuries directly caused on the residue of the private property taken by reason of expropriation Example: the property left is in odd shape or with area virtually unusable

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

Legal interest for expropriation cases—6% -from the time of taking until just compensation is actually paid -interest must be claimed, otherwise, it is deemed waived

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 private 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 unfettered 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 State might need for public use”. All separate interests of individuals in property are held of the government under this tacit agreement or implied reservation. Notwithstanding 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 the people in their sovereign capacity; and they have the right to resume the possession of the property whenever the public interest requires it. Thus, the State or its authorized agents cannot be forever barred from exercising said right by 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 previous 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 issue; it cannot, however, bar the State or its agent, from thereafter complying with this requirement, as prescribed by law, and subsequently exercising its power of eminent domain over the same property. [Municipality of Parañaque vs. V.M. Realty Corp., 292 SCRA 678 (1998)]

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Genuine Necessity— National legislation—question of necessity is POLITICAL; judiciary has no power to inquire. Delegate—liberally 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.

¥say

Title to the property shall not be transferred until after actual payment of just compensation is made to the owner.

49

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

Right of landowner in case of non-payment of just compensation—as a rule, it does not entitle the landowners to recover possession of the expropriated lots, but only 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, 2003). 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; the first was in the expropriation proceedings, and the second, in the action for recovery of possession. Fifty-seven (57) years have passed since then. The Court construed the Republic’s 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 where the government failed to pay just compensation within 5 years from the finality of the judgment in the expropriation proceedings, the owners concerned shall have the right to recover possession of their property.

Plaintiff’s right to dismiss the complaint in Eminent Domain In expropriation cases, there is no such thing as the plaintiff’s “matter-of-right” to dismiss the complaint, precisely because the landowner may have already suffered damages at the start of the taking. The plaintiff’s right to dismiss the complaint has always been subject to court approval and to certain conditions. (NAPOCOR & Pobre vs. CA, G.R. No. 106804, August 12, 2004)

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

¥say

Ma. Luisa Angeles Ramos

Right to repurchase or re-acquire the property The property owner’s right to repurchase the property depends upon the character of the title acquired by the expropriator, e.g., if the land is expropriated for a particular purpose with a condition that when the purpose is ended or abandoned, the 50

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

Page 517/12/2008

Republic vs. CA, G.R. No. 146587, July 2, 2002, in arguing for the return of their property on the basis of non-payment, respondents ignored the fact that the right of the expropriatory authority is far from that of an unpaid seller in ordinary 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 public under a new and independent title.

¥say

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-Cebu International Airport Authority vs. CA, G.R. No. 139495, Novermber 27, 2000)

POWER OF TAXATION—is the power to demand from the members of society their proportionate 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, Bernas, 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 expenses of the Government.

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 grant to him under Sec. 23 (2), art. VI. Purpose: unavoidable obligation of the government to protect the people and extend them benefits in the form of public projects and services. Public purpose—proceeds must be devoted to public use. It includes INDIRECT public advantage/benefits. The mere fact that the tax will be directly enjoyed by private individual does not make it INVALID so long as the same link to public welfare is established.

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Basis: power emanating from necessity (lifeblood doctrine)

¥say

Scope: covers persons, property or occupation to be taxed within the taxing jurisdiction. It is so pervasive; it reaches even the citizens abroad and their income outside the Philippines; all the income earned in the Philippines by a citizen or alien.

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

Constitutional limitations: 1. Due process of law—tax 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 property—ad valorem tax—the taxpayer is entitled to be notified of the assessment proceeding and to be heard on the correct valuation. 2. Equal protection of law—taxes should be uniform and equitable. 3. Uniformity—persons/things belonging to the same class shall be taxed at the same rate Equitability—taxes 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, import and export quotas, tonnage and wharfage dues 9. Tax exemption of properties actually, directly and exclusively used for religious, 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 SC’s jurisdiction in tax cases 12. Tax exemption of revenues and assets of, including grants, endowments, donations, or contributions to, educational institutions.

¥say

Non-delegability of power; Territoriality or Situs of taxation; Exemption of government from taxation; International comity—generally accepted principles of international law

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2. 3. 4. 5.

Double taxation—additional 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, Bernas, 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 will result in violation of the equal protection clause. What is prohibited is direct double taxation.

Taxes—the 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.

Power of taxation—to raise revenue 2. AS TO LIMITATION

LICENSE Police power—to regulate

Rate or amount to be collected is unlimited Amount is limited to cost of: a)issuing the provided it is not confiscatory license; and b)necessary inspection of police surveillance 3. AS TO OBJECT Imposed on persons or property

Paid for privilege of doing something but privilege is revocable

4. AS TO EFFECT OF NON-PAYMENT Business or activity does not become Business becomes illegal illegal Tax Debt due to the government in its sovereign due to the government in its corporate capacity capacity

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TAX 1. AS TO BASIS

¥say

In Punzalan vs. Municipal Board of Manila, 95 Phil. 46, there is no double taxation if one tax is imposed by the LGU and the other by the National Government.

Taxes cannot be subject to off-setting or compensation for the simple reason that the government and the taxpayers are not creditors and debtors of each other. (Philex Mining Corp. vs. CIR, 294 SCRA 687)

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

Territoriality in Taxation—the power to tax operates only within the territorial jurisdiction of the taxing authority. It cannot be exercised beyond the boundaries except under certain circumstances. Taxable Situs of Real Properties—the place where they are situated Mobilia Sequntur Personam—the intangible personal property such as credits, bank deposits, bonds, corporate stocks which do not admit of actual location and do not have inherent value but mere evidence of debts or property are usually taxable in the state of residence of the owner. Uniformity in Taxation—all taxable articles, or kinds of property of the same class, shall be taxed at the same rate. There is uniformity when a tax operates in taxation with the same force and effect on its subject wherever found.

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In Lladoc vs. CIR, 14 SCRA 292, a parish priest accepted a donation to be used for the construction of a church. The money was spent for the purpose. The CIR imposed tax. The objection was based on constitutional exemption of church properties from taxes. The SC rejected. Exemption referred only to property taxes imposed 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 imposed on the priest (not on the properties) for his exercise of the privilege to accept the donation.

¥say

3. Sec. 4 (3), Art. XIV 4. Sec. 4 (4), Art. XIV 5. Where tax exemption is granted gratuitously, it may be revoked at will; but not if granted for a valuable consideration—deemed to partake of the nature of contract and obligation thereof—protection against impairment.

Equality of Taxation—taxes 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 person’s life, liberty or property which 55

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

government power may not touch.

Classification of Rights: 1. Political Rights—granted by law to members of a community in relation to their direct or indirect participation in the establishment or administration of government. 2. Civil Rights—rights which municipal law will enforce at the instance of private individuals for the purpose of securing them the enjoyment of their means of happiness. 3. Social and Economic Rights—these are the rights which generally require implementing legislation. (Article XIII)

¥say

All the powers of the government (police power, power of eminent domain and power of taxation) are limited by the Bill of Rights.

PBM Employees Org. vs. PBM Co., Inc., 51 SCRA 189  While the Bill of Rights also protects property rights, the primacy of human rights over property is recognized. Because these freedoms are “delicate and vulnerable, 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 sanctions,” they “need breathing space to survive,” permitting government regulation only “with 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 assembly occupy a preferred position as they are essential to the preservation and vitality of our civil and political institutions; and such priority “gives these liberties the sanctity and the sanction not permitting dubious intrusions.”

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Doctrine of Preferred Freedom (Hierarchy of Rights)—some rights are preferred

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 its object or purpose—that the law is neither arbitrary nor discriminatory nor oppressive—would suffice to validate a law which restricts or impairs property rights.  On the other hand, a constitutional or valid infringement of human rights requires a more stringent criterion, namely existence of a grave and immediate danger 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, Bernas, 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.

A. DUE PROCESS OF LAW That which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial. Applies to all persons, without regard to any difference in race, color or nationality Artificial persons—covered 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) Life—includes the right of an individual to his body in its completeness, free from dismemberment, and extends to the use of God-given faculties which make life enjoyable.

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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 obligation 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.

¥say

LIMITATIONS OF SOVEREIGNTY

Liberty—includes the right to exist and the right to be free from arbitrary personal 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) Property—is 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 right 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

1. Procedural Due Process—the method or manner by which the law is enforced.

Impartial Court or Tribunal—Judges 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. Clave—Jacobo 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, upheld his own earlier decision. The SC held that this violates fundamental fairness 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 orderly and expeditious presentation of evidence, and have the duty to ask questions that would elicit the facts on the issues involved, clarify ambiguous 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. III—No person shall be held to answer for a criminal offense without due process of law. ---This is procedural due process in criminal cases

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Requisites: (non-criminal cases) a. An impartial court or tribunal clothed with judicial power to hear and determine matter before it; b. Jurisdiction properly acquired over person of defendant and over property which is the subject matter of the proceeding; c. Opportunity to be heard; and d. Judgment rendered upon lawful hearing and based on evidence adduced.

¥say

It serves as a restriction on actions of judicial and quasi-judicial agencies of the government.

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 guilty of depriving the accused of due process. Thus false testimony can be questioned 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

2. Substantive Due Process—it requires that the law itself, not merely the

procedures by which the law would be enforced, is fair, reasonable and just. This serves as a restriction on the government’s law and rule-making powers; a prohibition of arbitrary laws.

Requisites: a. Interest of the public; b. Means employed are reasonably necessary for accomplishment of purpose and not unduly oppressive. The legislature may not, under the guise of protecting the public interest, arbitrarily interfere with private business or impose unusual and unnecessary restrictions upon lawful occupations. Void-for-vagueness Rule—a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute, or is so indefinite that it encourages arbitrary and erratic arrests and convictions is void for vagueness. The constitutional vice in a vague or indefinite statute is the injustice to the accused in placing him on trial for an offense, the nature of which he is given no fair warning. A law is “vague” as not to satisfy the due process need for notice when it lacks comprehensible standards that “men of common intelligence must necessarily guess as to its meaning and differ as to its application” or is so indefinite that “it encourages arbitrary and erratic arrests and convictions.” It is injustice to the accused in placing him on trial for an offense, the nature of which he is given no fair warning.

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As a general rule, when the State acts to interfere with life, liberty, or property, the presumption is that the action is valid. In rare cases, as in “prior restraint”, there is a presumption of invalidity.

¥say

The heart to substantive due process is the “reasonableness”, or the absence of exercise of arbitrary power. These are necessarily relative concepts which depend on the circumstances of every case.

It is repugnant to the Constitution in 2 aspects: 1. It violates due process for failure to accord persons, especially the parties 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 clarified by either saving clause or by construction. (People vs. Dela Piedra, 350 SCRA 163, January 24, 2001) Overbreadth Doctrine—decrees 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, Bernas, 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.

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 omitted. 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 discretion 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 dispensed w/ altogether. The reason is that such omission would offend due process insofar as it would deny the public knowledge of the laws that are supposed to govern it. Conclusive presumption of knowledge of the law.-- The conclusive presumption that 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 application, 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 citizenship to a particular individual, like a relative of Pres. Marcos who was decreed instant naturalization.

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“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 activities are constitutionally protected. It constitutes a departure from the case and controversy requirement of the Constitution and permits decisions to be made without concrete factual settings and in sterile abstract contexts.

¥say

Facial Challenge—a facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible “chilling effect” upon protected speech.

RULE: All statutes, including those of local application and private laws, shall be published as a condition for their effectivity, w/c shall begin 15 days after 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 to a valid delegation. 60

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

Publication of laws is part of substantive due process. It is imperative to the validity of laws, PDs, EOs, Administrative rules and regulations except interpretative legislations. (Tañada 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 the 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 published in a newspaper of general circulation. After the EDSA revolution, upon the reconstitution of the SC, the original judgment was reconsidered, and the SC now ruled that publication must be made in the Official Gazette, pursuant to CA 638 and the Civil Code, unless a law "provides otherwise" that is, a different mode of publication. What must be published are (1) all laws of general application, and even those not of general application like (2) private laws affecting only particular individuals, e.g., legislative grant of citizenship, (3) laws of local application, and (4) rules and regulations of a substantive character. This means not only the title but the entire law. When? Forthwith, that is, immediately. 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 affords 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 withheld to accommodate the more compelling interest of the State—to 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 notice to, participation of complainants at the REINVESTIGATION does not render the resolution of the Ombudsman null and void. (But in preliminary investigation, their participation is needed.)

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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 instructions 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 number of the PD, the title of such decree, its whereabouts, the supposed date of effectivity, and in a mere supplement of the OG cannot satisfy the publication requirement. This is not even substantial compliance.

¥say

Ma. Luisa Angeles Ramos

Exceptions to Notice and Hearing Requirements Philcomsat vs. Alcuaz (1989)—without conducting any hearing, NTC ordered PHILCOMSAT 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 required 61

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

BUT, in Radio Communications vs. NTC (1990)—the Court upheld the temporary rates granted by the NTC asserting that the law allows the NTC to approve temporary rate requested by public service agency provided hearings are held within 30 days thereafter. As a general rule, notice and hearing, as the fundamental requirements of procedural due process, are essential only when an administrative body exercises its QUASIJUDICIAL function.

¥say

hearing. NTC replied that the order was merely interlocutory. The SC held that fixing rates is quasi-judicial in nature. Hence, unlike in the exercise of quasi-legislative 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 purposes it is final as to the period covered.

Suntay vs. People (1957)—the passport of a person sought for the commission of a crime 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 Bank’s dishonor of Calderon’s credit card, inasmuch as the dishonor was justified under its Credit Card Agreement which 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 Constitution gives a person the right to appeal, denial of the right to appeal constitutes 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, January 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. 118457, April 8, 1997).

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In the exercise of its EXECUTIVE or LEGISLATIVE functions, such as issuing rules and regulations, an administrative body need not comply with the requirements of notice and hearing.

Go vs. CA, 206 SCRA 138, when there is statutory grant of the right to preliminary investigation, denial of the same is an infringement of the due process clause. The right to preliminary investigation is substantive, not merely formal or 62

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

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 during custodial investigation. It is not an absolute right and may, thus, be invoked or rejected in a criminal proceeding and, with more reason, in an administrative 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 party in an administrative inquiry may or may not be assisted by counsel, irrespective of the nature of charges and of the respondent’s capacity to represent himself, and no duty rests on such body to furnish the person being investigated with counsel. In an administrative proceeding, a respondent has the option of engaging the services of counsel or not. Thus, the right to counsel is not imperative in administrative investigations because such inquiries are conducted merely to determine whether there are facts that merit disciplinary measures against erring public officers and 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:

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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)

¥say

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, February 22, 2001)

1. On the basis of Extradition Law Sec. 6 of PD 1069—Extradition Law, uses the word “immediate” to qualify the arrest of the accused. This qualification would be rendered nugatory by setting for hearing the issuance of the arrest warrant. Hearing entails sending notices to the opposing parties, receiving facts and arguments from them, and giving them time to prepare and present such facts and arguments. Arrest subsequent to a hearing can 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

2. On the basis of the Constitution Even Sec. 2 of Article III does not require a notice and hearing before the issuance of a warrant of arrest. To determine probable cause for the issuance of arrest warrants, the Constitution itself requires only examination--under oath or affirmation—of complainants and the witnesses they may produce. There is no requirement to notify and hear the accused 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 every 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 to provide for a more specific guaranty against any form of undue favoritism or hostility 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 treated alike, both as to rights conferred and responsibilities imposed. Similar subjects, in other words, should not be treated differently, so as to give undue favor to some and unjustly discriminate against others.

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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 make an exhaustive determination to ferret out the true and actual situation, immediately upon the filing of the petition. From the knowledge and the material then available to it, the court is expected merely to get a good first impression—a prima facie finding—sufficient to make a speedy initial determination as regards the arrest and detention of the accused.

¥say

intended the word as a mere superfluity but, on the whole, as a means of impairing a sense of urgency and swiftness in the determination of whether a warrant or arrest should be issued.

It does not require the universal application of the laws on all persons or things without distinction. This might in fact sometimes result in unequal protection, as where, for example, a law prohibiting mature books to all persons, regardless of age, would benefit the morals of the youth but violate the liberty of adults. What the clause requires is equality among equals as determined according to a valid classification. By classification is meant the grouping of persons or things similar to each other in certain particulars and different from all others 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Art. XIII, Secs. 1&2 (social justice)—political & economic Section 1—The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good. To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and its increments. Section 2—The 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 POLICY—The Congress shall, upon recommendation of the economic and planning agency, when the national interest dictates, reserve to citizens of the Philippines or to corporations 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 areas of investments. The Congress shall enact measures that will encourage the formation and operation of enterprises whose capital is wholly owned by Filipinos. In the grant of rights, privileges, and concessions covering the national economy 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 priorities.

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Scope: Political, Economic and Social Equality

¥say

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

Art. XII, Sec. 2(2) (reservation of marine resources)—economic The State shall protect the nation’s marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively 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 assistance shall 65

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

Art. IX-C, Sec. 10 (protection of candidates)—political Bona fide candidates for any public office shall be free from any form of harassment and discrimination. Art. II, Sec. 26 (public service)—The State shall guarantee equal access to opportunities for public service, and prohibit political dynasties as may be defined by law. Art. II, Sec. 14 (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. There are areas of economic activity which can be limited to Filipinos. The Constitution itself acknowledges this in various places - exploitation of marine wealth (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 are admitted to the country as immigrants.

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Art. VIII, Sec. 5(5) (legal aid to the poor)—xxx Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the IBP, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.

¥say

not be denied to any person by reason of poverty.

Valid Classification: Persons or things ostensibly similarly situated may, nonetheless, be treated differently if there is a basis for valid classification. The requisites are: 1. Classification must be based on substantial distinctions which make for real differences; 66

2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, 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 law—the distinctions which are the bases for the classification should have a reasonable relation to the purpose of the law;

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 which their class was exposed. Administration of Justice Chavez vs. PCGG, G.R. No. 130716, December 9, 1988, Special grant of exemption in favor of the Marcoses as contained in the agreement entered into by PCGG with Marcos Family to compromise the ill-gotten wealth cases (exempt from all taxes) filed by the former against the latter is a CLASS LEGISLATION, vilative of the equal protection clause. Lacson vs. Executive Secretary, G.R. No. 128096, January 20, 1999, petitioner’s and intervenor’s right to equal protection was not violated by the enactment of RA 8249 because the law was not directed only to Kuratong Baleleng cases. Every classification made by law is presumed reasonable, and the party who challenges the law must present proof of arbitrariness.

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Philippine Judges Association vs. Prado, 227 SCRA 703, The withdrawal of franking privileges formerly granted to the judiciary but remained with the executive and legislative departments, was declared unconstitutional, because the three branches of government are similarly situated.

¥say

3. Not limited to existing conditions only; and 4. It must apply to all members of the same class.

Public Policy Ceniza vs. COMELEC, 95 SCRA 763, The law excluding residents of Mandaue City from voting for provincial candidates was justified “as a matter of legislative discretion” and that equal protection would be violated only if group within the city were 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Classification based on valid and reasonable standards does not violate the equal 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 determined by a mere comparison of its provisions of the Constitution since the statute may be constitutionally valid as applied to one set of facts and invalid in application to another. A statute valid at one time may become void at another 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.

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The Constitution does not require absolute equality among residents. It is enough that all persons under like circumstances or conditions are given the same privileges and required to follow the same obligations.

¥say

Olivares vs. Sandiganbayan, 248 SCRA 700, when the mayor issued permit in favor of unidentified vendors while imposing numerous requirements upon Baclaran Credit 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 area” of Subic Special Economic Zone and denying them to those who live within the zone but outside such “fenced in” territory is VALID.

In Dumlao v. Comelec, 95 SCRA 392 (1980), the SC upheld the validity of sec. 4 of 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 opportunity to run the local government. In Igot v. Comelec, 95 SCRA 392 (1980), however, the disqualification of candidates convicted or simply charged with national security offenses was struck down as unconstitutional, for violating the presumption of innocence and thus ultimately the equal political protection.

68

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

Scope: The protection is available to all persons, including aliens, whether accused of crime or not. Artificial persons are also entitled to the guarantee, although they may be required to open their books of accounts for examination by the State in the exercise of police and taxing powers. 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 person whose right is invaded, not by one who is not duly authorized to effect such waiver. (People vs. Damaso, 212 SCRA 457) SEARCH WARRANT—may be said to particularly describe the things to be seized when the 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 the warrant officer may be guided in making the search and seizure; or when the things described are limited to those which bear direct relation to the offense for which the warrant is being issued. WARRANT OFARREST—said to particularly describe the person to be seized if it contains the name of the person to be arrested.

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Sec. 2, Article III Searches and Seizures The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose 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 may produce, and particularly describing the place to be searched and the persons or things to be seized.

¥say

Ma. Luisa Angeles Ramos

Requisites of a valid warrant: 1. It must be based upon probable cause—such facts and circumstances antecedent to the issuance of the warrant that in themselves are sufficient to induce a cautious man to rely on them and act in pursuance thereof. It consists of a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing accused to be committing the offense or to be guilty of the offense.  For a search warrant—such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the 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, Bernas, 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)

2. The probable cause must be determined personally by the judge. The judge shall: a. Personally evaluate the report and the supporting documents submitted by the public prosecutor regarding the existence of probable cause and on the basis thereof, issue a warrant of arrest; or b. If the basis thereof he finds no probable cause, he may disregard the prosecutor’s 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  The judge must personally examined in the form of searching Q&As, in writing and under oath, the complainant and any witnesses he may produce on facts personally known to them.

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In Stonehill v. Diokno, 20 SCRA 385 (1967), 42 search warrants were issued for alleged violation of Central Bank Laws, the Tariff and Customs Code, the NIRC, and the Revised Penal Code. The SC voided the warrants on the ground that it was impossible for the judge to have found probable cause in view of the number of laws alleged to have been violated by the petitioner. How could he even 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 was issued was probably guilty thereof? In truth, this was a fishing expedition, which violated the sanctity of domicile and privacy of communications. To establish the requirement of probable cause, the rule is: One crime, one warrant.

¥say

 For a warrant of arrest—such facts and circumstances which would lead a reasonably and prudent man to believe that an offense has been committed by the person sought to be arrested (Webb vs. De Leon, G.R. No. 121234, August 23, 1995)

Warrant of arrest  It is not necessary that the judge should personally examine the complainant and his witnesses; the judge would simply personally review the initial determination of the prosecutor to see if it is supported by substantial evidence.

 The determination of probable cause depends to a large extent upon the  Judge determines the probability, not finding or opinion of the judge who 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

conducted the required examination of and, in so doing, he need not conduct a the applicant and the witnesses. de novo hearing.

The requirement that the judge must personally examine the complainant and his witnesses 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 case, when the BIR agent and his witnesses arrived in court in the middle of a hearing, 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 with the hearing, he went back to his chambers and finding that the examination was finished, asked the BIR agent and his witnesses if they affirmed what they what 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 testifies. 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 Rodriguez v. Villamiel, the testimony based on a military report that the newspaper We Forum 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 investigation 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 valid.

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the complainant and the witnesses he may produce. The examination conducted by the judge takes the form of searching questions.

¥say

3. The determination must be made after examination under oath or affirmation of

4. It must particularly describe the place to be searched and the persons or things to be seized. Search warrant  The description of the property to be seized need not be technically accurate nor necessarily precise, and its nature will necessarily vary according to whether the identity of the property or its character is a matter of concern; the description is

Warrant of arrest  General warrants are proscribed and unconstitutional. However, a John Doe Warrant (a warrant for the apprehension of a person whose true name is unknown) satisfies the constitutional requireme3nt of particularity if there is some descriptio 71

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

required to be specific only insofar as the personae which will enable the officer to circumstances will allow. identify the accused.

In Corro v. Lising, the search and seizure of "printed copies and dummies of Philippine Times, subversive documents, articles, printed matters, handbills, leaflets, banners, and typewriters, tape recorders, etc." was again invalidated for the description was not at all particular or specific, thus making the warrants general 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. The instruction to seize "subversive materials" is not valid because the determination of whether a material is subversive or not is not for the police officer to decide; no unfettered discretion must be granted to him. The matter is different if goods were searched and seized because of their intrinsic quality (as when they are stolen or smuggled), than if the goods were searched 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 item is required to avoid delegating the appreciation of ideas, and thus threaten free expression. Properties subject to Seizure: 1. Property subject of the offense; 2. Property stolen or embezzled and other proceeds or fruits of the offense; and 3. Property used or intended to be used as the means of committing an offense.

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In Burgos v. Chief of Staff, the description which read "subversive documents, leaflets, 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 particular descriptions, thus making the warrant a general warrant.

¥say

Failure to state with particularity the place to be searched and items to be seized makes the warrant used for fishing evidence (a general warrant) which is void.

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 one 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 that such evidence 72

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

It has also been held that where the accused did not raise the issue of the admissibility of the evidence against him on the ground that it had been illegally seized, 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 attempting to commit an offense;

¥say

“shall be inadmissible for any purpose in any proceeding.” Such evidence is the fruit of the poisonous tree. However, it is submitted that it may nonetheless be used in the judicial or administrative action that may be filed against the officer responsible for its illegal seizure.

3. When the person to be arrested is an escapee or a detention prisoner. (Section

5, Rule 113, Rules of Criminal Procedure) The Rule requires that the accused perform some overt act that would indicate that he has committed, is actually committing, or is attempting to commit an offense. 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

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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 arrested has committed it; and

The reason is the person may escape easily if a warrant has to be applied for the mean time. In the Tariff and Customs Code, customs agents are specifically authorized 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 criminal is inside the car). There is no question that when a child has been reported kidnapped in a community, the police can stop all cars and check if the detained 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, Bernas, 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 lawfully 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.

The law allows the arresting officer to search a person validly arrested (by frisking 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, there 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 apartment and destroy the documents, having been arrested already.

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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, because it was an incident of a valid arrest. But after the EDSA revolution, the reconstituted SC granted the motion for reconsideration 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 situation is not one involving a valid incidental search.

¥say

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 within the area of control of the arrested person, and within the time of the arrest.

In People vs. Chua Ho San, 308 SCRA 432, while a contemporaneous search of a person arrested may be effected to discover dangerous weapons or proofs or implements used in the commission of the crime and which search may extend to the area within his immediate control where he might gain possession of a weapon or evidence 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 the 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 pretext for conducting a 74

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

As a consequence of appellant’s valid warrantless arrest, he may be lawfully searched 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 discovery in his car of drug paraphernalia and the crystalline substance, which, was later identified as shabu, though in a distant place from where the illegal possession of firearms was committed, cannot be said to have been made during an illegal. 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 crime, 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 delito arrest, two (2) requisites must concur: 1) the person to be arrested must execute 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 done 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 officer may take from the arrested individual any money or property found upon the latter’s 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 escaping; 4. May be used in evidence in the trial of the case.

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In the case of People vs. Go, 354 SCRA 338 (2001), the police saw the gun tucked in appellant’s 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 for 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 exceptions under the Rules.

¥say

search. In this instance, the law requires that there be first a lawful arrest before a search can be made—the process cannot be reversed.

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 instances of permissible arrest enumerated in Section 5(a), Rule 113 of the Rules of Court. 75

2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, 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 officer could reasonably assume—since the informant was by their side and had so informed them and pointed out the culprit—that the drugs were in the appellant’s 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.

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 consent 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.

¥say

(c) When things seized are within plain view of a searching party

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 lawful intrusion, he came inadvertently across a piece of evidence incriminating the 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 exposed 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 transparency, 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 prohibited 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 crime, contraband or otherwise subject to seizure. (People vs. Doria, 301 SCRA 668)

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Plain View Doctrine—finds application only when the incriminating nature of the object is in the “plain view” of the police officer.

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 to 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

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 probable cause to make an actual arrest. Requisites for Stop-and-Frisk 1. The police officer should properly introduce himself and make the initial inquiries, approach and restrain a person who manifests unusual and suspicious conduct, in order to check the latter’s outer clothing for possibly concealed weapons. 2. The apprehending officer must have a genuine reason to warrant the belief that 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 object 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.

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citizen on the street, interrogate him, and pat him for weapons where a police officer observes an unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with 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 reasonable inquiries, and where nothing in the initial stages of the encounter serves 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 which might be used to assault him.

¥say

Ma. Luisa Angeles Ramos

In People vs. Bongcarawan, G.R. No. 143944, July 11, 2002, the shabu in the baggage of the accused was found by (private) security officers of the interisland passenger vessel who then reported the matter to the Philippine Coast Guard. The search and seizure of the suitcase and contraband items were carried out without government intervention. Accordingly, the exclusionary rule may not be invoked. (f) Searches of vessel and aircraft for violation of fishery, immigration and customs law (g) Searches of automobiles at borders or constructive borders for violation of immigration and smuggling laws 77

2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, 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, sanitary and building regulations (i) Conduct of “areal target zoning” and “saturation drive” in the exercise of military powers of the President

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 agents were limited to a visual search of pedestrians. It would also defeat the purpose for which such ban was instituted. Those who intend to bring a gun during said period would know that they only need a car to be able to easily perpetrate their malicious designs.

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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 infringed, or threatened to be infringed. Not all searches and seizures are prohibited. Those which are reasonable are not 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, routine checkpoints do intrude, to a certain extent, on motorists’ right to “free passage without interruption,” but it cannot be denied that, as a rule, it involves only a brief detention of travellers during which the vehicle’s occupants are required to answer a brief question or two. For as long as the vehicle is neither searched nor its occupants subjected to a body search and the inspection of the vehicle is limited to a visual search, said routine checks cannot be regarded as violative of an individual’s right against unreasonable search. In fact, these routine checks, when conducted in a fixed area, are even less intrusive.

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(j) Visual search at checkpoints

There is no need for checkpoints to be announced. Not only it would be impractical, 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 location 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 authority and demand that they be allowed entry. They may only break open any outer or inner door or window of a house to execute the search warrant if, after such 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

1. A party whose premises or is entitled to the possession thereof refuses, upon demand, to open it; 2. When such person already knew of the identity of the officers and of their authority and persons; 3. When the officers are justified in the honest belief that there is an imminent peril to life or limb; 4. When those in the premises, aware of the presence of someone outside, are then engaged in an activity which justifies the officers to believe that an escape 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 unreasonable searches and seizures refers to the immunity of one’s person from interference by government and it cannot be extended to acts committed by private individuals so as to bring it within the ambit of alleged unlawful intrusion.

¥say

Ma. Luisa Angeles Ramos

 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 exposure of their persons or property to the public in a manner reflecting a lack of subjective expectation of privacy, which expectation society is prepared to recognize as reasonable. Such recognition is implicit in airport security procedures. With increased concern over airplane hijacking and terrorism has come increased security at the nation’s airports. Passengers attempting to board an aircraft routinely pass through metal detectors; their carry-on baggage as well as checked luggage, are routinely subjected to x-ray scans. Should these procedures suggest the presence of suspicious objects, physical searches 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 subject to search and, if any prohibited materials or substances are found, such would be subject to seizure. These announcements place passengers on notice that ordinary constitutional protection against warrantless searches and seizures do not apply to routine airport procedures.

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Do the ordinary right against unreasonable searches and seizures apply to searches conducted at the airport pursuant to routine airport security procedures?

People vs. Susan Canton, G.R. No. 148825, December 27, 2002, a search made pursuant to a routine airport security procedure is allowed under RA 6235, which provides that every airline ticket shall contain a condition that hand-carried luggage, etc., shall be subject to search, and this condition shall form part of the contract between the passenger and the air carrier. To limit the action of the airport security personnel to simply refusing the passenger entry into the aircraft and sending her home (as suggested by the appellant), and thereby depriving the security personnel of “ability and facility to act accordingly, including to further search without warrant, in light of such circumstances, would 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Sec. 3, Article III (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law. (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 recognized in Section 3(1) of Article III. Other facts of the right to privacy are protected 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)

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Procedure for Seizure of Pornographic Materials: To justify a warrantless search as an incident to a lawful arrest, the arrest must be on account of a crime having been committed; 1. There must be a criminal charge against the person for purveying the porno materials; 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)

¥say

to the detriment of the society.” The strip search in the ladies’ room was justified under the circumstances.

Zones of privacy recognized and protected in our laws: 1. The Civil Code provides that “every person shall respect the dignity, personality,

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, Bernas, 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 privacy of another. It also holds a public officer or employee or any private individual liable for damages for any violation of the rights and liberties of another person, 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

4. Secrecy of Bank Deposits (RA 1405) 5. Intellectual Property Law (RA 8293) 6. Rules of Court—on 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 communication 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 communicate 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 principally affecting national security; and 2. When authorized by the court which may be issued under the following conditions: a. The constitutional requirements for the issuance of a warrant should be complied with; and b. The authority shall be effective only for sixty (60) days.

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3. Anti-Wiretapping Law (RA 4200)—invasion of privacy.

¥say

revelation of trade and industrial secrets, and trespass to dwelling.

Any evidence obtained in violation of this law is not admissible in any proceeding. 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 not make any distinction. A telephone extension is not among the devices covered by this law. (Gaanan 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 one 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

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 for are to be executed), to execute any of the acts declared to be unlawful in cases 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 national security

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officer Navarro and Lingan, one of the two media men, which led to fisticuffs. Lingan fell and his head hit the pavement which caused his death. During the trial, Jalbuena, the other media man, testified. Presented in evidence to confirm his testimony was a voice recording he had made of the heated discussion at the police station between accused police officer Navarro and the deceased, Lingan, which was taken without the knowledge of the two. The SC held that Jalbuena’s 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 prohibits the overhearing, intercepting or recording of private communications. Since 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]

¥say

Ma. Luisa Angeles Ramos

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 enumerated herein has been committed or is being committed provided, that in cases involving the offenses of rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, such authority shall 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Effectivity: The authorization shall be effective for the period specified in the 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 authority 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 certifying that no duplicates or copies are included in the envelope or package deposited with the court; 3. shall not be opened, or the recordings replayed, or used in evidence or their 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.

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Contents: 1. The identity of the person or persons whose communications, conversations, discussions, or spoken words are to be overheard, intercepted, or recorded and, in the case of telegraphic or telephonic communications, the telegraph line and the telephone number involved and its location; 2. The identity of the peace officer authorized to overhear, intercept, or record 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.

¥say

b) That there are reasonable grounds to believe that evidence may be obtained essential to the conviction of any person for, or to the solution of, or to the prevention of, any of such crimes; c) That there are no other means readily available for obtaining such evidence.

PENALTY Any person who violates the provisions of this Act, shall, upon conviction, be punished 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 public office if the offender be a public official at the time of the commission of the offense; and 83

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

Exclusionary Rule Art. III, Sec. 3. xxx (2) Any evidence obtained in violation of this (privacy of communication and correspondence) or the preceding section (unreasonable searches and seizures) shall 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 the evidence is not effected by the illegality of the means by which it was acquired. 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 noting 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 noted, the insufficiency of the other remedies (e.g. action for damages, criminal punishment, resistance), especially in the Philippines where violations were committed 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 constitutional rights.

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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 contained, obtained or secured by any person in violation of this Act shall not be admissible in evidence in any judicial, quasi-judicial, or administrative hearing or investigation.

¥say

3. If the offender is an alien, he shall be subject to deportation proceedings.

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 only its suppression can be asked for. But if the thing is legal, the party can ask 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

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 consisting 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 before a court of competent jurisdiction. Further, the account must be clearly identified, the inspection limited to the subject matter of the pending case before the court of competent jurisdiction. The bank personnel and the account holder must be notified to be present during the inspection, and such inspection 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 amended, 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 irregularity has been or is being committed and that it is necessary to look into deposit to establish such fraud or irregularity; 2. In an examination made by an independent auditor hired by the bank to conduct 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 of 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

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In Aberca v. Ver, the SC held that even if the privilege of the writ is suspended, the court can nevertheless entertain an action not only against the task force 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 suspension 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 not make a distinction.

¥say

Civil Action for Damages A civil case for damages can also be filed pursuant to Article 32 of the Civil Code.

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

Sec. 4, Article III No law shall be passed abridging the freedom of speech, of expression, or the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. The rule on privileged communications has its genesis not in the nation’s penal code but in the Bill of Rights of the Constitution guaranteeing freedom of speech and of the press. As early as 1918, in US vs. Cañete, 38 Phil 253, the SC ruled that publications which are privileged for reasons of public policy are protected by the constitutional guaranty of freedom of speech. This constitutional right cannot be abolished by the mere failure of the legislature to give it express recognition in the statute punishing libel. (Borjal vs. CA, 301 SCRA 1)

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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 mode, form, kind or type of electronic or other surveillance equipment or intercepting and tracking devices, or with the use of any suitable ways and means for that purpose, any communication, message, conversation, discussion, or spoken or written words between members of terrorist group. Provided, That surveillance, interception and recording of communications between lawyers and clients, doctor and patients, journalists and their sources and confidential business correspondence shall not be authorized.

¥say

yet no pending litigation before any court of competent authority. What is existing is an investigation by the Office of the Ombudsman. In short, what the Office of the Ombudsman would wish to do is to fish for additional evidence to formally 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 inspection.

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 listen, who may not be herded by the government into a captive audience. Types of Privileged Communications: 1. Absolutely privileged communications—those which are not actionable even if the 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

the Congress or in any Committee thereof. privileged communications—those contained defamatory imputations are not actionable unless found to have been made without good intention or justifiable motive. To this genre belong “private communications” and “fair and true report without any comments or remarks.”

2. Freedom from subsequent punishment. Free speech and free press may be identified with the liberty to discuss publicly and truthfully any matter of public interest without censorship and punishment. There is to be no previous restraint on the communication of views or subsequent liability whether in libel suits, prosecution for sedition, or action for damages, or contempt proceedings unless there be a clear and present danger of substantive evil that Congress has a right to prevent. (Chavez vs. Gonzalez, G.R. No. 168338, February 15, 2008) Restrictions on Free Speech: 1. Content-based Restrictions—are imposed because of the content of the speech itself; distort public debate, have improper motivation, and are usually imposed 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 announcers from campaigning either for or against an issue in a plebiscite must have compelling 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 overbreadth and vagueness.

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Freedom of Expression— Aspect: 1. Freedom from censorship or prior restraint; and

¥say

2. Qualifiedly

2. Content-neutral Restrictions—are those which are not concerned with the

content of the speech. The clear-and-present danger rule is inappropriate as a test for determining 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

1. Clear and Present Danger Rule—when words are used in such circumstance

and of such nature as to create a clear and present danger that will bring about substantive evil that state has the right to prevent. 2. Dangerous Tendency Rule—words uttered create a dangerous tendency of an

evil which State has the right to prevent.

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 vehicles 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 resources of the candidate. The owner can even prepare his own decals or stickers for posting on his personal property. To strike down this right and enjoin it is impermissible encroachment of his liberties. The prohibition on posting of decals and stickers on “mobile” places whether public or private except in authorized areas designated by the COMELEC becomes censorship which cannot be justified by the Constitution. 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 every man is presumed innocent until his guilt is judicially proved, and every false imputation is deemed malicious, nevertheless, when the discreditable imputation is directed against a public person in his public capacity, it is not necessarily actionable. In order that such discreditable imputation to a public official may be actionable, 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 facts, it is immaterial that the opinion happens to be mistaken, as long as it might reasonably inferred from the facts. (Borjal vs. CA, 301 SCRA 1)

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public order, and the regulation results in an indirect, conditional, partial abridgment of speech, the duty of the courts is to determine which of the 2 conflicting interests demand greater protection under the particular circumstances presented.

¥say

3. Balancing of Interest Test—when particular conduct is regulated in interest of

Right to Assemble and Petition Government The right to assemble is not subject to prior restraint and may not be conditioned upon the prior issuance of a permit or authorization from the government authorities. However, the right must be exercised in such a way as will not prejudice the public welfare. If assembly is to be held at a public place, permit for the use of such place, and 88

2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, 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, January 27, 1948)

Test for Lawful Assembly: 1. Purpose Test—the purpose for which the assembly is held regardless of the auspices 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 itself, namely, maximum tolerance, which specifically means “the highest degree of restraint that the military, police and other peace keeping authorities shall observe 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 and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights. Religion—any 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 his 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 another; c. Nor influence a person to go to or remain away from church against his will; nor

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The provisions of BP 880 (Public Assembly Act of 1985) are not absolute ban on public assemblies but a restriction that simply regulates the time, place and manner of the assemblies. The Court referred to it as content-neutral regulation.

¥say

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.

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

Benevolent Neutrality—recognizes that government must pursue its secular goals and interest but at the same time strive to uphold religious liberty to the greatest extent possible within flexible constitutional limits. Thus, although the morality contemplated by laws is secular, benevolent neutrality could allow for accommodation 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 of 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 necessary 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 Philippine flag on account of their religious freedom.

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Ecclesiastical Affair—it involves the relationship between the church and its members and relates to matters of faith, religious doctrines, worship and governance of the congregation to which the state cannot meddle.

¥say

2. Freedom of Religious Belief and Worship Dual aspect of Freedom of Religious Belief and Worship: a. Freedom to believe—absolute as long as the belief is confined within the realm of thought; and b. Freedom to act on one’s belief—subject to regulation where the belief is translated into external acts that affect the public welfare.

Iglesia ni Cristo vs. CA, 259 SCRA 529, the INC’s postulate that its religious freedom is per se beyond review of the MTRCB should be rejected. Its public broadcast on TV of its religious programs brings it out of the bosom of internal belief. 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 policy 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Religious Tests The constitutional prohibition against religious tests is aimed against clandestine attempts on the part of the government to prevent a person from exercising his 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 law 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 individual’s liberty as safeguarded in general terms by the due process clause. Liberty under that clause includes the right to choose one’s residence, to leave it whenever he pleases, and to travel where he wills.

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Taruc vs. Bishop Dela Cruz, G.R. No. 144801, March 10, 2005, expulsion/excommunication 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 authorities 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.

¥say

continues to be a volatile area of concern in our society today. “For sure, we shall continue to subject any act pinching the space for the free exercise of religion 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, the State should not stand still.”

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

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 the travel of citizens to hostile countries to prevent possible international misunderstanding and conflict. Section 26 of HAS of 2007—cases where evidence of guilt is not strong, and the person charged with the crime of terrorism as therein defined is entitled to bail and if granted the same, the court, upon application by the prosecutor, shall limit the right to travel of the accused to within the municipality or city where he resides or where the case is pending, in the interest of national security and public safety.

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Rubi vs. Board of Mindoro, 39 Phil 660, the respondents were justified in requiring 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.

¥say

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 admittedly 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 citizens—to change their domicile from Manila to another locality.

Sec. 7, Article III The right of the people to information on matters of public concerned shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizens, subject 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Recognized restrictions: 1. National security matters and intelligence information—this jurisdiction recognizes the common law holding that there is a governmental privilege against public disclosure with respect to state secrets regarding military, diplomatic and other national security matters;

¥say

government so he can express his views thereon knowledgeably and intelligently. One cannot question the extravagance of the government, for example, if is denied examination of official vouchers. A citizen may not expose anomaly if those responsible 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 only at what is being done by public functionaries and to base his views and conclusions on mere rumors, half-truths, conjectures and even canards.

8293 and other related laws and banking transactions—pursuant to the Secrecy of Bank Deposits Act, RA 1405); 3. Criminal matters, such as those relating to the apprehension, the prosecution

and the detention of criminals, which courts may not inquire into prior to such arrest, detention and prosecution; and 4. Other confidential information. The Ethical Standards Act further prohibits

public officials and employees from using or divulging “confidential or classified information to the public.” [Section 7 (c), RA 6713] Other acknowledged limitations to information access include diplomatic correspondence, closed door Cabinet meetings and executive sessions of either House of congress, as 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

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2. Trade or industrial secrets—(pursuant to the Intellectual Property Code, RA

BA-RA 7941 vs. COMELEC, G.R. Nos. 177271 and 177314, May 4, 2007, the right to information is a public right where the real parties in interest are the public, or the citizens to be precise. The people’s 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 involving “public interest’ and is subject to reasonable conditions prescribed by law. Valmonte vs. Belmonte, Jr., 170 SCRa 256—the 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 Batasan Pambansa 93

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

Sec. 8, Article III The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged. Right to Form associations—shall not be impaired without due process of law; guarantees the right not to join an association. (Sta. Clara Homeowners Association vs. 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, interests or objectives is guaranteed by this provision. It also expressly guarantees to 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 present is that the ‘terms and conditions of employment in the Government, including any political subdivision or instrumentality thereof are governed by law.’ x x x. Since the terms and conditions of government employment are fixed by law, government workers cannot 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 voluntary basis. x x x In government employment, however, it is the legislature and, where properly given delegated power, the administrative heads of government 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)

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Legaspi vs. Civil Service Commission, the SC affirmed the right of the petitioner 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.

¥say

belonging to the opposition were able to secure ‘clean’ loans from the GSIS immediately 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 GSIS and the public office held by the alleged borrowers make the information sought clearly a matter of public interest and concern.

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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

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 or in concerted and unauthorized stoppage of work; that the right of government employees to organize is limited to the formation of unions or associations, without 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 liberties. 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.

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not penalized for the exercise of their right to assemble peacefully and to petition the government for a redress of grievances. Rather, the Civil Service Commission found them guilty of conduct prejudicial to the best interest of the service for having absented themselves without proper authority, from their school during regular school days, in order to participate in the mass protest, their absence ineluctably resulting in the nonholding of classes and in the deprivation of students of education, for which they were responsible. Had petitioners availed themselves of their free time—recess, after classes, weekends or holidays—to dramatize their grievances and to dialogue with the proper authorities within the bounds of law, no one—not the DECS, the CSC or even the SC—could have held them liable for the valid exercise of their constitutionally guaranteed rights. As it was, the temporary stoppage of classes resulting from their activity necessarily disrupted public services, the very evil sought to be forestalled by the prohibition against strikes by government workers. Their act by their nature was enjoined by the Civil Service Law, rules and regulations, for which they must, therefore, be made answerable.

¥say

Ma. Luisa Angeles Ramos

The freedom to contract is not absolute; all contracts and all rights are subject to the police power of the State and not only may regulations which affect 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 require, or the circumstances may change, or as experience may demonstrate the necessity. The purpose of the impairment clause is to safeguard the integrity of valid contractual agreements against unwarranted interference by the State. As a rule, they should be respected by the legislature and not tampered with by subsequent laws that will change the intention of the parties or modify their rights and obligations. The will of 95

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

Impairment—anything that diminishes the efficacy of a contract There is impairment when there is change in the terms of a legal contract between 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, January 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 country’s forests cannot be considered contracts that would bind the Government regardless of changes in policy and the demands of public interest and welfare. Since timber licenses are not contracts, the non-impairment clause cannot be invoked. Sec. 11, Article III Free access to the courts and quasi-judicial bodies and adequate legal assistance 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 favor 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 are also private legal assistance organizations now functioning for the benefit of penurious clients who otherwise might be unable to resort to the courts of justice because only of their misfortune of being poor. This provision makes them the equal of the rich before the law. Sec. 12, Article III (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have a

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Limitations: 1. Police power—prevails over contracts; 2. Eminent domain—may impair obligation of contracts; and 3. Taxation—cannot impair obligation of contracts.

¥say

the obligor and the obligee must be observed; the obligation of their contract must not be impaired. However, the protection of the impairment clause is not absolute. There are instances when contracts valid at the time of their conclusion may become invalid, or some of their provisions may be rendered inoperative or illegal, by virtue of supervening legislation.

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competent and independent counsel preferably of his own choice. If the person cannot 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, solitary, incommunicado, or other similar forms of detention are prohibited. (3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. (4) The law shall provide for penal and civil sanctions for violations of this section as well as compensation to and rehabilitation of victims of torture or similar practices, and their families.

¥say

Ma. Luisa Angeles Ramos

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 taken into custody or otherwise deprived of his freedom of action in any significant way. It shall include the practice of issuing “invitation” to a person who is investigated in connection with an offense he is suspected to have committed, without prejudice to the liability of the “inviting” officer for any violation of the law. (RA 7438) People vs. Lugod, G.R. No. 136253, February 21, 2001, the accused should have been entitled to Miranda rights, because even assuming that he was not yet under interrogation at the time he was brought to the police station, his confession was elicited by a police officer who promised to help him if he told the truth. Furthermore, 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 benefit of counsel and not having been informed of his rights, the confession is inadmissible.

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Rights of an Accused under Custodial Investigation Exist only in custodial interrogation

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 demonstrates the use of 97

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

procedural safeguards effective to secure the privilege against self-incriminations. By custodial interrogation, it means questioning initiated by law enforcement 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 to be employed, unless other fully effective means are devised to informed accused-persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has the right to remain silent, that any statement he 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 effectuations 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 manner 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 statements 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 consents to be questioned.

¥say

Ma. Luisa Angeles Ramos

People vs. Baloloy, G.R. No. 140740, April 12, 2002, it was held that this guarantee does not apply to spontaneous statement, not elicited through questioning by the authorities but given in an ordinary manner whereby the suspect orally admitted having committed the offense. Neither can it apply to admissions or confessions made by a suspect before he was placed under custodial investigation. In this case, the narration before the Barangay Captain prior to custodial investigation was admissible in evidence, but not the admissions made before Judge Dicon, inasmuch as the questioning by the judge was done after the suspect had been arrested and such questioning already constituted custodial investigation. Rights guaranteed: 1. Right to remain silent; 2. Right to have a competent and independent counsel preferably of his own choice at all stages of the investigation;

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Applies only from the moment the investigating officer begins to ask questions for the purpose of eliciting admissions, confessions or any information from the accused.

Independent and competent counsel—willing to safeguard the constitutional rights of 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 recognize 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; it 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

5. No torture, force, etc. which vitiate free will shall be used;

Factors in Resolving the Admissibility of and Relying on Out-of-Court Identification 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.

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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 certain 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 already under custodial investigation. 2. Mug shots—where photographs are shown to the witness to identify the suspect; and 3. Police Line ups—where a witness identifies the suspect from a group of persons lined up for the purpose. It is not considered a part of any custodial 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 witness or the complainant who is interrogated and who gives a statement in the course of the line-up (People vs. Amestuzo, July 12, 2001).

¥say

6. Secret detention places are prohibited; and 7. Confession/admissions obtained in violation of rights are inadmissible in evidence.

Two (2) kinds of Involuntary or Coerced Confessions: 1. Those which are the product of 3rd degree methods such as torture, force, violence, threat, intimidation, which are dealt with in paragraph 2 of Section 12; and 2. Those which are given without the benefit of Miranda warnings. Extrajudicial Confessions—are presumed voluntary, and, in the absence of conclusive evidence showing the declarant’s consent in executing the same has 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

3. Express; and 4. In writing.

Ladiana vs. People, G.R. No. 144293, December 24, 2002, the counter-affidavit submitted by the respondent during preliminary investigation is admissible because preliminary investigation is not part of custodial investigation. The interrogation by the police, if any would already have been ended at the time of the filing of the criminal case in court or in the public prosecutor’s office. Spontaneous statements—those elicited through questioning by law enforcement officers, but given in an ordinary manner where the appellant verbally admits to having 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 proving that there was a valid waiver rests on the prosecution. The presumption of official duty has been regularly performed cannot prevail over the presumption of innocence.

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However, in the case of People vs. Salonga, G.R. No. 131131, June 21, 2001, after an audit, the accused was summoned to appear before the Assistant Accountant of MetroBank and, in the course of the interview, accused admitted having issued the subject cashier’s checks without any legitimate transaction, the written confession was held admissible in evidence inasmuch as the interview did not constitute custodial investigation.

¥say

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

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 III shall be inadmissible in evidence. Fruit of the poisonous tree—once 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Right to Bail Bail—the security given for the release of a person in custody of the law, furnished 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 if 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 bail before conviction if it is a matter of right. The remedy is to increase the amount 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.

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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 sufficient sureties, or be released or recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required.

¥say

evidence because the originally obtained evidence taints all evidence subsequently obtained.

Bail as a matter of right— All persons in custody shall be admitted to bail as a matter of right, with sufficient sureties, or be released on recognizance as prescribed by law: 101

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2. The court, in its discretion, may allow the accused to continue on provisional

liberty after the same bail bond during the period to appeal subject to the consent of the bondsman. 3. If the court imposed a penalty of imprisonment exceeding 6 years but not more than 20 years, the accused shall be denied bail, or his bail previously granted shall be cancelled, upon showing by the following or other similar circumstances: 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 justification; 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 accused may commit another crime. Whether bail is a matter of right or discretion—reasonable notice of hearing is required to be given to the prosecutor, or at least he must be asked for his recommendation, because in fixing the amount of bail, the judge is required to take into account a number of factors.

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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.

¥say

1. Before or after conviction by the MTC; and 2. Before conviction by the RTC of an offense not punishable by death, reclusion perpetua or life imprisonment. 3. The evidence of guilt is not strong.

When bail shall be denied—  No person, regardless of the stage of the criminal prosecution, shall be admitted 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 determine whether or not the evidence of guilt is strong. 102

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 Without a hearing, the judge could not possibly asses the weight of the evidence against the accused before granting the latter’s application for bail.

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 account. The proof against him must not be permitted to sway judgment and the presumption 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

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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 the 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, to 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 production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable.

¥say

(See the cases of Government of USA vs. Hon. Purganan and Government of Hongkong vs. Judge Olalia)

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 against 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

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Description, not designation, of the offense is controlling.

Estrada vs. Sandiganbayan, G.R. No. 148560, November 19, 2001, every legislative measure is presumed constitutional. Petitioner failed to discharge the burden to overcome the presumption of constitutionality. 5. Right to speedy, impartial and public trial—

¥say

Void-for-Vagueness Rule—the accused is denied the right to be informed of the charge 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 ordinary intelligence to determine therefrom what acts or omissions are punished and, hence, shall be avoided.

6. Right to meet witness face to face— Witnesses not submitted for cross-examination are not admissible as evidence. However, 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 full comprehension of the consequences thereof; 2. Presentation of evidence to prove the guilt of the accused and the precise degree 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.

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Impartial—the judge must not be bias and not motivated by malice or bad faith

Sec. 15, Article III The privilege of the writ of habeas corpus shall not be suspended except in cases 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Sec. 16, Article III All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies. Enriquez vs. Office of the Ombudsman, G.R. No. 174902-06, February 15, 2008, this right, like the right to a speedy trial, is deemed violated when the proceedings are attended by vexatious, capricious, and oppressive delays. The concept of speedy disposition of cases is relative or flexible. A simple mathematical computation of the time involved is insufficient. The facts and circumstances peculiar to each case must be examined. In ascertaining whether the right 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)

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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 restrictive custody and monitoring of movements or whereabouts of police officers under investigation by their superiors is not a form of illegal detention or restraint of liberty. (SP02 Manalo vs. PNP Chief Calderon, G.R. No. 178920, October 15, 2007)

¥say

Writ of habeas corpus— A writ issued by the court directed to a person detaining another, commanding him 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 whatever court or judge awarding writ shall consider in his behalf. It lies only where the restraint of a person’s liberty has been judicially adjudged to be illegal or unlawful.

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

Sec. 18, Article III (1) No person shall be detained solely by reason of his political beliefs and aspirations. (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, and 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.

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Two (2) types of Immunity Statutes: 1. Transactional Immunity Statute—testimony of any person or whose possession of documents or other evidence necessary or convenient to determine the truth in any investigation conducted is immune from criminal prosecution for an offense to which such compelled testimony relates; and 2. Use Immunity Statute—prohibits the use of a witness’ compelled testimony and its fruits in any manner in connection with the criminal prosecution of the witness.

¥say

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 documents, papers and chattels in court except when books of account are to be examined in exercise of power of taxation and police power.

Sec. 19, Article III (1) Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment 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, Bernas, 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.

Sec. 20, Article III No person shall be imprisoned for debt or non-payment of a poll tax. Coverage: 1. Debt—any civil obligation arising from contract 2. Poll tax—a specific sum levied upon any person belonging to a certain class without regard to property or occupation. A tax is not a debt since it is an obligation arising from law hence, its non-payment 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 either 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 dismissed or otherwise terminated without his express consent.

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Prohibited Punishments Mere severity does not constitute cruel or unusual punishment. To violate constitutional guarantee, penalty must be flagrant and plainly oppressive, disproportionate to nature of offense as to shock senses of community.

¥say

(2) The employment of physical, psychological, or degrading punishment against any prisoner or detainee or the use of substandard or inadequate penal facilities under subhuman conditions shall be dealt with by law.

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

General Rule: Dismissal of action, when made at the instance of the accused, does 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 right 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 Event—prosecution for another offense if subsequent development changes the character of the first indictment under which he may have already been charged or convicted. Conviction of accused shall not bar another prosecution for an offense which necessarily 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 filing of former complaint or information; and 3. Plea of guilty to lesser offense was made without the consent of prosecutor or offended party.

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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 of the accused.

¥say

information, or is an attempt to commit the same or is a frustration thereof.

Cabo vs. Sandiganbayan, G.R. No. 169509, June 16, 2006, for double jeopardy to attach, the case against the accused must have been dismissed or otherwise terminated without his express consent by a court of competent jurisdiction, upon a valid information sufficient in form and substance and the accused pleaded to the said charge. 108

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

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 against the passage of the ex post facto law. This is because the ex post facto law, like the law impairing the obligation of the contracts, operates retroactively to affect antecedent acts. A law can never be considered ex post facto as long as it operates prospectively since its structures would cover only offenses committed after and not before its enactment. Basically, an ex post facto law is one 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 testimony 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 entitled, such a protection of a former conviction or acquittal, or of a proclamation of amnesty.

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

¥say

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 on 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 process.

109

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

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 is only when a statute applies either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without judicial trial that it becomes a bill of attainder.

Article IV CITIZENSHIP Citizenship- is membership in a political community which is personal and more or less permanent in character.

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In the case of US vs. Gomez Colonel, 12 Phil 279, an information for adultery filed 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 complaint of the offended spouse. It was held that the amendatory law permitting the prosecutor to initiate the charge was ex post facto.

¥say

Characteristics: 1. It refers to criminal matters; 2. It is retroactive in application; and 3. It works to the prejudice of the accused.

Nationality- is membership in any class or form of political community. Thus, nationals may be citizens [if member of a democratic community] or subjects [if members of a monarchial community]. It does not necessarily include 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

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 subjects on April 11, 1899, and residing in the islands who did not declare their intention of preserving Spanish nationality between said date and October 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 recognized as such today, not because of the application of the jus soli principle, but principally because of the doctrine of res judicata.

B. After the adoption of the 1935 Constitution: Only the Jus Sanguinis doctrine. 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 this Constitution; (February 2, 1987) 2. Those whose fathers or mothers are citizens of the Philippines; (jus sanguinis) 3. Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority; 4. Those who are naturalized in accordance with law.

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The Philippine law on citizenship adheres to the principle of JUS SANGUINIS. Thereunder, a child follows the nationality or citizenship of the parents regardless of the place of his birth, as opposed to the doctrine of JUS SOLI which determines the nationality or citizenship on the basis of place of birth. (Valles vs. COMELEC, 337 SCRA 543)

¥say

ii. Jus soli-by birth b. By Naturalization c. By Marriage

Section 2, Article IV— Natural-born citizens are those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their 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 Telesforo Ybasco, a Filipino citizen and native of Daet, Camarines Norte, and Theresa Marquez, 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

The signing into law of the 1935 Constitution has established the principle of jus sanguinis as basis for the acquisition of Philippine citizenship xxx. This principle 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, having 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 the principle of jus soli, then at most, private respondent can also claim Australian citizenship resulting to her possession of dual citizenship. (Valles vs. COMELEC, 337 SCRA 543, August 9, 2000) Maria Jeanette Tecson vs. COMELEC, G.R. No. 161434, March 3, 2004 (on the controversy surrounding the citizenship of FPJ) –The Court took note of the fact that Lorenzo 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 Spanish rule, and that San Carlos, pangasinan, his place of residence upon his death in 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 masse Filipinization” that the Philippine Bill of 1902 effected. That Filipino citizenship of Lorenzo Pou, if acquired, would thereby extend to his son, Allan F. Poe (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 whether such children are legitimate or illegitimate.

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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 subjects on April 11, 1899 and resided therein including their children are deemed to be Philippine citizens. Private respondent’s father, Telesforo, was born on January 5, 1879 in Daet, Camarines Norte, a fact duly evidenced by a certified true 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 citizen. By virtue of the same laws, which were the law in force at the time of her birth, Rosalind Ybasco Lopez is likewise a citizen of the Philippines.

¥say

Historically, she was born a year before the 1935 Constitution took into effect and at that time, what served as the Constitution of the Philippines were the organic acts by which the US governed the country. These were the Philippine Bill of July 1, 1902 and the Philippine Autonomy Act of August 29, 1916, also known as the Jones Law.

Marriage by Filipino to an alien: “Citizens of the Philippines who marry aliens shall retain their citizenship, unless by their act or omission they are deemed, under the law, to have renounced it” [Sec.4, Art. IV]. 112

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

The span of 14 years that lapsed from the time he reached 21 until he finally expressed 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 and he need not elect Philippine citizenship. )

Caram provision. Those born in the Philippines of foreign parents who, before the adoption of the 1935 Constitution, had been elected to public office in the Islands 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. Provision is prospective in application; to benefit only those born on or after January 17, 1973 (date of effectivity of 1973 Constitution).  If born before January 17, 1973, of Filipino mothers, the person must elect Philippine citizenship upon reaching the age of majority. [Within reasonable time=3 years except when there is justifiable reason to delay]

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Re: Application for Admission to the Philippine Bar, Vicente D. Ching, Bar Matter 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 years after he had reached the age of majority. By any reasonable yardstick, Ching’s 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 citizenship 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 Lawyer’s 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 that the election should be made within a “reasonable time” after attaining the age of majority. 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 there is justifiable reason to delay.

¥say

Ma. Luisa Angeles Ramos

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 Oath of Allegiance to the Constitution and the Government of the Philippines [Sec. 1, CA 625]. Those whose fathers or mothers are citizens of the Philippines—Prospective application, consistent with the 1973 Constitution. 113

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

Naturalized citizens are those who have become Filipino citizens through naturalization, generally under CA No. 473, otherwise known as the Revised 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 qualifications and none of the disqualifications provided by law to become a Filipino citizen. The decision granting Philippine citizenship becomes executor only after 2 years from its promulgation when the court is satisfied that 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 government promulgated rules; or 4. Has not committed any act prejudicial to the interest of the nation or contrary 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 petition; 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 school not established for the exclusive instruction of persons of a particular nationality or race) or in any of the branches of education or industry for a period of not less than 2 year; or

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The constitutional and statutory requirements of electing Filipino citizenship apply only to legitimate children. In Republic vs. Chule Lim, G.R. No. 153883, January 13, 2004, it was held that the respondent, who was concededly an illegitimate child considering that her Chinese father and Filipino mother were never married, is not required to comply with said constitutional and statutory requirements. Being an illegitimate child of a Filipino mother, respondent became a Filipino upon birth. Record shows that respondent elected Filipino citizenship when she reached the age of majority. She registered as a voter in Misamis Oriental when she was 18 years old. The exercise of the right of suffrage and the participation in election exercises constitute a positive act of electing Philippine citizenship.

¥say

The right to elect Philippine citizenship is an inchoate right; during his minority, the child is an alien [Villahermosa vs. Commissioner of Immigration 80 Phil. 541].

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

4. 5. 6.

Disqualifications: 1. Those opposed to organized government or affiliated with any association or group of persons who uphold and teach doctrines opposing all organized governments; 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, during the period of such war; 8. Those citizens or subjects of a foreign country whose laws do not grant Filipinos the right to become naturalized citizens or subjects thereof.

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3.

e. He was born in the Philippines He must be of GMC and believes in the principles underlying the Philippine Constitution, and must have conducted himself in a proper and irreproachable manner 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 living; He must own real estate in the Philippines worth not less than P5,000.00, Philippine currency, or must have some known lucrative trade, profession or lawful occupation; He must be able to write and speak English or Spanish and any of the principal languages; and 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 Philippines where Philippine history, government and civic are taught or prescribed as part of the school curriculum, during the entire period of the residence in the Philippines required of him prior to the hearing of his petition for naturalization as Filipino citizen. (Bengzon III vs. HRET, G.R. No. 142840, may 7, 2001)

¥say

Ma. Luisa Angeles Ramos

Procedure: 1. Filing of declaration of intention- 1 year prior to the filing of the Petition with the OSG Persons exempt from filing declaration of intention: a. Those born in the Philippines and received their primary and secondary education in public or private schools recognized by the Government and not limited to any race or nationality; 115

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

2. Filing of the Petition, accompanied by the affidavit of 2 credible persons, citizens of the Philippines, who personally know the petitioner, as character witness; 3. Publication of the Petition in the O.G. or in a newspaper of general circulation

once a week for 3 consecutive weeks. Failure to comply is fatal. (Po Yo Bi vs. Republic, 205 SCRA 400)

¥say

b. Those resided in the Philippines for 30 years or more before the filing of the 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.

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 to 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 Naturalization Law of 2000—grants Philippine citizenship to aliens born and residing in the Philippines e. Special act of legislature- this is discretionary on Congress; usually conferred 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 where they are born

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4. Actual residence in the Philippines during the entire proceedings.

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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

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 persons. A naturalization proceeding is nota judicial adversary proceeding, and the decision rendered therein does not constitute res judicata. A certificate of naturalization may be cancelled if it is subsequently discovered that the applicant obtained it by misleadintg the court upon any material fact. RA 9139—not 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 country and all along thought that they were Filipinos; who have demonstrated love and loyalty to the Philippines, and affinity to the customs and traditions of the Filipinos. Naturalization Repatriation -mode for both acquisition and -mode for reacquisition for those who lost reacquisition of citizenship their citizenship -governed by CA 473 (for acquisition) and -governed by various statutes CA 63 (for reacquisition) -consists a lengthy process -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 need not

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Edison So vs. RP, G.R. No. 170603, January 29, 2007—Naturalization signifies the act of formally adopting a foreigner into the political body of a nation by clothing him or her with privileges of a citizen. Under current and existing laws, there 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 amended—covers all aliens regardless of class; and c. Legislative naturalization in the form of a law enacted by Congress bestowing Philippine citizenship to an alien.

¥say

Ma. Luisa Angeles Ramos

go through the naturalization process; if she doesn’t suffer from any disqualification, no need to prove the qualifications)

2. Minor children born in the Philippines before the naturalization shall be considered citizens of the Philippines; 3. Minor children born outside the Philippines who were residing in the Philippines at the time of naturalization shall be considered Filipino citizens. 4. Minor children born outside the Philippines before parent’s naturalization shall be considered Filipino citizens only during minority, unless they begin to reside permanently in the Philippines; 5. Child born outside the Philippines after parent’s naturalization shall be 117

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

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 2year 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, denaturalization shall divest the wife and children of their derivative naturalization; 2. If the ground was personal to the denaturalized person, his wife and children shall retain their Philippine citizenship. Policy against Dual Allegiance: “Dual allegiance of citizens is inimical to the national 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 understood as referring to “dual allegiance”. Consequently, persons with mere dual citizenship 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 condition is the unavoidable consequence of conflicting laws of different states.

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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;

¥say

considered Filipino citizen, provided that he registers as such before any Philippine consulate within one year after attaining majority age, and takes his oath of allegiance.

By electing Philippine citizenship, such candidates at the same time, forswear allegiance to the other country of which they are also citizens and thereby terminate their status as dual citizens. It may be that, from the point of view of the foreign state 118

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

Section 5, Article IV—Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law. This section is not a self-executing law. It needs an implementing law. Section 40 (d), LGC—Disqualifications.—The following persons are disqualified from running from any elective local election: xxx (d) Those with dual citizenship. x x x. The provision prohibits dual citizenship but the Supreme Court ruled that it refers to prohibition on dual allegiance. Doctrine of INDELIBLE ALLEGIANCE: an individual may be compelled to retain his original nationality even if he has already renounced or forfeited it under the laws of the second State whose nationality he has acquired. Dual Citizenship 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 states involuntary

Dual Allegiance refers to a situation in which a person simultaneously owes, by some positive act, loyalty to 2 or more states

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and of its laws, such an individual has not effectively renounced his foreign citizenship. That is of no moment. The filing of a COC suffices to renounce foreign citizenship, effectively removing any disqualification as dual citizen. This is so because in the COC, one declares that he is a Filipino citizen and that he will support and defend the Constitution and will maintain true faith and allegiance to the same. Such declaration under oath operates as an effective renunciation of foreign citizenship. In this case, the Court adopted the liberal interpretation of the rule. Manzano is not really prohibited 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 refers to dual allegiance under Section 5 of Article IV of the 1987 Constitution.[Mercado vs. Manzano, 307 SCRA 630, May 26, 1999]

¥say

Ma. Luisa Angeles Ramos

voluntary

Calilung vs. Datumanong, G.R. No. 160869, May 11, 2007, what RA 9225 does is allow dual citizenship to natural-born citizens who have lost their Philippine citizenship by reason of their naturalization as citizens of a foreign country. On its face, it does not recognize dual allegiance. By swearing to the supreme authority of the Republic, the person implicitly renounces its foreign citizenship. Plainly, from Section 3, RA 9225 stayed clear out of the problem of dual allegiance and shifted the burden of confronting 119

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

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 person’s citizenship be raised as a material issue in a controversy where said person is a party; 2. The Solicitor general or his authorized representative took active part in the 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 foreclose the weight of prior rulings on citizenship. It elucidated that reliance may somehow be placed on these antecedent official findings, though not 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 9225—An Act Making the Citizenship of Philippine Citizens Who Acquire Foreign Citizenship Permanent— September 15, 2003 which declares the policy of the State that all Philippine citizens who become citizens of another country shall be deemed to have lost their Philippine citizenship under 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

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Instances when a citizen of the Philippines may possess dual citizenship: 1. Those born of Filipino fathers and/or mothers in foreign countries which follow the principle of jus soli; 2. Those born in the Philippines of Filipino mothers and alien fathers if by the laws of their father’s country such children are citizens of that country; 3. Those who marry aliens if by the laws of the latter’s country the former are considered citizens, unless by their act or omission they are deemed to have renounced Philippine citizenship. [Mercado vs. Manzano, 307 SCRA 630, May 26, 1999]

¥say

the issue of whether or not there is dual allegiance to the concerned foreign country. What happens to the other citizenship was not made a concern of RA 9225.

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

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 conditions: 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 qualifications, 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 proper 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 expressly renounced allegiance to the Philippines when he applied for Australian citizenship.

 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 not constitute effective renunciation. (Valles vs. COMELEC)  In Willie Yu vs. Defensor-Santiago, 169 SCRA 364, obtaining a

Portuguese passport and signing commercial documents as a Portuguese were construed as renunciation 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 Filipino may not divest himself of Philippine citizenship in this manner while RP is at war with any country. –an application of the principle of Indelible Allegiance.—by virtue of RA 9225

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

¥say

Ma. Luisa Angeles Ramos

4. By rendering service to or accepting commission in the armed forces of a foreign 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

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 Filipino 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 Filipino 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 persons entitled to repatriation under RA 8171 are the following: a) Filipino women who lost their Philippine citizenship by marriage to aliens; and b) Natural-born Filipinos including their minor children who lost their Philippine citizenship on account of political or economic necessity.

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B. Reacquisition of citizenship: 1. Under RA 9225, by taking an oath of allegiance 2. By naturalization 3. By repatriation 4. By direct act of Congress

¥say

Philippine armed forces in time of war UNLESS subsequently, a plenary pardon or amnesty has been granted.

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

¥say

Ma. Luisa Angeles Ramos

Section 1 Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified 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 propose to vote for at least six months immediately preceding the election. No literacy, property, or other substantive requirement shall be imposed on the exercise 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 promulgate to protect the secrecy of the ballot.

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Article V SUFFRAGE

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

Kinds: 1. REGULAR ELECTION—refers to an election participated in by those who possess 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 subdivisions thereof, after expiration of full term of the former members.

¥say

ELECTION—is the embodiment of the popular will, the expression of the sovereign power of the people. It is the means by which the people choose their officials for a definite and fixed period and to whom they entrust for the time being the exercise of the powers of government.

a. National Election—

Paras vs. COMELEC, G.R. No. 123169, November 4, 1996, the SK Election is not a regular 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 local or national elective officials. b. Local Elections—

i. For Members of HOR— ii. Party-List Representatives— iii. Provincial Officials— Every 3 years from the nd 2 iv. City Officials— Monday of May 1992 v. Municipal Officials— c. Barangay Elections—every 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 Assemblymen— 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

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i. for President and VP—every 6 years ii. for Senators—every 3 years

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

2. SPECIAL ELECTION—when 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 office before the expiration of the full term for which the incumbent was elected.

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

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approved or rejected by the people. b. Initiative—power of the people to propose amendments to the Constitution or to propose and enact legislations through election called for the purpose i. Initiative on the Constitution ii. Initiative on Statutes iii. Initiative on Local Legislation c. Referendum—power 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. Recall—mode of removal of an elective public officer by the people before the end of his term of office

¥say

a. Plebiscite—electoral process by which an initiative on the Constitution is

COMMISSION ON ELECTION (COMELEC) The COMELEC is an independent constitutional body charged with the exclusive power to administer and enforce laws and regulations relative to the conduct of elections and other political exercises, such as plebiscites, initiatives, referenda and recalls.

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

Decisions, final orders, or ruling of the COMELEC on election contests involving elective municipal and barangay offices shall be final and executory, and not appealable. 3. Decide, except those involving the right to vote, all questions affecting elections, including determination of the number and location of polling places, appointment of election officials and inspectors, and registration of voters. 4. Deputize, with the concurrence of the President, law enforcement agencies and instrumentalities of the government, including the AFP for the exclusive purpose 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, prosecute cases for violations of election laws, including acts or omissions constituting election frauds, offenses and malpractices. 7. Recommend to Congress effective measures to minimize election spending, including limitation of places where propaganda materials shall be posted, and to prevent and penalize all forms of election frauds, offenses, malpractices, and nuisance candidacies.

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Powers and Functions: 1. Enforce and administer all laws and regulations relative to the conduct of an 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 jurisdiction ii. Elective barangay officials decided by the trial courts of limited jurisdiction

¥say

The periodic political exercises give meaning to the declaration in the Constitution that, “sovereignty resides in the people and all government authority emanates from them.”

126

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

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 election 4. Resident of the city/municipality wherein he proposes to vote for at 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.

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

¥say

8. Recommend to the President the removal of any officer or employee it has deputized, or the imposition of any other disciplinary action, for violation or disregard of, or disobedience to it. 9. Submit to the President and Congress a comprehensive report on the conduct of each election, plebiscites, initiative, referendum, or recall.

Aquino vs. COMELEC, 248 SCRA 400, the meaning and purpose of residency requirement—the place where a party actually or constructively has his permanent home, where he, no matter where he may be found at any given time, eventually intends to return 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

REGISTRATION— It refers to the act of accomplishing and filing a sworn application for registration by a qualified voter before the election officer of the city or municipality wherein he resides and including the same in the book of registered voters upon 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

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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)

¥say

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 not 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.

Phil 380)

Voter’s Registration Act of 1996 (RA 8189)—General Registration of Voters Continuing Registration—the personal filing of application of registration of voters 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Petition for Inclusion (Sec. 34, RA 8189) and Exclusion (Sec. 35, RA 8189) of Voters in the List 1. Jurisdiction a. MTC—original and exclusive b. RTC—appellate jurisdiction c. SC—appellate jurisdiction over RTC on question of law 2. Petitioner a. Inclusion  Private person whose application was disapproved by the ERB or whose name was stricken 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. Inclusion—any day except 105 days before regular election or 75 days before a special election b. Exclusion—anytime except 100 days before a regular election or 65 days before a special election

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In the case of Akbayan Youth vs. COMELEC, G.R. No. 147066, March 26, 2001, the SC upheld the COMELEC’s denial of the request for two (2) additional registration days in order to enfranchise more than 4 million youth who failed 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 operation, implementation and application of law is accorded great weight, considering that these specialized government bodies are, by their nature and functions, in the best position to know what they can possibly do or not do under prevailing circumstances.

¥say

Ma. Luisa Angeles Ramos

Annulment of Book of Voters— 1. Upon verified complaint of any voter, election officer or registered political 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 fraud, bribery, forgery, impersonation, intimidation, force or other similar irregularity 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Absentee Voting—process by which qualified citizens of the Philippines abroad exercise their right to vote pursuant to the constitutional mandate that Congress 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 Voter—citizens of the Philippines who is qualified to register and 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 disqualified by law at least 18 years of age on the day of elections, may vote for President, 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, including those who have committed and been found guilty of disloyalty, such disability not having been removed by plenary pardon or amnesty. Provided however, that any person disqualified to vote under this subsection shall automatically acquire 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

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Overseas Absentee Voting Act of 2003 (RA 9189)

¥say

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

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

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 winning candidates, it is unconstitutional as it is repugnant to Section 4 of Article VII of the Constitution, which vest in Congress the authority to proclaim the winning Presidential or Vice-Presidential candidates. CANDIDATES—

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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 seafarers; c. Where voting by mail is allowed, the applicant’s mailing address outside the Philippines; and d. Name and address of applicant’s 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 residence in the Philippines not later than 3 years after approval of his registration.

¥say

COMELEC declaring that he shall resume actual physical residence not later than 3 years from approval of his registration. Such affidavit shall also state that he has not applied for citizenship in another country; and 5. Any citizen of the Philippines abroad previously declared insane or incompetent by competent authority in the Philippines or abroad, as verified by Philippine embassies, consulate or foreign service establishment concerned.

QUALIFICATIONS—continuing requirements and must be possessed for the duration of the officer’s active tenure. Once any of the required qualification is lost, his title 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

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 implementation of the sentence. Thus, the disqualification still subsists. Removal of DQ: plenary pardon, amnesty, lapse of 5 years after service of sentence 3. A permanent resident to or immigrant to a foreign country unless he waives such status (OEC, Sections 12 and 68) In the case of Caasi vs. COMELEC, 191 SCRA 229, the SC said that a “green card” is ample 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.

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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 of 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 relates to and affects the good moral character of the person.

¥say

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

In Pangkat Laguna vs. COMELEC, G.R. No. 148075, February 4, 2002, the acts of Laguna Governor Lazaro in ordering the purchase of trophies, basketballs, volleyballs, chessboard sets, and the distribution of medals and pins to various schools, did not constitute a violation of Section 80 on premature campaigning. Respondent Lazaro was not in any way directly or indirectly soliciting votes; she was merely

132

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

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 office by the Sangguniang Panlalawigan, was disqualified, even as he alleged that the decision was not yet final because he had not yet received a copy of the decision, 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 the 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 avoid punishment, but likewise those who, after being charged, flee to avoid prosecution. In the case of Rodriguez vs. COMELEC, G.R. No. 120099, July 24, 1996, petitioner 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 months.

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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 voted for, the votes cast in his favor cannot be declared stray. To do so would amount 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 or an offense punishable by imprisonment for at least 1 year, within 2 years after service of sentence;

¥say

performing the duties and tasks imposed upon her by law, which duties she had sworn to perform as Governor of Laguna.

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

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 considered stray. The subsequent disqualification of a candidate who obtained the highest number of 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 than 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)

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Under the Lone Candidate Law (RA 8295) 1. Any elective officials who has resigned from his office by accepting an appointive 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, punishment, 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 or property that is meant to eliminate all other potential candidates.

¥say

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.

Effects of Filing COC:

134

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

Duty to receive COC: ministerial duty of the COMELEC When a candidate files his COC, the COMELEC has a ministerial duty to receive and acknowledge its receipt pursuant to Section 76, of the Election Code. The COMELEC may not, by itself, without the proper proceedings, deny due course to or cancel 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 defects 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 COC—Sec. 78 of the OEC 3. Filing of a disqualification case on any of the grounds enumerated in Section 68, OEC. Where the decision of the COMELEC disqualifying the candidate is not yet final and executory on election day, the Board of Election Inspectors (BEI), in the exercise 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)

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Formal defects in the COC—the election of a candidate cannot be annulled on the sole ground of formal defects in his COC, such as lack of the required oath. (De Guzman vs. Board of Canvassers, 48 Phil 211)

¥say

Candidates holding appointive office or position shall be considered ipso facto resigned from his office. (Sec. 66, OEC) Candidates holding elective office shall not be considered resigned from his office. (Sec. 67 of OEC repealed by Section 14 of RA 9006)

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, requires 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, Bernas, 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 position.

(Section 73,

The concept of a substitute presupposes the existence of the person to be substituted. For how can a person take the place of somebody who does not exist or who 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 seasonably 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. 136351, July 28, 1999) Doctrine of the Rejection of the Second Placer— Labo doctrine—the disqualification of the elected candidate does not entitle the candidate who obtained the 2nd highest number of votes to occupy the office vacated 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 candidate receiving majority votes does not entitle the eligible candidate receiving the next highest number of votes to be declared elected. To simplistically assume that the second placer would have received the other votes would be to substitute our judgment for the mind of the voter. The second placer is just that, a second placer. He lost in the election.

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Death, Disqualification and Withdrawal: If after the last day of filing of the COC, an official candidate of a registered 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)

¥say

OEC)

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 candidate’s disqualification so as to bring such awareness within the realm of notoriety but 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

The affidavit of withdrawal can be filed directly with the main office of the COMELEC, 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 which 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 similarity of the names of the registered candidates; 3. There are other circumstances which clearly demonstrate that the candidate has no bona fide intention to run for the office.

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Withdrawal of the COC—shall effect the disqualification of the candidate to be elected for the position. (Ycain vs. Caneja, 81 Phil 773) The withdrawal of the withdrawal, for the purpose of reviving the COC must be made within the period provided by law for the filing of COC. (Monsale vs. Nico, 83 Phil 758)

¥say

In Fr. Cayat vs. COMELEC, G.R. Nos. 163776 and 165736, April 24, 2007, the law expressly declares that a candidate disqualified by final judgment before an election 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 Law 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 Palileng is not a second-placer but the only placer. There is only one candidate.

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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Salcedo vs. COMELEC, G.R. No. 135886, August 16, 1999, material misrepresentation contemplated in Section 78, OEC refers to qualifications for elective office. Aside from that, false representation must consist of a deliberate attempt to mislead, misinform, or hide a fact which would otherwise render a candidate ineligible. It must be made with an intention to deceive the electorate as to one’s qualifications for public office. The use of surname, when not intended to mislead or deceive the public as to one’s 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 to fill a vacancy in an elective position other that for President and VP, when there is only one qualified candidate for such position, the lone candidate3 shall be proclaimed elected to the position by proper proclaiming body of the COMELEC without holding the special election upon certification by the COMELEC that he is the only candidate for the office and is thereby deemed elected. The lone candidate so proclaimed shall assume office not earlier than the scheduled election day, in the absence of any lawful ground to deny due course or cancel the COC in order to prevent such proclamation, as provided for under Section 69 and 78 of OEC.

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Petition to Deny Due Course to or Cancel COC (Sec. 78, OEC)—a verified petition seeking to deny due course or to cancel a COC may be field by any person exclusively 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 hearing, not later than 15 days before the election. Jurisdiction over a petition to cancel a COC lies with the COMELEC in division, not with the COMELEC en banc. (Garvida vs. Sales, G.R. No. 122872, September 10, 1997)

¥say

Ma. Luisa Angeles Ramos

Loong vs. COMELEC, 216 SCRA 760, the petition for cancellation of the COC of Loong for alleged misrepresentation as to his age, filed by Ututalum beyond the 25-day 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 certificate 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

CAMPAIGN Election and Campaign Periods (Sec. 3, OEC) Election period begins 90 days before the day of election and ends 30 days thereafter—period of time with respect to a scheduled date of election when the conduct of certain political activities are regulated by election laws, and the violation of which constitutes election offense subject to penalties. Campaign Periods: 1. President and VP—90 days before the day of election 2. Members of Congress, Senatorial, Provincial and City/Municipal—45 days 3. Barangay Election—15 days 4. Special Election—45 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 candidates can legally conduct campaign activities and other election propaganda in relation to the scheduled date of election.

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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. For if the law did not confine the choice or election by the voters to the duly registered candidates, there might be as many persons voted for as there are voters, and votes might be cast even for unknown or fictitious persons as a mark to identify the votes in favor of a candidate for another office in the same election. (Miranda vs. Abaya, G.R. No. 136351, July 28, 1999)

¥say

Ma. Luisa Angeles Ramos

Fair Election Act of 2001 (RA 9006) Lawful Election Propaganda 1. Written/printed materials which does not exceed 8 ½ inches x 14 inches 2. Handwritten/printed letters 3. Posters not exceeding 2x3 feet 4. Print ads 1/4 page in broadsheets and ½ page for tabloids published 3x a week per newspaper during 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

a. National positions—120 mins. for TV, 180 mins. for radio b. Local positions—60 mins. for TV, 90 mins. for radio

Limitation on Expenses Candidates: 1. President and VP—P10/voter 2. Other candidate with party—P3/voter 3. Other candidate without party—P5/voter Statement of Contribution and Expenses Every candidate and treasurer of a political party shall, within 30 days after the 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 9006—surveys affecting national candidates shall not be published within 15 days before an election and surveys affecting local candidates shall not be published 7 days before an election. This section was declared unconstitutional 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.

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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 actor or media personality who is himself a candidate. 3. Use of airtime for campaign of a media practitioner who is official of any party or member of the campaign staff of a candidate of political party.

¥say

(See the cases of PPI vs. COMELEC, G.R. No. 119694, May 22, 1995 and TELEBAP vs. COMELEC, G.R. No. 132922, April 21, 1998—page 45 of this review notes)—payment of just compensation is now expressly provided under Section 7 of RA 9006; payment of just compensation is not necessary since it is a valid exercise of police power.

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

Rule Against Premature Campaigning The use of lawful election propaganda is subject to the supervision and regulation of the COMELEC in order to prevent premature campaigning and to equalize, as much as practicable, the situation of all candidates by preventing popular 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 including advertisements on print, in radio, or on television showing image or mentioning the name of a person, who subsequent to the placement or display thereof becomes a candidate for public office, be immediately removed, otherwise, this shall be presumed as premature campaigning in violation of Section 80 of the OEC.

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

Page 1417/12/2008

A disqualified candidate may only be substituted if he had a valid certificate of candidacy in the first place because, if the disqualified candidate did not have 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)

¥say

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 substitute candidate is of the same family name. (Section 12, RA 9006) See the case of Luna vs. COMELEC

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

COMELEC shall call for the holding or continuation of the election not held, suspended 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 elect but not later than 30 days after the cessation of the cause of such postponement 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 National and Local Elections Act)

Page 1427/12/2008

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 vs. COMELEC, G.R. Nos. 148575-76, December 10, 2003)

¥say

1. Motu proprio; or 2. Upon a verified petition by any interested party, after due notice and hearing. COMELEC shall call for the holding of the election on a date reasonably close 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.

The postponement, declaration of a failure of election and the calling of special elections shall be decided by the COMELEC sitting en banc 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 failure of election is vested exclusively upon the COMELEC. x x x There is failure of election only when the will of the electorate has been muted and cannot be ascertained. 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Banaga, Jr. vs. COMELEC, 336 SCRA 701, the circumstances in the above case are not present in this case so that reliance in Loong by petitioner Banaga is misplaced. 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 declaration of failure of elections or for annulment of election results, based on allegations of fraud, terrorism, violence or analogous cases, the OEC denominates them similarly. Petition to Declare Failure of Election Election Protest A special action under Rule 26, Comelec An ordinary action under Rules of Procedure Comelec Rules of Procedure

Rule

20,

Docket number starts with SPA

Docket number starts with EPC

An En Banc decision of the COMELEC in a special action becomes final and executory after 5 days from promulgation, unless restrained by the SC

En Banc decision of the COMELEC in an ordinary action becomes final and executory within 30 days from its promulgation

Page 1437/12/2008

and massive fraud was granted by the COMELEC. Even before the technical examination of election documents was conducted, the cOMELEC already observed badges of fraud just by looking at the election results in Parang. Nevertheless, the COMELEC dismissed the petition for annulment of election results or to declare failure 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 the results of the election based on the certificates of canvass of votes in Parang, are also evident in the election results of the five (5) mentioned municipalities. The SC ruled that the COMELEC committed grave abused of discretion in dismissing the petition as there is no law which 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 COMELEC to reinstate the aforesaid petition.

¥say

Ma. Luisa Angeles Ramos

COUNTING OF VOTES

143

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

Principle of Ballot Secrecy—voters 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.

A ballot which has been cast carries the presumption that it reflects the will of 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 validity. 1. Where only first name or surname is written—the vote for such candidate is valid, if there is no other with the same name or surname for the same office. Gonzaga vs. Seño, 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 not a valid vote for either of the candidates. In order that his vote may be counted, 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 incumbent’s full name, first name or surname is same as another—the first part of the rule, the vote is counted in favor of the candidate whose surname corresponds to the word. The second part refers to a situation where there are 2 or more candidates, one of whom is 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 candidates.

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In reading and appreciation of ballots, every ballot shall be presumed valid unless 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 intention of the voter, if it could be determined with reasonable certainty. (Ferin vs. Gonzales, 53 SCRA 237)

¥say

Rules for the Appreciation of Ballots: (Section 211, OEC)—a function of the Board of Election Inspectors

Example: the incumbent’s name is Jose Santos, while the other’s candidate’s name is Jose 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

4. Where 2 or more words are surnames of 2 or more candidates—when 2 or more words 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 candidates 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 which are the surnames of 2 or more candidates bearing the same surname for an office 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 vote shall be counted in favor of all candidates bearing the surname.

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3. Where candidate is a woman using her maiden or married surname or both which is same surname of incumbent—a ballot bearing only such surname shall be counted in favor of the candidate who is an incumbent. Where none of the candidates is an incumbent, a ballot bearing only such surname cannot be counted for any of them. Where a ballot contains only the maiden surname of a candidate, and there is another candidate bearing the same surname, such ballot shall be counted in her favor. (Conui-Omega vs. Samson, 9 SCRA 493)

¥say

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 candidate.

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 and the other is the surname of his opponent—the 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

9. Erroneous initial—the erroneous initial of the first name accompanied by the correct surname of a candidate or the erroneous initial of the surname accompanied by the correct first name of a candidate shall not annul the vote in his favor. 10. Prefixes or suffixes—ballots containing prefixes such as “Sr.”, Mr.”, “Datu”, “Hon.”, “Don”, or 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 appellations—if accompanied by the first name or surname 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 invalid. However, if the nickname used is unaccompanied by the name or surname of a candidate and it is the one by which he is generally or popularly known in the locality, the name shall be counted in favor of said candidate, if there is no other candidate for the same office with the same nickname.

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8. Repetition of names in 2 or more line—when 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 office 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 identify the voter, in which case the whole ballot shall be void.

¥say

7. Idem sonam—a 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 counted 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 the votes apparently intended for a candidate, so long as the intention of the voter appears to be clear. This rule is liberally construed.]

12. Descriptio Personae—it does not invalidate the ballot. 13. Vote in favor of disqualified candidate—it shall be considered as stray vote and 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

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 other anomaly in the preparation of the election returns concerned, when duly authenticated. A CV does not constitute sufficient evidence of the true and genuine results of the elections; only election returns are. In like manner, neither is the tally board sufficient evidence of the real results of the election. CANVASSING Canvassing Bodies: 1. Congress—for President and VP 2. COMELEC—Senators and Regional Officials 3. Provincial Board of Canvassers—for Congressmen, Municipal Officials 4. District Board of Canvassers—Congressmen, Municipal officials 5. City and Municipal BOC—Congressmen, City and Municipal officials 6. Barangay Board of Canvassers—Barangay officials COMELEC has direct control and supervision over the Board of Canvassers except Congress. It may motu proprio relieve at any time and substitute any member of the board of canvassers. (Section 227, OEC)

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Certificate of Votes Balindong vs. COMELEC, 27 SCRA 567, the Certificate of Votes (CV) is evidenced not only of tampering, alteration, falsification or any other anomaly in the preparation of the election returns but also of the votes obtained by the candidates.

¥say

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 vote 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.

Prohibited Relationship: Related within the 4th civil degree by consanguinity or 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, who proclaimed as the 8th winning candidate one who did not obtain the 8 th highest number of votes, may be criminally prosecuted for violation of Section 231 of 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

COMELEC shall have exclusive controversies. (Section 242, OEC)

jurisdiction

over

all

pre-proclamation

Belac vs. COMELEC, G.R. No. 145802, April 24, 2001, Section 241 of the OEC provides 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 examination of the election returns and is without jurisdiction to go beyond or behind them and investigate election irregularities. The policy consideration underlying the delimitation of both substantive ground and 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.

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PRE-PROCLAMATION CONTROVERSY—Section 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 political 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 relation to the preparation, transmission, receipt, custody and appreciation of the election returns. (Bandala vs. COMELEC, G.R. No. 159369, March 3, 2004)

¥say

Ma. Luisa Angeles Ramos

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, Bernas, 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 they are obviously manufacture, or not authentic. 4. When substitute and fraudulent returns in controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidates. (Section 243, OEC)

Exception: Pre-proclamation cases are not allowed in elections for President, VP, Senators, and Members of the HOR. However, this does not preclude the authority of the appropriate canvassing body motu proprio or upon written complaint of an interested person to correct manifest errors, question the composition or proceeding of the board of canvassers and to determine the authenticity and due execution of certificates of canvass as provided in Section 30 of RA 7166, as amended by RA 9369. (Pimentel III vs. COMELEC, G.R. No. 178413, March 13, 2008) “manifest errors”—the 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, needing no evidence to make it more clear. (O’Hara vs. COMELEC, G.R. No. 148941-42, March 12, 2002) Correction of manifest errors has reference to errors in the election returns, in 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 that “it is evident to the eye and understanding, visible to the eye, that which is open, palpable, and incontrovertible, needing no evidence to make it more clear, not obscure or hidden. (Dela Llana vs. COMELEC, G.R. No. 152080)

Page 1497/12/2008

General Rule: Candidates and registered political parties involve in an election are allowed to file a pre-proclamation cases before the COMELEC.

¥say

 Issues #s 2, 3 and 4 are not applicable to election of President, VP, Senators and Members of the House of Representatives. Only #1 is applicable to them.

Espidol vs. COMELEC, G.R. No. 164922, October 11, 2005, COMELEC is with authority to annul any canvass and proclamation illegally made. The fact that a candidate illegally proclaimed has assumed office is not a bar to the exercise of such power. It is also true that as a general rule, the proper remedy after proclamation of the winning candidate for the position contested would be to file a regular election protest or quo warranto except where the proclamation is null and void, the proclaimed candidate’s assumption of office cannot deprive 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Pre-Proclamation Controversy  There was election

Petition for Failure of Election  There was no election

Jurisdiction: Division of a COMELEC

Jurisdiction: COMELEC En Banc

 Once proclaimed, the pre-proclamation  shall be dismissed Lagumbay vs, COMELEC, 16 SCRA 175, the election return was an obviously manufactured return. The returns were palpably false as it was indeed statistically improbable 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 other party got precisely nothing. The Supreme Court enunciated the DOCTRINE OF STATISTICAL 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 the votes, each of whom exactly the same number, and the opposing candidates got zero votes, the election returns are obviously manufactured, contrary to all statistical probabilities, and utterly improbable and clearly incredible.

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Sandoval vs. COMELEC, G.R. No. 133842, January 26, 2000, the authority to rule on petitions for correction of manifest error is vested in the COMELEC EN BANC. Section 7 of Rule 27 of the 1993 COMELEC Rules of Procedure provides that if the error is discovered before proclamation, the board of canvassers may motu proprio, or upon verified petition by any candidate, political party, organization or coalition of political parties, after due notice and hearing, correct the errors committed. The aggrieved party may appeal the decision of the board to the COMELEC and said 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 could not have been discovered during the canvassing despite the exercise of due diligence and proclamation of the winning candidate had already been made.

¥say

Ma. Luisa Angeles Ramos

The doctrine applies only when the improbability is shown on the face of the ER itself and without regard to evidence aliunde or to evidence outside of the return.

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

Piercing the Veil of Election Returns— The general rule is that a pre-proclamation case before the COMELEC is, logically, no longer viable after a proclamation has been made. However, this rule admits 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 canvass that should have been suspended with respect to the contested election returns; 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 the 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 election. 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-proclamation controversy, the Board of Canvassers and the COMELEC are not to look beyond or behind election returns which are on heir face regular and authentic returns. (Jainal vs. COMELEC, G.R. No. 174551, March 7, 2007)

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Simultaneous Prosecution of Pre-Proclamation Controversies and Election Protests— There is no law or rule prohibiting the simultaneous prosecution or adjudication of pre-proclamation controversies and election protests. Allowing the simultaneous prosecution scenario may be explained by the fact that pre-proclamation controversies and election protests differ in terms of the issues involved and the evidence admissible in each case and the objective each seeks to achieve. (Tan vs. COMELEC, G.R. Nos. 166143-47, November 20, 2006)

¥say

Ma. Luisa Angeles Ramos

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;

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

Good faith is not a defense. Election offenses are generally mala prohibita. Proof of criminal intent is necessary. Good faith, ignorance or lack of malice is not a defense; the commission of the prohibited act is sufficient. Jurisdiction: 1. Investigation and prosecution—COMELEC—the investigating officer shall resolve the case within five (5) days from submission. 2. Trial and decisions: RTC—exclusive original jurisdiction any criminal action or proceedings for violation 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 proceeding—to expedite the settlement of controversies between candidates as to who receive the majority of legal votes. Purpose: to ascertain the true will of the people Election Laws, how Construed—laws governing election contests must be liberally construed 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 court has the imperative duty to ascertain by all means within its command who is the real candidate elected by the electorate. (Dela Llana vs. COMELEC, G.R. No. 152080)

¥say

Coercion of subordinates; Threats, intimidation, terrorism, use of fraudulent device or other forms of coercion; Coercion of election officials and employees; Appointment of new employees, creation of new position, promotion, giving of salary increases; Intervention of public officers and employees; Undue influence; Unlawful electioneering; Others.

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4. 5. 6. 7. 8. 9. 10. 11.

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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

3. 4.

5. 6.

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 jurisdiction to entertain a petition for certiorari and mandamus on matters which may be threshed out in an election contest. It is the SET which has exclusive jurisdiction to act on the complaint involving, as it does, a contest relating to the election of a now member of the Senate.

Appellate Jurisdiction 1. For decisions of RTC and MTC—appeal to COMELEC whose decision shall be final and executor 2. For decisions of COMELEC—Petition for Review on Certiorari with SC within 30 days 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 Tribunal—Petition for Review on Certiorari with SC on ground of grave abuse of discretion amounting to lack or excess of jurisdiction or violation of due process

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2.

(2) distinct post-election remedies. They have one objective, i.e., to unseat the winning candidate. Senate Electoral Tribunal (SET)  Senators House of Representatives Electoral Tribunal (HRET)  Congressmen COMELEC  Regional officials  Provincial officials  City officials Regional Trial Court  Municipal officials Metropolitan Trial court, Municipal Circuit Trial Court, and Municipal Trial Court  Barangay officials  Sangguniang Kabataan

¥say

Ma. Luisa Angeles Ramos

ACTIONS WHICH MAY BE FIELD: 153

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

1. ELECTION PROTEST—filed by any candidate who has filed a COC and has

Death of Protestant—does not necessarily extinguish an election protest Poe vs. Arroyo, PET Case No. 002, March 29, 2005, the widow of the protestant has no status of real party in interest to substitute or intervene for the latter who died during the pendency 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 ordinary civil actions, because it involves not only the adjudication of the private interest of the rival candidates but also the paramount need of dispelling once and for all the uncertainty that beclouds the real choice of the electorate with respect 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 filing of a preproclamation controversy or amounts to the abandonment of one earlier filed, thus depriving the COMELEC of the authority to inquire into and pass upon the title of the protestee or the validity of his proclamation. 2. QUO WARRANTO—filed by any registered voter in the constituency on the grounds of:  Ineligibility; or  Disloyalty to the Republic

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Filed within 10 days from proclamation of results of election

¥say

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

ELECTION PROTEST A contest between the defeated and winning candidates, based on grounds of election frauds or irregularities, as to who actually obtained the majority of

QUO WARRANTO Refers to questions of disloyalty and ineligibility of the winning candidates. It is a proceeding to unseat the ineligible person from office, but not to 154

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

Quo Warranto in Elective Office Quo Warranto in Appointive Office The issue is the eligibility of the officer- The issue is the legality of the elect; the court or tribunal cannot declare appointment; the court determines who of the protestant as having been elected. the parties has legal title to the office. The period for filing an election protest is suspended during the pendency of a preproclamation 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 within the time he is required to answer the protest, i.e., within five (5) days upon receipt of the protest, unless a motion for extension is granted, in which case it must be filed before 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-protest. The period to be observed is within five (5) days from the time of the receipt 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 counter-protest belatedly filed. (Kho vs. COMELEC, 279 SCRA 463, September 25, 1997)

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Filed by filed by any candidate who  Filed by any registered voter in the has filed a COC and has been voted constituency. for. The respondent may be unseated but  A protestee may be ousted and the the petitioner will not be seated. protestant may seat in the office vacated. (Dumayas, Jr. vs. COMELEC, G.R. Nos. 141952-53, April 20, 2001)

¥say

the legal votes and therefore is entitled install the protestant in his place. to hold the office.

155

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

Gementiza vs. COMELEC, 353 SCRA 724, March 6, 2001, the COMELEC EN BANC shall decide 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 Procedures—Any motion to reconsider a decision, resolution, order or ruling of a Division shall be resolved by the Commission 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 accordance with Article IX-C, Section 3 of the Constitution which mandates that only motions for reconsideration of final decisions shall be decided by the COMELEC en banc. Counter-Protest erroneously filed and accepted by the COMELEC—remedy: 1. Erase from the record; 2. Certiorari.

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Francis King Marquez vs. COMELEC, G.R. No. 127318, August 25, 1999, any contest relating to the election of members of the Sangguniang Kabataan (SK), including the Chairman—whether pertaining to their eligibility or the manner of their election—is cognizable by MTCs, MCTCs, and MeTCs. Section 6 of COMELEC Resolution No. 2824 which provides that cases involving the eligibility or qualification of SK candidates shall be decided by the City/Municipal Election Officers whose decision shall be final, applies only to proceedings before the election. Before proclamation, cases concerning the eligibility of SK Officers and members are cognizable by the Election Officer. But after the election and proclamation, the same cases become quo warranto cases cognizable by MTCs, MCTCs, and MeTCs. The distinction is based on the principle that it is the proclamation which marks off the jurisdiction of the courts from the jurisdiction of election officials.

¥say

Ma. Luisa Angeles Ramos

Execution Pending Appeal—the 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 jurisdiction 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

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

Article VI LEGISLATIVE DEPARTMENT Legislative Power— It is the power or competence of the legislative to propose, enact, ordain, amend/alter, modify, abrogate or repeal laws. It is vested in the Congress which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum.

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¥say

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

SENATE HOUSE OF REPRESENTATIVES Composition: Twenty-four (24), Composition: not more than 250 members, elected at large by the qualified voters unless otherwise provided by law, consisting of the Philippines, as may be provided of: by law. a. District Representatives— elected from legislative districts apportioned among the Qualifications: 157

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

Disqualifications: a. No Senator shall serve for more than 2 consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. (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 than 18 months; or

b.

Party-List Representatives— constitutes 20% of the total number of representatives elected through a party-list system of registered national, regional and sectoral parties or organization.

c. Sectoral Representatives—1/2

of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the: i. ii. iii. iv. v. vi.

vii.

Labor; Peasant; Urban poor; Indigenous cultural communities; Women; Youth; and 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 the party-list representatives; 5. Resident of the district for a period of not less than 1 year immediately preceding the day of the election;

¥say

Term of office: 6 years—shall commence, unless otherwise provided by law, at noon on the 30th day of June next following their election.

provinces, cities and the Metropolitan Manila area. (Sec. 5, par. 1, Article VI)

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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.

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

Electoral Tribunal: Senate Electoral Tribunal (SET)—composed of three (3) Supreme Court Justices and six (6) Senators—to act as sole judge of all contest relating to election returns and qualifications of their respective members. Removal: Thru EXPULSION by the Senate with the concurrence of two-thirds (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 immediately 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 represent 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 marginalized and underrepresented groups. h. Must comply with the declared policy of enabling Filipino citizens belonging 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

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v. A crime involving moral turpitude, unless given plenary pardon or granted amnesty (Section 12, BP 881— Omnibus Election Code)

¥say

Ma. Luisa Angeles Ramos

159

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

Manner of Voting: (Sec. 10, RA 7941) Every voter shall be entitled to two (2) votes: (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 entitled 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 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 than 18 months; or v. A crime involving moral turpitude, unless given plenary pardon or granted amnesty (Section 12, BP

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of the law; its nominees must likewise do so; m. Not only the candidate party or organization must represent marginalized and underrepresented sectors; so also must its nominees; and n. The nominee must likewise be able to contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole.

¥say

Ma. Luisa Angeles Ramos

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881—Omnibus 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 party, 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 relating 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 obtain at least 2% of the votes cast under the party-list system in the two preceding elections for the constituency in which it had registered. (Section 6, RA

¥say

Ma. Luisa Angeles Ramos

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, Bernas, 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 Congress–Section 17, Art. VI

Salaries—Section 10, Article VI—The salaries of Senators and Members of the House of Representatives shall be determined by law. No increase in said compensation shall take effect until after the expiration of the full term of all the Members of the Senate and the House of Representatives approving such increase. Inhibitions and Prohibitions: a. Incompatible office—may not hold office or employment in government during his term without forfeiting his seat; b. Forbidden office—may 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 pecuniary benefit or where he may be called upon to act on account of his office (Sec. 14, Article VI).

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Vacancy—Section 9, Article VI—In case of vacancy in the Senate or in the House of Representatives, a special election may be called to fill such vacancy in the manner prescribed by law, but the Senator or Member of the House of Representatives thus elected shall serve only for the unexpired term.

¥say

Removal: EXPULSION by the House with the concurrence of two-thirds (2/3) of all its members (Sec. 16, par. 3, Art. VI)

CONFLICT OF INTEREST—all members of the Senate and the HOR shall, upon assumption of office, make a full disclosure of their financial and business interests. They 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.

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

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 office or employment in the government provided he forfeits his position in the Congress.

¥say

Incompatible Office—no 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.

Forbidden Office—no Senator or member of the House of Representatives shall be appointed to any office, which may have been created, or the emoluments thereof increased during the term for which he was elected. With this, even if the member of the Congress is willing to forfeit his seat therein, he may not be appointed to any office in the government that has been created or the emoluments thereof have been increased during his term. Such a position 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 allowed only during the term for which he was elected, when such office was created or its emoluments were increased. After such term, and even if the legislator is reelected, the disqualification no longer applies and he may therefore be appointed to the office.

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Forfeiture of the legislator’s seat, or cessation of his tenure, shall be automatic upon holding of the incompatible office.

Privileges: a. Freedom from arrest—while Congress is in session for offense punished by not more than 6 years imprisonment (Article 145, RPC; Sec. 11, Art. VI) b. Speech and Debate clause—not to be questioned nor held liable in any other place 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Coquilla vs. COMELEC, G.R. No. 151914, July 31, 2002, the SC ruled that he petitioner had not been a resident of Oras, Eastern Samar, for at least one year prior to the May 14, 2001 elections. Although Oras was his domicile of origin, petitioner 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 citizenship through repatriation, petitioner was an alien without any right to reside in the Philippines.

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In Marcos vs. COMELEC, 248 SCRA 300, the Court upheld the qualification of Imelda Marcos, despite her own declaration in her certificate of candidacy that she had 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 establishing a new one, and acts which correspond with the purpose; in the absence of clear and positive proof of the concurrence of all these, the domicile of origin should be deemed to continue; c. The wife does not automatically gain the husband’s domicile because the term “residence” in Civil Law does not mean the same thing in Political Law; when Mrs. Marcos married Ferdinand Marcos in 1954, she kept her domicile of origin and merely gained a new home, not a domicilium necessarium; d. Even assuming that she gained a new domicile after her marriage and 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, her domicile of origin, as her domicile of choice.

¥say

Composition and Qualifications—they are exclusive under the principle of expressio unios est exclusio alterius, with the result that it is not competent for the Congress to provide by mere legislation for additional qualifications no matter how relevant they may be. (Justice Isagani Cruz, Philippine Political Law)

In Caasi vs. COMELEC, it was held that the immigration to the US by virtue of the acquisition of a “green card” constitutes abandonment of domicile in the Philippines.

164

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

REPUBLIC ACT 7941— AN ACT PROVIDING FOR THE ELECTION OF PARTY-LIST REPRESENTATIVES THROUGH THE PARTY-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 to become veritable lawmakers themselves, empowered to participate directly in the enactment of laws designed to benefit them. It intends to make the marginalized and the underrepresented not merely passive recipients of he State’s benevolence, but active participants in he mainstream of representative democracy. Thus, allowing all individuals and groups, including those which now dominate 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.

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¥say

Ma. Luisa Angeles Ramos

2. Crucial to the resolution of this case is the fundamental social justice principle 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 gives 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 change is possible. It is an invitation for them to come out of their limbo and seize the opportunity. Clearly, therefore, the Court cannot accept the submissions xxx that the party-list system is, without any qualification, open to all. Such position does not only weaken the electoral chances of the marginalized and underrepresented; it also prejudices 165

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

Inviolable parameters to determine the winners in Party-List election: 1. The Twenty Percent (20%) Allocation—the combined number of all party-list congressmen shall not exceed twenty percent (20%) of the total membership of the House of Representative, including those elected under the party-list; 2. The Two Percent (2%) Threshold—only those garnering a minimum of 2% of

the total valid votes cast for the party-list system are qualified to have a seat in the HOR;

¥say

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 Bayani-OFW Labor Party vs. COMELEC, G.R. No. 147589, June 26, 2001)

votes it actually obtained, is entitled to a maximum of 3 seats; that is, one (1) qualifying and two (2) additional seats. 4. The Proportional Representation—the additional seats which a qualified party

is entitled to shall be computed “in proportion to their total number of votes”. (Veterans 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 words—it must show in its constitution, by-laws, articles of incorporation, history, platform of government and track record—that it represents and seeks to uplift marginalized and underrepresented sectors. Verily, majority 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 choose the interest of such sectors.

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3. The Three (3) Seat Limit—each qualified party, regardless of the number of

2. They must comply with the declared statutory policy of enabling “Filipino citizens 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, Bernas, 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, that they represent the interests of the marginalized and underrepresented.

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 must be a group of citizens, organized by citizens and operated by citizens. It must be independent of the government. 6. The party must not only comply with the requirements of the law; its nominees must likewise do so; 7. Not only the candidate party or organization must represent marginalized and underrepresented sectors; so also must its nominees; and 8. The nominee must likewise be able to contribute to the formulation and

enactment of appropriate legislation that will benefit the nation as a whole. (Ang Bagong Bayani—OFW Labor Party vs. COMELEC, G.R. No. 147589, June 26, 2001)

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Yumabong, which is allegedly a religious group, the Court notes the express constitutional provision that the religious sector may not be represented in the party-list system. The prohibition is on any religious organization registering as political party not against a priest running as a candidate.

¥say

3. In view of the objections directed against the registration of Ang Buhay Hayaang

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 election laws. This power includes the determination, within the parameters fixed by law, of appropriate periods for the accomplishment of certain pre-election acts like filing petitions for registration under the party-list system. This is exactly what the COMELEC did when it issued its Resolution No. 6320 declaring September 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Citizen’s Battle Against Corruption (CIBAC) vs. COMELEC, G.R. No. 172103, April 13, 2007, the correct formula in ascertaining the entitlement to additional seats 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 DOCTRINE—doctrine of the rejection of the second placer—not 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, compact, and adjacent territory. Each city with a population of at least two hundred fifty thousand (250,000), or each province, shall have at least one representative. This is intended to prevent gerrymandering.

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Effect of change of affiliation— Any elected party-list representative who changes his political party or sectoral 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 an 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 reserved 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 the unexpired term. If the list is exhausted, the party, organization or coalition concerned shall submit additional nominees.

¥say

Choosing Party-List Representatives—they are proclaimed by the COMELEC based on the list of names submitted by the respective parties, organizations or coalitions to the COMELEC according to their ranking in the list.

Gerrymandering—the creation of representative districts out of separate portions 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

In Montejo vs. COMELEC, it was held that while concededly the conversion of Biliran into a regular province brought about an imbalance in the distribution of voters and inhabitants in the 5 districts of Leyte, the issue involves reapportionment of legislative districts, and Petitioner’s remedy lies with Congress. This Court cannot itself make the reapportionment as petitioner would want. SESSIONS (Section 14, Article VI) 1. Regular—convene once every year. The 4th Monday of July until 30 days before

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Mariano vs. COMELEC, G.R. No. 118627, March 7, 1995, the Court held that the Constitution 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) representative districts. With the elevation of Mandaluyong from municipality into a highly urbanized city, both Mandaluyong and San Juan were recognized by RA 7675 as distinct representative districts. This was challenged on the ground that RA 7675 did not mention any census indicating that San Juan and Mandaluyong had the minimal requirement of 250,000 inhabitants needed to constitute a district. Neither did the challengers, however, give any evidence that the respective populations of each of the two political units were less than the number required. Hence the court presumed that Congress had made due consideration of the minimum requirement. It ruled that reapportionment of legislative districts may be made through a special law. To hold that reapportionment can be made only through a general law would create an inequitable situation where a new city or province created by Congress will be denied legislative representation for an indeterminate period of time. That intolerable situation would deprive the people in the city or province a particle of that sovereignty. Sovereignty cannot admit subtraction; it is indivisible. It must be forever whole or it is not sovereignty.

¥say

Ma. Luisa Angeles Ramos

the start of new regular session (Section 14, Article VI)—adjournment is allowed —30 days before the opening of its next regular session—this is compulsory;

2. Special— a. Called by the President (Sec. 15, Article VI)—the President has the power

to call special session; without the call of President—impeachment 169

2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, 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 3rd day after the vacancies (Sec. 10, Article VII)

d. To revoke or extend the Presidential Proclamation of Martial Law or suspension of the Writ of Habeas Corpus (Section 18, article VII) 3. Joint—

a. Voting separately—

¥say

c. Decide on the disability of the President because the majority of all the members 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)

ii. Determine the President’s disability (Section 11, Article VII); iii. Confirming nomination of Vice-President (Section 9, Article VI); iv. Declaring existence of state of war (Section 23, Article VI); and v. Proposing constitutional 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).

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i. Choosing the President (Section 4, Article VII);

4. Adjournment—Neither Chamber during session, without consent of the other,

adjourn for more than 3 days, nor any other place than that in which the two Chambers shall be sitting (Section 16, par. 5, Article VI) Adjournment Sine Die—the 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 order to validly pass a law

170

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The Senate is a continuing body while the House is not.

In Osmeña vs. Pendatun, 109 Phil 863, the determination of the acts which constitutes disorderly behavior is within the full discretionary authority of the House concerned, and the Court will not review such determination, the same being a political question. 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 in 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 misbehavior as a member of Congress. (Paredes vs. Sandiganbayan, G.R. No. 118364, August 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 court 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 should be suspended only in the office where he is alleged to have committed the acts charged. Furthermore, the order of suspension provided in RA 3019 is distinct 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 of powers, by itself, is not deemed to have effectively excluded the members of Congress from RA 3019 or its sanctions.

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The interpretation of disorderly behavior—is the prerogative of the House concerned and cannot be judicially reviewed.

¥say

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.

PARLIAMENTARY IMMUNITY 171

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

“in session”—not day to day; refers to the entire duration of the session from its opening until its adjournment. b. Speech and Debate clause—not to be questioned nor held liable in any

other place 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 legislature for his inability to support his statements with the usual evidence required in the court of justice. “in any other place”—but not in the Senate or Congress itself

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Two (2) Kinds: a. Freedom from arrest or detention—while Congress is in session for offense 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 of Congress to surrender the Member of the House of Representatives to the custody of law. The requirement that he should be attending sessions or committee meetings has also been removed. For relatively minor offenses, it is enough that Congress is in session. (People vs. Jalosjos, 324 SCRA 689, February 20, 2000)

¥say

A Senator or member of the HOR shall, in all offenses punishable by not more than 6 years imprisonment, be privileged from arrest while the Congress is in session. 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.

Section 16, par. 3, Article VI—Each House may determine the rules of its proceedings, 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 imposed, shall not exceed 60 days. People vs. Jalosjos, 324 SCRA 689, the immunity from arrest or detention of Senators and Members of the HOR arises from a provision of the Constitution. The history of the provision shows that the privilege has always been granted in a restrictive sense. The provision granting an exemption as a special privilege cannot be extended 172

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

The present Constitution adheres to the same restrictive rule minus the obligation of Congress to surrender the subject Congressman to the custody of law. The requirement that he should be attending sessions or committee meetings has also been removed. For relatively minor offenses, it is enough that Congress is in session. Accused-appellant argues that a member of Congress’ function to attend sessions is underscored by Section 16 (2), Article VI of the Constitution which states that— (2) A majority of each House shall constitute a quorum to do business, 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 provide. However, the accused-appellant has not given any reason why he should be exempted 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 punishable 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 illustration, 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.

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Because of the broad coverage of felony and breach of the peace, the exemption applied only to civil arrests. A congressman like the accused-appellant, convicted under Title 11 of the Revised Penal Code could not claim parliament immunity from arrest. He was subject to the same general laws governing all persons still to be tried or whose convictions were pending appeal.

¥say

beyond the ordinary meaning of its term. It may not be extended by intendment, implication or equitable considerations. x x x

EXECUTIVE PRIVILEGE; Varieties of: It is the power of the government to withhold information from the public, the courts, and the Congress. (Schwartz) 173

2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, 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 to withhold information from Congress, the courts, and ultimately the public. (Rozell)

In determining the validity of a claim of privilege, the question that must be asked is not only whether the requested information falls within one of the traditional 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 privilege, whether asserted against Congress, the courts, or the public, is recognized only 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 is made. Noticeably absent is any recognition that executive officials are exempt from the duty to disclose information by the mere fact of being executive officials. Indeed, the extraordinary character of the exemptions indicates that the presumption inclines heavily against executive secrecy and in favor of disclosure.

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2. Informer’s privilege—privilege of the government not to disclose the identity of persons who furnish information in violations of law to officers charged with the enforcement of the law. 3. Generic privilege—for internal deliberations has been said to attach to intragovernmental documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.

¥say

1. State secret privilege—invoked by Presidents on the ground that the information is of such nature that its disclosure would subvert crucial military or diplomatic objective.

General rule: DISCLOSURE—(policy on transparency) Exceptions: Disclosure would subvert crucial diplomatic or military objective. 1. Supreme Court 2. Executive Secretary 3. President—must invoke executive privilege

174

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

Commission on Appointments—(Section 18, Article VI) The Commission is independent of the two Houses of Congress; its employees are not, technically, employees of Congress. It has the power to promulgate its own rules of proceedings. Powers: Act on all appointments submitted to it within 30 session days of Congress from their submission; to act on Presidential appointments; has power to promulgate its own rules of proceedings. Composition: Senate President—acts 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 organizations 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, where there are two or more political parties represented in the Senate, a political party/coalition with a single senator in the Senate cannot constitutionally claim 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 be at least a majority of the entire membership.

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PROTOCOL DE CLOTURE—a final act; an instrument which records the winding up of the proceedings of a diplomatic conference and usually includes a reproduction of the 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 which 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. (Tañada vs. Angara, 272 SCRA 18, 1997)

¥say

Ma. Luisa Angeles Ramos

POWERS OF CONGRESS Classification: 175

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

1. LEGISLATIVE—

Limitations on the Powers of Congress: 1. SUBSTANTIVE— a. Express: i. ii. iii. iv. v.

Bill of Rights (Article III); On Appropriations (Sections 25 and 29 paragraphs 1 and 2, Article VI); On taxation (Sections 28 and 29, paragraph 3, Article VI); On Constitutional appellate jurisdiction of SC (Section 30, Article VI); No law granting title of royalty or nobility shall be passed (Section 31, Article VI); vi. No specific funds shall be appropriated or paid for use or benefit of any religion, sect, etc., except for priests, etc., assigned to AFP, penal institutions, etc. (Sections 29, paragraph 2, Article VI).

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2. NON-LEGISLATIVE—includes 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 disputes 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 corpus or declaration of martial law (Section 18, Art. VII);  Set the rules regarding the utilization of natural resources (Section 2, Art. XII).

¥say

 General plenary power;  Specific power of appropriation;  Taxation and expropriation;  Legislative investigations (Section 21, Art. VI); and  Question hour (Section 22, Art. 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, Article VI); 176

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¥say

b. Three (3) readings on separate days; 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 last reading, no amendment allowed and the vote thereon taken immediately and the yeas 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

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. Secretary 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 created 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 observed—Section 26, Article VI: 1. One (1) subject, One (1) Title Rule—to prevent RIDERS—totally unrelated matters 2. Three (3) Readings on Separate Days

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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 objections 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 Section 10, Article VII becomes a law upon third and final reading.

¥say

How a bill becomes a law?

Except: when the President certifies to the necessity of the immediate enactment of the bill to meet the public calamity and emergency political question—not subject to judicial review Section 26 (par. 1), Article VI—every bill passed by the Congress shall embrace only 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Literal interpretation—the subject or title need not be an index or catalogue. It must 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 comprehensive enough to embrace the general objective it seeks to achieve, and if all the parts of the statute are related and germane to the subject matter embodied in the title or so long as the same are not inconsistent with or foreign to the general subject and title. Section 26, par. 2 of Article VI—No bill passed by either House shall become a law unless it has passed three readings on separate days, and printed copies thereof in its final form have been distributed to its Members three days before its passage, except when the President certifies to the necessity of its immediate enactment to meet a public calamity or emergency. ENROLLED BILL DOCTRINE It is one duly introduced and finally passed by both houses, authenticated by the proper officer of each, and approved by the President. It is conclusive upon the courts as regards the tenor of the measure passed by Congress and approved by the President.

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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 overlooked and carelessly and unintentionally adopted; and 3. To fairly appraise the people, through such publication of legislative proceedings as is usually made, of the subjects of legislation that are being considered, in order that they may have opportunity of being heard thereon by petition or otherwise if they shall so desire.

¥say

Ma. Luisa Angeles Ramos

Once the bill becomes an enrolled bill, it is conclusive upon the court of its due 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 decree.

179

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

BICAMERAL CONFERENCE COMMITTEE—the mechanism for compromising differences between the Senate and the House—capable of producing unexpected result—bill will have to be sent back to both houses and subject to votation. A conference committee may deal generally with the subject matter or it may be limited to resolving the precise differences between the two houses. Even where the 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, results beyond its mandate. These e4xcursions occurs even where the rules impose strict 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)

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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 official 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 government, charged, respectively, with the duty of enacting and executing the laws, that it was passed by the Congress. the respect due to co-equal and independent departments requires the judicial department to act upon the assurance, and to accept, as having passed Congress, all bills authenticated in the manner stated; leaving 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)

¥say

The enrolled bill rule rests on the following considerations:

DOCTRINE OF SHIFTING MAJORITY— For each house to pass a bill, only the votes of the majority of those present in the session, there being a quorum, is required. Quorum—A 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, Bernas, 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 quorum in the Senate shall be the total number of Senators who are in the country and within the coercive jurisdiction of the Senate.

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 present; 3. The yeas and nays upon re-passing a bill over the President’s veto; and 4. The President’s 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 entered into the Journal. (Morales vs. Subido, 26 SCRA 150)

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LEGISLATIVE JOURNAL—regarded as conclusive with respect to matters that are required 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 conclusive 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 permanent character,” thus: “They should be public, because all are required to conform to them; 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 Venecia, 277 SCRA 268)

¥say

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 obviously present for the purpose of delaying the business of the House.

President’s 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. Inaction—the bill automatically becomes a law within 30 days upon receipt of the bill from Congress. 181

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

PRESIDENTIAL VETO— VETO—Section 27, Article VI 1. General veto of the President—paragraph 1 of Section 27, Article VI 2. Item/Line veto of the President—paragraph 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. xxx The OSG is correct when it states that the Executive must veto a bill in its entirety or not at all. He or she cannot act like an editor crossing out specific lines, provisions, or paragraphs in a bill that he or she dislikes. In the exercise of the veto power, it is generally veto, however, when it comes to appropriation, revenue or tariff bills, the Administration needs the money to run the machinery of the government and it can not veto the entire bill even if it may contain objectionable features. The President is, therefore, compelled to approve into law the entire bill, including its undesirable parts. It is for this reason that the Constitution has wisely provided the “item veto power” to avoid inexpedient riders being attached to an indispensable appropriation or revenue measures.

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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 not in session.

¥say

There is no such thing as “pocket veto” here in the Philippines because inaction by the President for 30 days never produces a veto even if Congress is in recess. The President must still act to veto the bill and communicate his veto to the Congress without need of returning the vetoed bill with his veto message.

The Constitution provides that only a particular item or items may be vetoed. The 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)

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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.

Exceptions to the Exception: 1. DOCTRINE OF INAPPROPRIATE PROVISION—Section 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 vetoed a provision of the general appropriation bill. The Supreme Court ruled in favor of the veto power of the President. Section 25 (2), Article VI—No 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 provision—it may be treated as an item—subject to the item veto of the President. 2. Executive Impoundment—refusal 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 establish 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 the fiscal outlook improves.

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Item—Refers to the particulars, the details, the distinct and severable parts of the bill. It is an indivisible sum of money dedicated to a stated purpose.

¥say

Exception: Paragraph 2 of Section 27, Article VI—Item/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.

3. Legislative Veto—a congressional veto is a means whereby the legislature can

block or modify administrative action taken under a statute. It is a form of

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legislative control in the implementation of particular executive action. The form may either be: a. Negative—subjecting the executive action to disapproval by Congress; or b. Affirmative—requiring approval of the executive action by Congress.

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 specify the project or activity to be funded under the appropriation law. Appropriations Law—A 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 contracts. (COMELEC vs. Judge Quijano Padilla and Photokina Marketing Corp., G.R. No. 151992, September 18, 2000) Classification: 1. General Appropriation Law—passed annually, intended to provide for the financial operations of the entire government during one fiscal period. 2. Special Appropriation Law—designed 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.

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Local Chief Executives have veto power except the Punong Barangay.

¥say

A congressional veto is subject to serious questions involving the separation of powers.

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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

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 improvements actually, directly and exclusively used for religious, charitable or educational purposes shall be exempt from taxation. 3. All revenues and assets of non-stock, non-profit educational institutions used actually, directly and exclusively for educational purposes shall be exempt from taxes and duties. 4. Law granting tax exemption shall be passed only with the concurrence of a majority of all the members of Congress.

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1. Congress may not increase appropriations recommended by the President for operation of the Government—to 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 to some particular appropriations therein; 4. Procedure for approving appropriations for Congress shall be the same as that of other departments—to prevent sub rosa appropriations by Congress; 5. Prohibition against transfer of appropriations (Doctrine of Augmentation), 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 appropriations. 6. Prohibition against appropriations for sectarian benefit; and 7. Automatic re-appropriation.

¥say

Ma. Luisa Angeles Ramos

ELECTORAL TRIBUNAL— Section 17, Article V—Senate and House of Representatives—sole judge of all contest relating to the election returns and qualifications of their respective Members No appeal lies. Appeal is merely statutory. The remedy is Rule 65, Certiorari (Special 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Pimentel vs. HRET, G.R. No. 141489, November 29, 2002, the SC said that even assuming 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 Representatives and not with the Court. Only if the House fails to comply with the directive of the Constitution on proportional representation of political parties in the HRET and Commission on Appointments can the party-list representatives seek recourse from this Court through judicial review. Under the doctrine of primary 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 300—As to the HRET’s supposed assumption of jurisdiction over the issue of petitioner’s qualifications after the May 8, 1995 elections, suffice it to say that HRET’s jurisdiction as the sole judge of all contests relating to the elections, returns and qualifications of members of Congress begins only after a candidate has become a member of the House of Representatives (Article VI, Section 17 1987 Constitution). Petitioner not being a member of the House of Representatives, it is obvious that HRET at this point has no jurisdiction over the question. COMELEC is not ousted of jurisdiction. See also Section 6 of RA 6646.

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Bondoc vs. Pineda, 201 SCRA 792, “Disloyalty to the party” and “Breach of party discipline” are not valid grounds for the expulsion of a member. HRET members enjoy security of tenure; their membership may not be terminated except for a just cause such as the expiration of congressional term, death, resignation from the political party, formal affiliation with another political party, or removal for other valid causes.

¥say

HRET—although attached to the Congress, has separate and distinct personality. It was created as a non-partisan court. It must be independent of Congress and devoid of partisan influence and consideration. Members of HRET, once appointed thereto, they shall be accorded thereto of security of tenure to ensure their impartiality and independence.

Guerrero vs. COMELEC, 336 SCRA 458 (July 26, 2000)— While the Congress is vested with the power to declare valid or invalid certificate of candidacy, its refusal to exercise the power following the proclamation and assumption of Fariñas 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 exclusive 186

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

The Court has stressed that so long as the Constitution grants the HRET the power to be the sole judge of all contests relating to the elections, returns and qualifications 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 reviewed by the Supreme Court. The power granted to the Electoral Tribunal excludes the exercise of any authority on the part of this Court that would in any 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 Tribunal are beyond judicial interference, the Court may do so, however, but only “in the exercise of the SC’s so-called extraordinary jurisdiction upon determination that the Tribunal’s 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 constitutes a denial of due process of law, or upon demonstration of a very clear unmitigated error, manifestly constituting such grave abuse of discretion that there has to be remedy for such abuse.

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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 qualifications of their respective members.

¥say

jurisdiction over all contests relative to the elections, returns and qualifications 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, COMELEC’s jurisdiction over election contests relating to his elections, returns and qualifications ends, and the HRET’s own jurisdiction begins. Thus, the COMELEC’s decision to discontinue exercising jurisdiction over the case is justifiable, in deference to the HRET’s own jurisdiction and functions.

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 vindicate 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)

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Power to conduct inquiries in aid of legislation—Investigatorial Power—not absolute; subject judicial review in view of the expanded power of the court to determine whether there has been grave abuse of discretion amounting to lack or excess 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 House concerned; and 3. The right of persons appearing in or affected by such inquiries shall be respected. Remedy: invoke the Right against Self-Incrimination Section 21 (Legislative investigation) vs. Section 22(Question Hour) 1. Inquiry in aid of legislation—they 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 concern (Section 7, Article III) 2. Members of the executive cabinet in view of EO 464

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POWER OF LEGISLATIVE INVESTIGATION—(Section 21, Article VI)

¥say

Section 21, Article VI—The Senate or the HOR or any of its respective committees may 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 inquiries shall be respected. Constitutional limitation on inquiries in aid of legislation

These two (2) sections should not be considered as pertaining to the same power of Congress. One specifically relates to the power to conduct 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 conduct a question hour, the objective 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Senate vs. Ermita, G.R. No., 169777, April 20, 2006, while attendance to Congressional hearings is discretionary on the part of the department heads during “question 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 functions. Though, this is not the case when the Congress exercises its power of inquiry in aid of legislation. Sections 21 and 22 of Article VI, therefore, while closely related and complementary to each other, should not be considered as pertaining to the same power of Congress. one specifically relates to the power to conduct 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 conduct 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 inquiry, being broad, encompasses everything that concerns the administration of existing laws as well as proposed or possibly needed statutes. It even extends to government agencies created by Congress and officers whose positions are within the power of Congress to regulate or even abolish. A mere provision of law cannot pose a limitation to the broad power of Congress, in the absence of any constitutional basis.

¥say

2. The Committees conduct the investigation 3. The subject matter is any matter for the purpose of legislation 4. Appearance is mandatory

1. 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

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1. Any person may appear

QUESTION HOUR—integral in a parliamentary government; the heads of departments may, upon their own initiative, with the consent of the President, or upon the request 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 questions 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

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 legislative investigation. Otherwise, it would be extremely easy to subvert any intended inquiry by Congress through the convenient ploy of instituting a criminal 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 of 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 interest.

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Arnault vs. Nazareno, 87 Phil. 29—the inquiry, to be within the jurisdiction of the 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 member. (The power to conduct Inquiry is integral and implied of legislative power)

¥say

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 executive session

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 system of government. The oversight power has also been used to ensure the accountability of regulatory commissions like the SEC. Unlike other ordinary administrative agencies, 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

It is based primarily on the power of appropriation of Congress. xxx But legislative scrutiny does not end in budget hearings. Congress can ask the heads of departments to appear before and be heard by either the House of Congress 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, integrity and probity required of all public servants. b. Congressional investigation—involves a more intense digging of facts. It is recognized under Section 21, Article VI. Even in the absence of constitutional mandate, it has been held to be an essential and appropriate auxiliary to the legislative functions. c. Legislative supervision—it connotes a continuing and informed awareness on

the part of congressional committee regarding executive operations in a given administrative area. It allows Congress to scrutinize the exercise of delegated law-making authority, and permits Congress to retain part of that delegated authority. Congress exercises supervision over the executive agencies through its veto power. It typically utilizes veto provisions when granting the President or an executive agency the power to promulgate regulations with the force of law. These provisions require the President or an agency to present the proposed regulations to Congress, which retains a “right” to approve or disapprove any regulation before it 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 meantime. Less frequently, the statute provides that a proposed regulation will become a law if Congress affirmatively approves it.

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Categories of Congressional Oversight Functions: a. Scrutiny—implies a lesser intensity and continuity of attention to administrative operations. Its primary purpose is to determine economy and efficiency of the operation of government activities. In the exercise of legislative scrutiny, Congress may request information and report from the other branches of government. It can give recommendations or pass resolutions for consideration of the agency involved.

¥say

Ma. Luisa Angeles Ramos

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LAW-MAKING POWERS OF CONGRESS— Pertinently, the power to make laws—legislative power—is vested in Congress. Congress 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 delegari—delegated power may not be delegated. The rule which forbids the delegation of legislative power, however, is not absolute and inflexible. It admits of exceptions. An exception sanctioned by immemorial practice permits the legislative body to delegate its licensing power to certain persons, municipal corporations, towns, boards, councils, commissions, commissioners, auditors, bureaus and directors. Such licensing power includes the power to promulgate necessary rules and regulations. (Chavez vs. Romulo, G.R. No. 157036, June 9, 2004)

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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 war.

¥say

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

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

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The President may not veto a law enacted thirty-five (35) years before his or her term of office. Neither may the President set aside or reverse a final and executory judgment of the Supreme Court through the exercise of veto power. (Bengzon vs. Drilon, 208 SCRA 133, April 15, 1992)

VICE-PRESIDENT Q U A L I F IC A T I O NS

1. 2. 3. 4. 5.

Natural-born citizen; Registered voter; Able to read and write; At least 40 years of age on the day of election; and Resident of the Philippines for at least 10 years immediately preceding the election. TERM OF OFFICE Six (6) years DISQUALIFICATIONS 1. Not eligible for any re-election; 1. Shall not serve for more than two (2) 2. No person who has succeeded as consecutive terms (Sec. 4, Art. VII) President and has served as such for more than 4 years shall be qualified for election to the same office at any time (Sec. 4, Art. VII); General Disqualifications*

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PRESIDENT

¥say

The executive power shall be vested in the President of the Philippines. (Section 1, Article VII) In National Electrification Administration vs. CA, G.R. No. 143481, February 15, 2002, the President is vested with the power to execute, administer, 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.

a. One who has been declared incompetent or insane by competent authority; 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 18 months; or 193

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

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.

Page 1947/12/2008

1.

x. A crime involving moral turpitude, unless given plenary pardon or granted amnesty (Section 12, BP 881—Omnibus Election Code) INHIBITIONS AND PROHIBITIONS Shall not receive any other emolument from the government or any other source (Section 6, Article VII); Shall not hold any other office or employment unless otherwise provided in the Constitution; Shall not practice any other profession; Shall not participate in any business; Shall not be financially interested in any contract with, or in any franchise, or special privilege granted by the Government, including GOCCs; Shall avoid conflict of interest in conduct of office; Shall avoid nepotism. (Section 13, Article VII) PRIVILEGES Official residence; 1. Salary shall not be decreased during Salary is determined by law and his tenure; not to be decreased during his 2. No need for Commission on tenure (Section 6, Article VII); Appointment confirmation for Cabinet Immunity from suit for official acts. post (Section 3, Article VII) CANVASSING BOARD Congress (Senate and House of Representatives); in case of tie, Congress by majority vote shall select. ELECTORAL TRIBUNAL Supreme Court (en banc) REMOVAL Impeachment only

¥say

Ma. Luisa Angeles Ramos

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 the votes for and proclaim the newly-elected President and Vice-President has not, and cannot, adjourn sine die until it has accomplished its constitutionally mandated tasks. For only when a board of canvassers 194

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

Immunity from suit: After his tenure, the President cannot invoke immunity from suit for civil damages arising out of acts done by him while he was President which were not performed in the exercise of his official duties. (Estrada vs. Desierto, G.R. Nos. 146710-15, 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 until 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 disability, the Speaker of the House of Representatives, shall act as President until a President or a VP shall have been chosen and qualified. In the event of inability of the officials mentioned, Congress shall, by law, provide for the manner in which one who is to act as President shall be selected until a President or VP shall have qualified.

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There is no constitutional or statutory basis for COMELEC to undertake a separate and an “unofficial” tabulation of results, whether manually or electronically. By conducting such “unofficial” tabulation, the COMELEC descends to the level of a private organization, spending public funds for the purpose. This not only violates the exclusive prerogative of NAMFREL to conduct an “unofficial” count, but also taints the integrity of the envelopes containing the election returns and the election returns themselves. Thus, if the COMELEC is proscribed from conducting an official canvass of the votes cast for the President and VP, the COMELEC is, with more reason, prohibited from making an “unofficial” canvass of said votes. (Brillantes vs. COMELEC, G.R. No. 163193, June 15, 2004)

¥say

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)

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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 resignation of President Estrada could not be doubted as confirmed by his leaving Malacañan 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 to 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 disability disappears); 3. He expressed his gratitude to the people for the opportunity to serve them as 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 national 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.

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At 10 o’clock in the morning of the 3rd day after the vacancy occurs, Congress shall convene without need of a call, and within 7 days enact a law calling for a special 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 certified and shall become a law upon its approval on 3rd reading by Congress. The convening of the Congress cannot be suspended nor the special election postponed. No special election shall be called if the vacancy occurs within 18 months before the date of the next presidential election.

¥say

Ma. Luisa Angeles Ramos

Intent to resign—must be accompanied by act of relinquishment—act or omission before, during and after January 20, 2001.

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Totality of prior contemporaneous posterior facts and circumstantial evidence— bearing material relevant issues—President Estrada is deemed to have resigned— constructive resignation

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 X—Power of general supervision over local governments

4. Calling-out power, power to place the Philippines under martial law and power to suspend the privilege of the writ of habeas corpus (Section 18, Article VII) 5. Pardoning power, reprieves, commutations, amnesty, remit fines and forfeitures (Section 19, Article VII) 6. Borrowing power (Section 20, Article VII) 7. Diplomatic/Treaty-making power (Section 21, Article VII) 8. Budgetary power (Section 22, Article VII) 9. Informing power—State of the Nation Address (Section 23, Article VII) 10. Veto power (Article VI) 11. Power of general supervision over local governments (Section 4, Article X) 12. Power to call special session (Section 15, Article VI) 13. Unstated Residual Power—not found in the Constitution 14. Power to Reorganize the Office of the President (Administrative Code) 15. Power of Impoundment

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Vacancy in the office of the VP: Whenever there is vacancy in the Office of the VP during the term for which he was elected, the President shall nominate a VP from among the Members of the Senate and the HOR who shall assume office upon confirmation by a majority vote of all the Members of both Houses of the Congress, voting separately. (Section 9, Article VII)

¥say

Resignation—may be written, oral, express, or implied, for as long as it is clear it must be given legal effect.

APPOINTING POWER—carries with it the Removal Power Appointment—is the selection, by the authority vested with the power, of an individual 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Appointing power is executive in nature. It is vested in the President. The power 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 only be removed through impeachment. Officers to be appointed by the President that require the confirmation of Commission on Appointments: (the list is exclusive) 1. Heads of the executive department Except: Vice-President—may be appointed as a Member of the Cabinet. Such appointment 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 otherwise 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 need CA confirmation. Only those enumerated in paragraph 1 of Section 16, Article VII need confirmation of the Commission on Appointments. The appointment of Salvador Mison as Commissioner of Customs needs no confirmation by the CA, because the Commissioner of Customs is not among the officers mentioned in the 1st paragraph of Section 16, Article VII.

Page 1987/12/2008

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 designation is considered only an acting or temporary appointment which does not confer security of tenure on the person named.

¥say

Designation—simply means imposition of additional duties on a person already in the public service.

Officers of the armed forces from the rank of colonel or naval captain—refers to military 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Manalo vs. Sistoza, 312 SCRA 239—a law was enacted creating the PNP, RA 6795. It provides that the Director, Deputy Director General, and other top officials of the 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 officers 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 legislative 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

Page 1997/12/2008

Calderon vs. Carale, 208 SCRA 254, Article 215 of the Labor Code as amended by RA 6715, insofar as it requires the confirmation by the CA of the appointment of the NLRC Chairman and commissioners, is unconstitutional because it violates Section 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 that need the confirmation of the CA.

¥say

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 DOTC, a civilian agency, the promotion and appointment of respondent officers of the PCG will not require confirmation by the CA.

199

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

Classifications: 1. Permanent—those extended to persons possessing the requisite eligibility and are thus protected by the constitutional guarantee of security of tenure. 2. Temporary—those given to persons without such eligibility, revocable at will and without necessity of just cause or a valid investigation, made on the understanding that the appointing power has not yet decided on a permanent 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 Commission on Appointments. Such confirmation, if given erroneously, will not make the incumbent permanent appointee. (Valencia vs. Peralta, 8 SCRA 692) 3. Regular—Appointment by the President when Congress is in session. It takes

effect only after confirmation by the CA, and once approved, continues until the end of the term of the appointee. 4. Ad Interim—(2nd paragraph of Section 16, Article VII)—Appointment by the

Page 2007/12/2008

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 acceptance, which is optional to the appointee, the appointment may still be validly withdrawn. Appointment to a public office cannot be forced upon citizen except for purposes of defense of the State under Section 4, Article II of the Constitution, as an exception to the rule against involuntary servitude.

¥say

Ma. Luisa Angeles Ramos

President when Congress is not in session. It takes effect immediately but ceases to be valid if disapproved by the CA or upon the next adjournment of Congress. It is deemed by-passed through inaction. It is intended to prevent interruptions in vital government services that would otherwise result from the prolonged vacancies in government offices. It is a permanent appointment because it takes effect immediately and can no longer 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 itself 200

2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, 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 until disapproved by the CA or until the next adjournment of Congress. a. Recess—one made while the Congress is not in session, before

it is confirmed by the CA

Ad interim appointment disapproved by the Commission on Appointments—can no longer be extended a new appointment. The disapproval is a final decision of the Commission on Appointments in the exercise of its checking power on the appointing power of the President. The disapproval is a decision on the merits, being a refusal by the CA to give its consent after deliberating on the qualifications of the appointee. Since the Constitution does not provide for any appeal from such decision, the disapproval is final and binding on the appointee 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 appointment, 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 meantime” or “for the time being”. An ad interim appointment means a permanent appointment made 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 interim appointee who has qualified and assumed office becomes at that moment a government employee and therefore part of the civil service. He enjoys the constitutional protection that he cannot be suspended or removed except for causes provided by law. The withdrawal or revocation of an ad interim appointment is possible only if it is communicated to the appointee before the moment he qualifies, and 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 is 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.

Page 2017/12/2008

b. Midnight—made by the President before his term expires, whether or not

¥say

confirmation by the Commission on Appointment; immediately effective; and ceases to be valid if disapproved or bypassed by CA upon the next adjournment of Congress;

201

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

Ad Interim Takes effect immediately

regular Does not take effect immediately

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. Benipayo—whether ad interim appointees by-passed 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 on Appointments because of lack of time or failure of the latter to organize is another 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 Congress. There is no final decision by the Commission on Appointments to give or withhold 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 bypassed 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 Appointments. 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 Benipayo, 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

Page 2027/12/2008

Made while Congress is not in Made when Congress is in session session The distinction lies in the effectivity of the appointment

¥say

Appointee assumes office immediately Appointee assumes office only after and later on the appointment should be confirmation by the CA confirmed by the CA

202

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

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, whether as a member or as a chairman, because he will then be actually serving more 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 because a reappointment will result in the appointee also serving more than seven years. 3. Where the appointee is confirmed to serve the unexpired term of someone 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 serving more than seven years. 4. Where the appointee has previously served a term less than seven years, 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 unexpired term is also prohibited because his situation will be similar to those appointed under the second sentence of Section 1 (2), Article IX-C of the Constitution. This provision refers to the 1st appointees under the Constitution, whose terms of office are less than 7 years, but are barred from ever being reappointed under any situation.

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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 Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment. Of those first appointed, three Members shall hold office for seven years, two Members for five years, and the last Member for three years, without reappointment. Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity.

¥say

three respondents will result in any of the evils intended to be exorcised by the 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 expires on February 2, 2008 does not violate the prohibition on reappointments in Section 1 (2), Article IX-C of the Constitution.

203

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

Ad interim appointment Made if congress is not in session

Page 2047/12/2008

In Pimentel, Jr. vs. Ermita, G.R. No. 164798, October 13, 2005, Congress commenced their regular session on July 26, 2004, the Commission on Appointments was constituted on August 25, 2004. Meanwhile, President Arroyo issued appointments to respondents as acting secretaries of their respective departments. Respondents took their oath and assume duties as acting secretaries. Congress adjourned on September 22, 2004. On September 23, 2004, President Arroyo issued ad interim appointments to respondents as secretaries of the departments to which they were previously appointed in an acting capacity. A petition was filed to declare unconstitutional the appointments issued by the President to the respondents as acting secretaries of their respective departments without the consent of the Commission on Appointments while Congress is in session. The SC held that as a rule, the writ of prohibition will not lie to enjoin acts already done. However, an exception to the rule on mootness, courts will decide a question otherwise moot if it is capable of repetition yet evading review. In the present case, the mootness of the petition does not bar its resolution. The question of constitutionality of the President’s 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 department secretary is an alter ego of the President, the acting appointee to the office must necessarily have the President’s 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 person 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 law 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 government 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 person not yet in the government service, as long as the President deems that person competent.

¥say

Ma. Luisa Angeles Ramos

Appointment in an acting capacity 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Does not require confirmation of CA

Permanent in nature

Temporary in nature

Appointee enjoys security of tenure

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 President shall not during his tenure be appointed as Members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including government-owned or controlled corporations and their subsidiaries. 2. Appointments extended by an Acting President shall remain effective unless revoked by the elected President within 90 days from his assumption of office. (section 14, Article VII) 3. The presidential power of appointment may also be limited by Congress through its power to prescribe qualifications for public office. 4. The judiciary may annul an appointment made by the President if the appointee is not qualified or has not been validly confirmed by the Commission on Appointments. 5. Section 15, Article VII—2 types of appointment: Two months immediately before

the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety.

Page 2057/12/2008

Requires confirmation of CA

¥say

Ma. Luisa Angeles Ramos

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 votes—those appointments made within 2 months preceding 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

2. Those made for partisan considerations—consist of the so-called midnight

Case of First Impression

De Rama vs. Court of Appeals, 353 SCRA, 94, Mayor Evelyn Abeja run for reelection but lost. Before she vacated her office, though, she extended permanent appointments to 14 new employees of the municipal government. The incoming mayor, upon assuming office, recalled said appointments contending that these were “midnight appointments” and, therefore, prohibited under Section 15, Article VII of the Constitution. The SC held that the records reveal that when the petitioner brought the matter of recalling the appointments of the 14 private respondents before the Civil Service Commission, the only reason he cited to justify his actions was that these were “midnight appointments” that are forbidden by the Constitution. However, the CSC ruled, and correctly so, that the said prohibition applies only to presidential appointments. In truth and in fact, there is no law that prohibits local elective officials 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 vacancies in a public office through election by the co-workers in that office. Such manner of filling vacancies in a public office has no constitutional basis. And 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 President the power to appoint officers whose appointments are not provided for by the law.

Page 2067/12/2008

 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 MIDNIGHT appointment. Exception: temporary appointment to executive positions

¥say

appointments and those presumed made for the purpose of influencing the outcome of the presidential election.

POWER OF REMOVAL— General Rule: This power is implied from the power to appoint. Exceptions: Those appointed by him where the Constitution prescribes certain methods for separation from public services. Example: Members of the Constitutional Commissions, Justices of the SC—may only be removed through impeachment 206

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

POWER OF CONTROL— Sec. 17, Article VII: The President shall have control of all the executive departments, bureaus and offices. He shall ensure that the laws be faithfully executed. Faithful Execution Clause As Chief Executive, the President holds the steering wheel that controls the course of her government—she lays down policies in the execution of her plans and programs, and whatever policy, she chooses, she has her subordinates to implement them. (Chavez vs. Romulo, G.R. No. 157036, June 9, 2004) Control—is 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. Supervision—means 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 Chief Executive, are presumptively the acts of the Chief executive.

Page 2077/12/2008

Members of the career service of the Civil Service who are appointed by the President may be directly disciplined provided that the same is for cause and in accordance 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)

¥say

Ma. Luisa Angeles Ramos

In the case of DENR vs. DENR Region XII Employees, G.R. No. 149724, August 19, 2003, the power of the President to reorganize the National Government may validly be delegated to his Cabinet members exercising control over a particular executive department. Accordingly, in this case, the DENR Secretary can validly 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

POWER OF GENERAL SUPERVISION OVER LOCAL GOVERNMENTS (Section 4, Article X)—the President can only interfere in the affairs and activities of a LGU if he finds that the latter acted contrary to law. The 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 patent nullity, because it violates the principle of local autonomy, as well as the doctrine of separation of powers of the executive and the legislative departments in governing municipal corporations. (Judge 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 functions in accordance with law.

MILITARY POWERS—

Page 2087/12/2008

 The power of control may be exercised by the President only over the acts not over the actor (Angangco vs. Castillo, 9 SCRA 619)

¥say

Cotabato City Koronadal, South Cotabato. The exercise of this authority by the DENR Secretary, as an alter ego of the President, is presumed to be the act of the 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 President, he cannot invoke the President’s immunity from suit in a case filed against him, inasmuch as the questioned acts are not those of the President.

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 military commissions for the punishment of war criminals. Calling-out power—lawless violence Rebellion

declare martial law & suspend the writ of HC invasion “when the public safety 208

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

Invasion

rebellion

so requires”

Duration: not to exceed 60 days, following which it shall be lifted unless extended 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 of 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, otherwise he shall be released.

Page 2097/12/2008

President to require a military official to secure prior consent before appearing before Congress pertains to a wholly different and independent specie of presidential authority—the commander-in-chief powers of the President. By tradition and jurisprudence, the commander-in-chief powers of the President 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.

¥say

 Gudani vs. Senga, G.R. No. 170165, August 15, 2006 (Tinga), the ability of the

3. Proclamation of Martial Law— Constitutional safeguards on the exercise of the power of the President to proclaim 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Olaguer doctrine—aka OPEN COURT DOCTRINE—civilians cannot be tried by military courts 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 legislature or reversed by the courts unless there is violation of the Constitution.

Page 2107/12/2008

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 continues and public safety requires it; f. The Supreme Court may review, in an appropriate proceeding filed by any citizen, 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 thereof, 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 functioning of the civil courts or legislative assemblies, nor authorize the confinement of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ.

¥say

Ma. Luisa Angeles Ramos

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 conviction by final judgment. This provision, however, cannot be interpreted as denying the power of courts to control the enforcement of their decisions after the finality. In truth, an accused that has been convicted by final judgment still possesses collateral rights and these rights can be claimed in the appropriate courts. 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

1. Pardon—an act of grace which exempts the individual on whom it is bestowed from punishment which the law inflicts for a crime he has committed. a. Plenary or partial b. Absolute or conditional Conditional pardon—is in the nature of a contract between the sovereign power or the 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 portion of the sentence or an additional one. 2. Commutation—reduction or mitigation of penalty 3. Reprieve—postponement of sentence or stay of execution 4. Parole—release from imprisonment, but without full restoration of liberty, as parolee is in custody of the law although not in confinement 5. Amnesty—act 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 favorable 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

Page 2117/12/2008

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 cannot grant reprieve, i.e., postpone the execution of a sentence to a day certain in the absence of a precise date to reckon with. The exercise of such clemency power, at this time, might even work to the prejudice of the convict and defeat the purpose of the Constitution, and the applicable statute as when the date of execution set by the President would be earlier than that designated by court. (Echegaray vs. Secretary of Justice, 301 SCRA 96)

¥say

Ma. Luisa Angeles Ramos

211

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

granted to individuals

it need not be accepted

it must be accepted

it requires the concurrence of Congress

it does not need the concurrence of Congress

it is a public act

it is a private act of the President

it looks backward and puts the offense it looks forward and relieves the pardonee into oblivion of the consequences of the offense  Judicial admissions Matters of judicial notice no need of proof Judicial presumptions In Llamas vs. Orbos, pardon is available also to one found guilty of administrative offense. Section 19 of Article VII did not distinguish between a criminal and administrative 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 demanded for reinstatement and back salaries. The SC held that pardon may mean forgiveness but not forgetfulness. What was remitted is the penalty and not the fact of one’s 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 charged of the crime.

Page 2127/12/2008

granted to a class or classes of persons

¥say

ordinary offenses

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 be 212

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

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 agreements and applies to any form of treaty with a wide variety of subject matter. All treaties or international agreements entered into by the Philippines, regardless of subject matter, coverage, or particular designation or appellation, requires the concurrence of the Senate to be valid and effective. But see Section 25 of Article XVIII. Under this provision, the concurrence of the Senate is only one of the requisites to render compliance with the constitutional 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 from existing and proposed revenue measures. The Congress may not increase the appropriation recommended by the President. However, its form, content, manner of preparation of the budget shall be prescribed by Congress.

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DIPLOMATIC/TREATY-MAKING POWER (Section 21, Article VII) No treaty or international agreement shall be valid and effective unless concurred in by at least 2/3 of all the members of the Senate.

¥say

Limitations: 1. There must be prior concurrence of the Monetary Board 2. It is subject to such other limitations

INFORMING POWER—State 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

VETO POWER (Article VI)

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

¥say

RESIDUAL POWER— Whatever is not judicial, whatever is not legislative, is residual power exercised by the President.

5. By delegation from Congress, exercise emergency and tariff powers— Conditions for the exercise of the President of Emergency Powers: a. It can be exercised only in times of war or national emergency; b. There must be a law authorizing the President to exercise emergency powers; c. It must be for a limited period; d. It must be subject to restrictions which Congress may provide; and e. It must be necessary and proper to carry out a declared national policy. 6. Power to Reorganize the Office of the President—under EO 292, the Administrative Code of 1987 The law grants the President continuing authority to reorganize the Office of the President in recognition of the recurring need of every President to reorganize his office “to achieve simplicity, economy and efficiency”. The Office of the President is the nerve center of the Executive Branch. To remain effective and efficient, the Office must be capable of being shaped and reshaped by the President in the manner he deems fit to carry out his directives and policies.

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4. To discipline such deputies

Power to reorganize the Office of Power to reorganize the Office of the the President [Sec. 31 (2&3), EO President Proper [Sec. 31 (1), EO 292] 292]  The President’s power to reorganize  The President can reorganize the offices outside the Office of 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

IMPOUNDMENT POWER— Impoundment refers to the refusal of the President, for whatever reason, to spend funds made available by Congress. It is the failure to spend or obligate budget authority of any type. Proponents of impoundment have invoked at least three (3) principal sources of the authority of the President. 1. authority to impound given to him either expressly or impliedly by Congress 2. the executive power drawn from the President’s role as Commander-in-Chief 3. Faithful Execution Clause The proponents insist that a faithful execution of the laws requires that the President desist from implementing the law if doing so would prejudice public 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 to expect the President to spend the entire amount budgeted in the law. (PHILCONSA vs. Enriquez, 235 SCRA 506)

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Malaria Employees and Workers Association of the Philippines (MEWAP) vs. Executive Secretary Romulo, G.R. No. 160093, July 31, 2007, the President has the authority to carry out a reorganization of the DOH under the Constitutions and statutory laws. This authority is adjunct of his power of control under Article VII, Sections 1 and 17. The President’s power to re0organize the executive branch is also an exercise of his residual powers. However, the President must exercise good faith in carrying out the reorganization of any branch or agency of the executive department.

¥say

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

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

CONCEPT OF JUDICIAL POWER It is the power to hear and decide cases pending between parties who have the right to sue in courts of law and equity. Corollary to this dictum is the principle 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 redressed by a favorable decision in order to warrant an invocation of the court’s jurisdiction and justify the exercise of judicial power on his behalf. (Domingo vs. 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 rights which are legally demandable and enforceable (TRADITIONAL CONCEPT OF JUDICIAL POWER); and 2. To determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction (GADALEJ) on the part of any branch or instrumentality of the Government. (EXPANDED POWER)

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Article VIII JUDICIAL DEPARTMENT

¥say

Ma. Luisa Angeles Ramos

Jurisdiction: The power to hear and decide cases. Section 2, Article VIII—The Congress shall have the power to define, prescribe, and apportion the jurisdiction of the various courts but may not deprive the Supreme 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, Bernas, 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;

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 courts; 6. The members of the Judiciary have security of tenure;

¥say

3. The SC may not be deprived of minimum original and appellate jurisdiction; appellate jurisdiction may not be increased without its advice and concurrence;

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 Autonomy—means freedom from outside control. The Judiciary, the Constitutional Commissions, and the Ombudsman must have the independence and flexibility needed in the discharge of their constitutional duties. The imposition of restrictions and constraints on the manner the independent constitutional offices allocate and utilize the funds appropriated for their operations is anathema to fiscal autonomy and violative not only of the express mandate of the Constitution but especially as regards the SC, of the independence and separation of powers upon which the entire fabric of our constitutional system is based. (Bengzon vs. Drilon, 208 SCRA 133, April 15, 1992)

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7. The members of the SC may not be designated to any agency, performing quasijudicial or administrative functions;

Appointment to the Judiciary: Qualifications: Of proven competence, integrity, probity and independence. In addition: 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, Bernas, 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

practice of law in the Philippines for the same period.

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 public office in the Philippines requiring admission to the practice of law as an indispensable 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 submission of the list. Tenure of Justices and Judges: A. Supreme Court—Hold office until they reach the age of 70 or become incapacitated to discharge their duties. They may be removed only through impeachment.

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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 public office in the Philippines requiring admission to the practice of law as an indispensable requisite

¥say

B. Justices of the Court of Appeals Same qualifications as those provided for SC Justices Congress may prescribe other qualifications

B. Lower Courts—Hold 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 issues and voted thereon, SC en banc shall have the power to discipline judges of lower courts or order their dismissal. No law shall be passed reorganizing the Judiciary when it undermines the security of tenure of its Members.

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

Appointment: The President shall appoint regular members for a 4-year term with the consent of 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, and Habeas Corpus;

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JUDICIAL AND BAR COUNCIL Composition: Ex-Officio Chairman—Chief Justice of the Supreme Court Ex-Officio Members —Secretary of Justice —Representative of Congress Regular Members—Representative of the IBP Professor of Law Retired Member of SC Representative of private sector Secretary de Officio—Clerk of the Supreme Court

¥say

Ma. Luisa Angeles Ramos

Certiorari Jurisdiction of the SC—limited to decisions rendered in actions or proceedings taken cognizance of by the Commissions in the exercise of their adjudicatory 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

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, instruction, 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 higher; and e. All cases in which only a question of law is involved. C. Electoral Tribunal for Presidential and Vice-Presidential Contests, over all

¥say

Ma. Luisa Angeles Ramos

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. Rule-making power—promulgates rules concerning: 1. Protection and enforcement of constitutional rights; 2. Pleading, practice, and procedure in all courts; 3. Admissions to the practice of law; 4. IBP; and 5. Legal assistance to the underprivileged. Limitations on rule-making power: a. Provide a simplified and inexpensive procedure for speedy disposition of cases; b. Uniform for all courts of the same grade; c. Shall not diminish, increase or modify substantive rights.

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contests relating to the election, return and qualification of the President or VicePresident.

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 protection of constitutional rights and rules governing pleading, practice and procedure 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, Bernas, 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 rules 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 Appointment—SC appoints all officials and employees of the Judiciary

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; it can take years to build a reputation and only a single accusation, although unfounded, to destroy it. (Godinez vs. Alano, A.M. RTJ-98-1409, February 18, 1999) I.

Yearly Report—Within 30 days from the opening of each regular session of Congress, SC shall submit to the President and Congress an annual report on the operation 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, international or executive agreement, law, executive order, or presidential decree, proclamation, 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 Commission, Commission on Election, and Commission on Audit; 5. Cases where the penalty to be imposed is the dismissal of a judge, officer or employee of the judiciary, disbarment of a lawyer, or either the suspension of any of them for a period of more than one (1) year or a fine exceeding ten thousand pesos (P10,000.00) or both; 6. Cases where a doctrine or principle laid down by the court en banc or in division may be modified or reversed; 7. Cases assigned to a division which in the opinion of at least three (3) members thereof merit the attention of the court en banc and are acceptable to a majority 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, Inc. vs. CA, 334 SCRA 465, June 28, 2000) Consultations/Decisions of SC—

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H. Power of Administrative Supervision—SC shall have administrative supervision over all courts and personnel thereof.

¥say

in accordance with Civil Service law.

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 Member for the writing of the 221

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

Section 14, Article VIII—No decision shall be rendered by any court without 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 corpus, certiorari and mandamus, provided a legal basis is given therein. Neither will it apply to administrative cases.

¥say

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 served 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

1. 2. 3. 4.

the trial court’s failure to fully explain the correlation of the facts; the weight of the admissibility of the evidence; the assessments made from the evidence; and 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 deliberating on a petition and any subsequent pleadings, manifestations, comments or motions, decides to deny due course to a petition, and states—in a minute resolution— that the questions raised are factual or no reversible error in the respondent court’s decision is shown or some other legal basis stated in the resolution, there is sufficient compliance with the constitutional requirement.

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People vs. Baring, G.R. No. 137933, January 28, 2002, the trial court’s decision may cast doubt on the guilt of the accused, not by the lack of direct evidence against the accused but by:

222

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WRIT OF AMPARO—it 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 entity. 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 power of the SC to promulgate rules for the protection and enforcement of constitutional 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. “amparo”—means protection, from “amparar” meaning “to protect” Who may file? The petition may be filed by the aggrieved party or by any qualified person or entitiy 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 within the 4th civil degree of consanguinity or affinity, in default of those mentioned above; or



Any concerned citizen, organization, association, or institution, if there is no known member of the immediate family or relative of the aggrieved party.

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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 promulgate rules and regulations for the protection and enforcement of constitutional rights.

¥say

WRIT OF AMPARO

 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 petition by an authorized party on behalf of the aggrieved party suspends the rights of 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

 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 deputized 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 Writ—the respondent shall file a verified written return together with 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. RTC—returnable 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

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 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 petition it ought to issue. It is served on the respondent by a judicial officer or by a person deputized by the court, justice or judge who shall retain a copy on which to make a return of service.

¥say

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 elements occurred; • Sandiganbayan • Court of Appeals or any Justice of such courts • Supreme Court

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

Available Interim Reliefs: 1. Temporary Protection Order—upon 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 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 to establish the right of the aggrieved party alleged to be threatened or violated. It expires five (5) days after date of its issuance, unless extended for justifiable reasons.

¥say

2. Inspection Order—issued to any person in possession or control of a

admission to the Witness Protection, Security and Benefit Program, or to other government 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 filed a verified motion supported by affidavits or testimonies of witnesses having personal 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 submitted for decision. If the allegations in the petition are proven by substantial 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 failure of petitioner or witnesses to appear due to threats on their lives, it shall 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 upon failure to prosecute the case after the lapse of two (2) years from notice to the petitioner of the order archiving the case.

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3. Witness Protection Order—the witness may be referred to the DOJ for

Does the filing of the petition preclude the filing of separate criminal, civil or 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 motion in the criminal case, and the procedure under this rule shall govern the disposition 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, Bernas, 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 writ, the latter shall be consolidated with the criminal action.

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 supremacy of Constitution.

¥say

When a criminal action and a separate civil action are filed subsequent to a petition for a writ of amparo, the latter shall be consolidated with the criminal action. After consolidation, the procedure under this Rule shall continue to apply to the disposition of the reliefs in the petition.

Political Questions—those questions which, under the constitution, are to be decided 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 or the efficacy or the necessity of a particular measure. These are questions which 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 Executive—political branches of the government—where laws are enacted and enforced

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Justiciable Question—a 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

RECALL- a mode of removing a local official from his post even before his term ends due to lack of confidence. It is a political question which can not be intruded by the courts. Ybardone vs. COMELEC- lack of confidence is to be decided by the people thru a special recall election 226

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

The case at bar pose legal and not political questions. The principal issues for resolution require the proper interpretation of certain provisions in the 1987 Constitution, notably Sec. 1 of Article II and Sec. 8 of Article VI, and the allocation of 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 foray in the dark. EDSA I EDSA II -involves the exercise of people power of -involves the exercise of people power of revolution which overthrows the whole freedom of speech and freedom of government assembly to petition the government for redress of grievances which only affected the office of the President

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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 political question, hence not subject to judicial review SC held that the case of Lawyer's League is inapplicable; the government of former President Aquino was the result of a successful revolution by the sovereign people, 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 the Filipino people "in defiance of the provisions of the 1973 Constitution, as amended." It is familiar learning that the legitimacy of a government sired by a successful revolution by people power is beyond judicial scrutiny for that government automatically orbits out of the constitutional loop. In checkered contrast, the government of respondent Arroyo is not revolutionary in character. The oath that she took at the EDSA Shrine is the oath under 1987 Constitution. In her oath, she categorically swore to preserve and defend the 1987 Constitution. Indeed, she has stressed that she is discharging the powers of the presidency under the authority of the 1987 Constitution.

¥say

Lawyer's League vs. Aquino—Petitioner questioned the legality of the Aquino Government. -the SC dismissed the petition that it has gone outside the ambit of judicial review - the mere presence of the people, without inquiring to their motive in going to EDSA, caused Marcos to fly to Hawaii.

-extra constitutional and the legitimacy of -intra constitutional and the resignation the new government that resulted from it of the sitting President that it caused and cannot be the subject of judicial review 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

IBP vs. ZAMORA (2000) The SC said that when the President calls out the armed forces to suppress lawless violence, rebellion or invasion, he necessarily exercises a discretionary power solely vested in his wisdom. The Court cannot overrule the President's discretion or substitute its own. The only criterion is that "whenever it becomes necessary", the President may call out the armed forces. In the exercise of the power, 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 call 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 gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the 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)

¥say

-involves legal questions

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-presented a political question

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

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, authorize the President, for a limited period and subject to restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof.

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Randolf David, et al. vs. GMA, et al. (2006) Petitioners failed to rebut the assertion that GMA acted with grave abuse of discretion 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 implied 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 restraint on the press, are ultra vires and unconstitutional. The Court also rules that under Sec. 17, Art. XII, the president, in the absence of legislation, cannot take over privately-owned public utility and private business affected with public interest.

¥say

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, and must promulgate its decision thereon within 30 days from its filing. xxx

Generally, Congress is the repository of emergency powers. This is evident in the tenor of the above provision authorizing it to delegate such powers to the President. Certainly, a body cannot delegate a power not reposed upon it. However, knowing that during grave emergencies, it may not be possible or practicable for Congress to meet and exercise its powers, the Framers of the Constitution deemed it wise to allow Congress to grant emergency powers to the President, 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

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 interest. The President cannot decide whether exceptional circumstances exist warranting the take over of privately-owned public utility or business affected with public interest. Nor can he determine when such exceptional circumstances have ceased. 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 passed by Congress.

¥say

Ma. Luisa Angeles Ramos

General rule: POTESTA DELEGATA NON DELEGARE POTEST- what has been delegated cannot be re-delegated. It is based on ethical principle that delegated powers constitutes not only a right but a duty to be performed by the delegate through the instrumentality of his own judgment and not through the intervening mind of another. While PAGCOR is allowed under its charter to enter into operator’s and/or management 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 operate 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” PAGCOR’s franchise if it were to legally operate on-line internet gambling (Jaworski vs. PAGCOR, G.R. No. 144463, January 14, 2004).

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*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

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 provisions where the people have reserved to themselves the function of legislation. Referendum vs. Plebiscite Referendum Plebiscite -the power of the electorate to approve or -the electoral process by which an initiative reject legislation through an election called 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

for that purpose by the people E-mergency power of the President. (Sec. 23(2), Art. VI) T-ariff Powers to the President. (Sec. 28(2), Art. VI)

Tests for Valid Delegation: 1. Completeness Test—The law must be complete in all its essential terms and conditions when it leaves the legislature so that there will be nothing left for the delegate to do when it reaches him except to enforce it. 2. Sufficient Standard Test—intended to map out the boundaries of the delegate’s

authority by defining the legislative policy and indicating the circumstances under which it is to be pursued and effected. This is intended to prevent a total transference of legislative power from the legislature to the delegate. Three (3) Important Functions of Judicial Review 1. Checking 2. Legitimating Rule on Double Negative—uses the term “not unconstitutional”; the court cannot declare a law constitutional because it already enjoys a presumption of constitutionality

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L-ocal government. (RA 7160) “Such legislation (by LG) is not regarded as a transfer of general legislative power, but rather as the grant of the authority to prescribe local regulations, according to immemorial practice, subject, of course, to the interposition of the superior in cases of necessity” (People vs. Vera). This recognizes the fact that local legislatures are more knowledgeable than the national lawmaking body on matters of purely local concern, and are in better position to enact appropriate legislative measures thereon.

¥say

A-dministrative agencies- “The power of subordinate legislation.”

3. Symbolic - educating the bar and bench and the people on the extent of protection given by the constitutional guarantees Proclamation No. 1021 was issued lifting PP 1017- it becomes moot and academic but 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 legal relations of parties who are pitted against each other due to their 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

The issue raised in the case must not be moot and academic, or because 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 and controlling constitutional principles, precepts, doctrines or rules and 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 review—it presupposes that: i. The life of the controversy is too short to be fully litigated prior to its termination, and ii. That there is a reasonable expectation that the plaintiff will again be subjected to the same problem

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A request for an advisory is not an actual case or controversy. But an action for declaratory relief is proper for judicial determination.

¥say

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 request of the General Assembly, or the Security Council, or the other organs of the UN when authorized by the General Assembly.

2. The constitutional question must be raised by the proper party—A proper party is one who has sustained or is in imminent danger of sustaining an injury as a result of the act complained of. (LOCUS STANDI) "Legal Standing"- personal and substantial interest in the case such that the party 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

In IBP vs. Zamora, G.R. No. 141284, August 15, 2000, the petition seeking to nullify 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 the 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 constitutional 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 case is a matter of public concern and imbued with public interest; it is of paramount public interest and of transcendental importance. Kilosbayan vs. Morato, 246 SCRA 540, the petitioners do not posses the legal capacity to institute the action for annulment of the Equipment Lease Agreement (ELA) because they are without a “present substantial interest”, as distinguished from mere expectancy, or future, contingent, subordinate or consequential interest. “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 evidence is sufficient, or that he has a legal title to defend and the defendant will be protected in payment to or recovery from him.

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In Sanlakas vs. Executive Secretary, G.R. No. 159085, February 3, 2004, Rep. Suplico, et al., and Senator Pimentel were considered as proper parties to contest the constitutionality of Pres. Arroyo’s proclamation of a “state of rebellion” after the Oakwood incident.

¥say

Court in view of the importance of the issues involved. Thus, where the issues raised 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 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 danger of sustaining some direct injury as a result of its implementation; and they admitted 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 legal standing to file the instant suit. In Cutaran vs. DENR, G.R. No. 134958, January 31, 2001, the SC refused to give due 233

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

Exception: FACIAL CHALLENGE. The statute is absolutely unconstitutional under no circumstance. But the only time a facial challenge to a statute is allowed is when 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 Doctrine—permits a party to challenge the validity of a statute even though 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 citizen can raise a constitutional question only when 1) he can show that he has personally suffered some actual or threatened injury because of the allegedly illegal conduct of the government; 2) the injury is fairly traceable to the challenged action; and 3) a favorable action will likely redress the injury.

3. The constitutional question must be raised at the earliest opportune time— generally, 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 jurisdiction of the court. In Umali vs. Guingona, G.R. No. 131124, March 21, 1999, the question of constitutionality of the Presidential Commission on Anti-Graft and Corruption (PCAGC) was not entertained because the issue was raised by the petitioner only in his motion for reconsideration before the RTC of Makati. It was too late to raise the issue for the first time at that stage of the proceedings.

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General rule: A party can question the validity of a statute only if, as applied to him, it is unconstitutional.

¥say

course to a petition seeking to enjoin the DENR from processing the ancestral land claim of private respondent over a property located at Camp John Hay reservation in Baguio, on the ground that there is no actual or imminent violation of the petitioner’s asserted right. Court will not touch an issue involving the validity of a law unless there has been a governmental act accomplished or performed that has a direct adverse effect on the legal right of the person contesting its legality. Until such time, petitioners are simply speculating that they might be evicted from the premises at a future time.

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

—must be determinative of the case itself/entire controversy

(3) Upon the expiration of the corresponding period, a certification to this effect 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 upon 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 court, without prejudice to such responsibility as may have been incurred in consequence 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 regular courts of lower collegiate level that in the present hierarchy applies only to the Court of Appeals.

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PERIOD FOR DECISION Section 15, Article VIII—(1) All cases or matters filed after the effectivity of this 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 the filing of the last pleading, brief, or memorandum required by the Rules of Court or by the court itself.

¥say

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 controversy. Every law has in its favour the presumption of constitutionality, and to justify its nullification, there must be a clear and unequivocal breach of the Constitution, and not one that is doubtful, speculative or argumentative.

The Sandiganbayan is a special court of the same level as the Court of Appeals and 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 of 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

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 cumbersome reproduction of the decision of the lower court, or portions thereof, in the decision of the higher court. The idea is to avoid having to repeat in the body of the higher court decision the findings or conclusions of the lower court since they are being approved or adopted anyway. 3. The purpose is to affirm the decision, although it is not impossible that the approval of the finding of facts by the lower court may lead to a different conclusion of law by the higher court. (Yao vs. CA, 344 SCRA 202, October 24, 2000)

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To be valid, it cannot incorporate the findings of fact and the conclusions of law of the lower court only by remote reference, which is to say that the challenged decision is not easily and immediately available to the person reading 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 embody 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.

¥say

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

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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

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, or in any franchise or privilege granted by the government, any of its subdivision, agencies or instrumentalities, including GOCCs or their subsidiaries. CHR Employees Association vs. CHR, G.R. No. 155336, November 24, 2004, the Commission on Human Rights, unlike the three Constitutional Commissions, does not enjoy 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 “automatic release” of approved annual appropriations to petitioner, a constitutional commission vested with fiscal autonomy should thus be construed to mean that no condition to fund releases to it may be imposed. However, petitioner’s claim that its budget may not be reduced by Congress below the amount appropriated for the previous year, as in the case of Judiciary, must be rejected. The provision in Section 3 of Article VIII, prohibiting the reduction in the appropriation for the Judiciary below the amount appropriated for the previous year does not appear in Section 5, Article IX-A. The plain implication of this omission is that Congress is not prohibited from reducing the appropriations of Constitutional Commissions below the amount appropriated for them for the previous

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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 statute; 3. Each expressly described as independent; 4. Chairmen and members are given fairly long term of office for seven (7) years; 5. Chairmen and members cannot be removed except by impeachment; 6. Chairmen and members may not be reappointed or appointed in an acting capacity; 7. Salaries of chairmen and members are relatively high and may not be decreased 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 calculated to strengthen their integrity; and 11. Commissions may appoint their own officials and employees in accordance with Civil Service Law.

¥say

Ma. Luisa Angeles Ramos

237

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

Certiorari Jurisdiction of the Supreme Court  Limited to decisions rendered in actions or proceedings taken cognizance of by the Commissions in the exercise of their adjudicatory 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)

CIVIL SERVICE COMMISSION

¥say

year.

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 preceding the appointment. Term: Seven (7) years without reappointment Scope of the Civil Service: Embraces all branches, subdivisions, instrumentalities and agencies of the Government, including government-owned and controlled corporations with original charters [Section 2(1), Article IX-B] Classes of Service:  Career Service—characterized by: a. Entrance based on merit and fitness to be determined by competitive examination or based on highly technical qualification; b. Opportunity for advancement; and c. Security of tenure.

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Composition: • 1 Chairman; • 2 Commissioners

Kinds of Career Service: • Open Career Positions—prior qualification via examination; • Closed Career Positions—those highly technical position; • Career Executive Service—Undersecretaries, Bureau Directors; • Career Officers—those appointed by the President like those in the foreign service; • Commissioned Officers and enlisted men of the AFP—governed by 238

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

• •

separate merit system; Personnel of GOCCs—whether performing governmental proprietary functions, with original charters; and Permanent laborers—whether skilled, semi-skilled, or unskilled.

or

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 their personal or confidential staff; • Contractual personnel or those whose employment in the government is in accordance 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 Position—one charged with laying down of principal or fundamental guidelines or rules; 2. Primary Confidential Position—one denoting not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which ensures freedom of intercourse without embarrassment or freedom from misgiving 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 Commission. 3. Highly Technical Position—requires the appointee to possess technical skill or training in the supreme or superior degree.

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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 with that of the appointing authority or subject to his pleasure, or which is limited to the duration of a particular project for which purpose employment was made.

¥say

 Non-Career Service—characterized by:

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

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

COMMISSION ON ELECTION Composition: • One (1) Chairman • Six (6) Commissioners

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Power to approve/disapprove appointments— The authority of CSC to approve appointments—to check whether or not the appointee possesses the appropriate civil service eligibility or the required qualification —does not include the authority to make the appointment itself or to direct 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 position and if it finds the person qualified, it must so attest. If not, the appointment must be disapproved. (Province of Camarines Sur vs. CA, G.R. No. 104639, July 14, 1995)

¥say

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 confidential positions ends upon loss of confidence, because their term of office lasts only 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.

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 preceding 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, Bernas, 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-C—Chairman and Commissioners of COMELEC are not subject to re-appointment

The prosecution of election law violators involves the exercise of the COMELEC’s administrative powers. Thus, the COMELEC en banc can directly approve the recommendation of its Law Department to file the criminal information for double registration against violators. There is no constitutional requirement 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 candidate has been proclaimed, taken his oath, and assumed office as a Member of the House of Representatives, the COMELEC’s jurisdiction over election contests relating to his election, returns, and qualifications ends, and the HRET’s own jurisdiction begins. In Quizon vs. COMELEC, G.R. No. 177927, February 17, 2008, the denial of due course or cancellation of one’s certificate of candidacy is not within the administration powers of the Commission, but rather calls for the exercise of its quasijudicial functions. Hence, the Court may compel COMELEC to exercise such discretion and resolve the matter but it may not control the manner of exercising such discretion. Powers and Functions: 1. Enforce and administer law and regulations relative to the conduct of elections, plebiscite, initiative, referendum or recall;

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The COMELEC’s exercise of its quasi-judicial powers is subject to Section 3, Article IXC 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.

¥say

(See the case of Matibag vs. Benipayo re: ad interim appointment)

2. Exclusive original jurisdiction over all contests relating to election, returns 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 officials by MTC; 4. Decide, except those involving right to vote, all questions affecting elections, including the determination of number and location of polling places, appointment 241

2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, 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 instrumentalities for exclusive purpose of insuring free, orderly, honest, peaceful and credible elections. which must present their platform or program government; accredit citizen’s arms; 7. File upon verified complaint or motu proprio petitions in court for inclusions or exclusions of voters; investigate and, where appropriate, prosecute cases of violations of election laws;

¥say

6. Register, after sufficient publication, political parties, organizations or coalitions

9. Submit to the President and Congress, comprehensive reports on conduct of each 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 of the Philippine Bar with at least ten (10) years practice of law; at no time shall all members belong to the same position; and 4. Not a candidate for any elective position in the election immediately preceding the appointment.

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8. Recommend to Congress effective measures to minimize election spending, limitation of places and prevent and penalize all forms of election frauds, offenses, malpractice and nuisance candidates; and

Term: Seven (7) years without reappointment 242

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

Jurisdiction of the Commission: No law shall be passed exempting any entity of the 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, CSC 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 Commission on Human Rights has no fiscal autonomy. (CHR Employees’ Association vs. CHR, G.R. No. 155336, July 21, 2006)

Article X LOCAL GOVERNMENT (In relation to Republic Act No. 7160—Local Government Code) Public Corporation—one created by the state either by general or special act for purposes of administration of local government or rendering service in the public interest.

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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 pertaining to government; 2. Keep general accounts of government and preserve vouchers and supporting papers; 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 for preservation and disallowance.

¥say

Ma. Luisa Angeles Ramos

De Facto Municipal Corporations—those 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Local Government—described as a political subdivision of a nation or state which is 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)

¥say

Ma. Luisa Angeles Ramos

Autonomous region—consists 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 of the constitution and the national sovereignty as well as the territorial integrity of the republic of the Philippines. Administrative regions—are mere groupings of contiguous provinces for administrative purposes. They are not territorial and political subdivisions like provinces, cities, municipalities and barangays. While the power to merge administrative regions is not expressly provided for in the Constitution, it is a power which has traditionally been lodged with the President to facilitate the exercise of the power of general supervision over local governments. Devolution—refers to the act by which the national government confers power and authority upon the various local government units to perform specific functions and responsibilities. [Section 17 (e, 2nd paragraph), LGC]

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Barangay—the basic political and territorial self-governing body corporate and is subordinate to the municipality or city of which it forms part.

Section 4, Article X—The President of the Philippines shall exercise general supervision over local governments. Provinces with respect to component cities and municipalities, and cities and municipalities with respect to component barangays shall ensure that the acts of their component units are within the scope of their prescribed powers and functions. (See the case of Judge Dadole on page 213) Section 6, Article X—A share in the national taxes collected by the national 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 government itself 244

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

Section 8 cannot be more clear and explicit—the term of office of elected local officials, shall be 3 years and no such officials shall serve for more than 3 consecutive 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) consecutive terms in the same position. (Atty. Rivera III vs. COMELEC, G.R. Nos. 167591 and 170577, May 9, 2007) Section 10—Creation, division, merger, abolition, substantial change of boundaries are not only subject to the criteria established in the local government code but also subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected. Authority to Create Local Government A local government unit may be created, divided, merged, abolished, or its boundaries substantially altered: 1. Province, City, Municipality or any other political subdivision—only by Act of Congress 2. Barangays—ordinance passed by the Sangguniang Panlalawigan or Panglungsod concerned in the case of any barangay within its territorial jurisdiction

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Section 7, Article X—Another 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 development, and it can also take the form of direct benefit for the population coming in the form, for instance, of cheaper electric power rates of energy sourced in the locality, or priority in employment. This can be effected either through national or local laws. Section 8, Article X—the term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such officials shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected.

¥say

might impose.

The creation or conversion of an LGU from one level to another level shall be based on verifiable indicators: a. Income—must be sufficient, to provide for all essential facilities and services commensurate with the size of its population; b. Population—based on total number of inhabitants within the territorial jurisdiction of the LGU; c. Land area—must be contiguous, unless it comprises two or more islands or is separated 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

sufficient to provide for such basic services and facilities.

P20,000,000.00

Municipality P2,500,000.00

250,000

25,000

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)

City

Highly urbanized

As to Income P100,000,000.00 P50,000,000.00 As to Population 150,000

As to Land Area 100 sq. kms. (not applicable if proposed city to be created composed of 2 or more islands)

200,000

Barangay 2,000 (except Metro Manila or in HUCs, 5,000)

100 sq. kms.

Requisites before a province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered: 1. It must be in accordance with the criteria established in the Local Government 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)

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Province

¥say

Division and Merger—LGU shall comply with the same requirements for their creation, provided it shall not reduce the income, population and land area of LGUs concerned to less than the minimum requirements prescribed; plebiscite be held in LGU affected; and the assets and liabilities of creation shall be equitably distributed between the LGUs affected and the new LGU.

Classification of Cities: 1. Highly urbanized cities as determined by law; 2. Cities not raised to the highly urbanized category but whose existing charters prohibit their voters from voting in provincial elections; and 3. Component cities—cities which still are under a province in some way. They cannot be denied a vote in the election of provincial officials.  Those in numbers 1 and 2 do not vote in provincial elections, they are independent 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Abolition—when the income, population or land area has been irreversibly reduced to less than the minimum standards prescribed for its creation, the LGU, thru a law or ordinance, may be abolished.

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 where 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 years—for governor, vice-governor, member of the SG panlalawigan, mayor, vice-mayor, or member of the SG panlungsod of HUC; b. 21 years—for mayor, vice-mayor of independent component cities (ICC), component cities (CC), or municipalities; c. 18 year—members of the SG panlungsod or SG Bayan, Punong Barangay, member of the Sangguniang Pambarangay d. 15 years but not more than 18 years—for SK

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1. Governor 2. Vice-Governor 3. Members of the Sangguniang Panlalawigan 4. Members of the Sangguniang Panlungsod 5. Mayor 6. Vice-Mayor 7. Members of the Sangguniang Bayan 8. Punong Barangay 9. Members of the Sangguniang barangay 10. Sangguniang Kabataan

¥say

LOCAL OFFICIALS

TERM OF OFFICE: THREE (3) YEARS MANNER OF ELECTION: 1. For governor, vice-governor, city or municipal mayor and vice-mayor, punong barangay—elected at large in their respective units; 2. For the SG panlalawigan, panlungsod and bayan of HUC—elected in their respective district; 3. For SK Chairman and Members—elected 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

DISQUALIFICATIONS: (Read Section 40, LGC) PROHIBITONS AND INHIBITIONS:

What kind of local autonomy is contemplated by the Constitution? What about the autonomy contemplated insofar as the autonomous regions are concerned? 1. The principle of local autonomy under the 1987 Constitution simply means

“decentralization.” It does not make local governments sovereign within the state or an “imperium in imperio.” Remaining to be an intra sovereign subdivision of one sovereign nation; but not intended, however, to be an “imperium in imperio,” the LGU is autonomous in the sense that it is given more power, authority, responsibilities and resources. Power which used to be highly centralized in Manila, is thereby deconcentrated, enabling especially the peripheral LGUs to develop not only at their own pace and discretion but also with their own resources and assets. (Alvarez vs. Guingona, Jr. 252 SCRA 695)

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Autonomy—is either decentralization of administration or decentralization of power. decentralization of administration decentralization of power  The central government delegates  It involves an abdication of political administrative powers to political power in favor of the local government subdivisions in order to broaden the base units declared autonomous. In that case, of government and in the process to make the autonomous government is free to local governments more responsive and chart its own destiny and shape its own accountable, and ensure their fullest future with minimum intervention from development as self-reliant communities central authorities. It amounts to selfand make them more effective partners in immolation, since in that event, the the pursuit of national development and autonomous government becomes social progress. At the same time, it accountable not to the central authorities relieves the central government of the but to its constituency. burden of managing local affairs and enables it to concentrate on national concerns. The President exercises general supervision over them, 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 substitute their judgments with his own.

¥say

(Read Sections 89, 90 and 94 of the LGC and Article V)

2. The constitutional guarantee of local autonomy in the Constitution refers to the administrative autonomy of LGUs or, cast in more technical language, the decentralization of government authority. 248

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

Batangas CATV, Inc. vs. CA, G.R. No. 138810, September 29, 2004, an ordinance enacted by virtue of the general welfare clause is valid, unless it contravenes the fundamental law of the Philippines, or an act of the Legislature, or unless it is against public policy, or is unreasonable, oppressive, partial, discriminating, or in derogation of common right. A local government unit cannot enact an ordinance or approve a resolution in violation 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 constitutional or legislative authorization, municipalities have no power to grant franchises. 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 discharge 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, maintain peace and order and promote the general welfare of the community and inhabitants. There is a duty to enforce the Ordinance as long as it has not been repealed by the Sanggunian or annulled by the courts.

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The dynamic and more important aspect of local autonomy must be measured in terms of the scope of the powers given to the local units.

¥say

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. Thus, the provision in the Constitution for an autonomous regional government with a basic structure consisting of an executive department and a legislative assembly and special courts with personal, family and property law jurisdiction in each of the autonomous regions. (Cordillera Broad Coalition vs. COA 181 SCRA 495)

DAR vs. Saranggani Agricultural Co., January 24, 2007, while the DAR retains the responsibility for approving or disapproving applications for land use conversion filed by individual landowners on their landholdings, the exercise of such authority should be confined to compliance with the requirements and limitations under existing laws and regulations. The DAR’s power in such cases may not be exercised in such a manner as to defeat the very purpose of the LGU concerned in reclassifying 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Have the powers of LTO to register motor vehicles and to issue driver’s 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 franchises 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 of the LTO under RA 4136 requiring the registration of all kinds of motor vehicles “used or operated on or upon any public highway” in the country. (LTO vs. City of Butuan, G.R. No. 131512, January 20, 2000) Is the MMDA a local government unit or public corporation endowed with legislative power? Is it a special metropolitan subdivision contemplated by Section 11, Article X of the Constitution? May it validly exercise police power? May it validly order the opening or closure of private subdivision streets to public vehicular 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 regulations in the implementation of the MMDA’s function. There is no grant of authority to enact ordinances and regulations for the general welfare of the inhabitants of the metropolis.

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The exercise of police power by the local government is valid unless it contravenes the fundamental law of the land, or an act of the legislature, or unless it is against public policy, or is unreasonable, oppressive, partial, discriminating, or in derogation of a common right. (Tayaban vs. People, G.R. No. 150194, March 6, 2007)

¥say

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)

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 the Constitution. The 250

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

LAW OF PUBLIC OFFICERS Public Office—the 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 creating power, an individual is invested with some sovereign functions of government to be exercised by him for the benefit of the public. (Fernandez vs. Sto. Tomas, 234 SCRA 546) Public office is a public trust—this requires that all government officials 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. Public trust—implies a fiduciary relationship between a public officer, who is a trustee, and the people, who are the beneficiaries, of a public office. Said relationship 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

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The MMDA has no power to enact ordinances for the welfare of the community. It is the LGUs, acting through their respective legislative councils, which possesses legislative power and police power. In the case at bar, the Sangguniang Panlungsod of Makati City did not pass any ordinance or resolution ordering the opening of Neptune Street, hence, its proposed opening by petitioner MMDA is illegal. (MMDA vs. Bel-Air Village Association, Inc. 328 SCRA 836)

¥say

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 elected 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 duties as may be assigned to him by the President, whereas in LGUs, the President merely exercises supervisory authority. This emphasizes the administrative character of MMDA.

251

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and demands that he takes no advantage of his position for his personal benefit or to the prejudice of the public.

Characteristics: 1. Public office is a public trust; 2. Public office is not a property and is outside the commerce of man. It cannot be subject of a contract. PUBLIC OFFICERS—individuals vested with public office. Under RPC, Art. 203—any person who, by direct provision of law, popular election or appointment by competent authority, shall take part in the performance of public functions in the Government of the Philippine Islands, or shall perform in said Government or in any of its branches, public duties as an employee, agent or subordinate official, of any rank or class, shall be deemed to be a public officer.

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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 under 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 control of a superior office or body; and 5. Must have permanency or continuity.

¥say

Created by: 1. The Constitution—e.g. Office of the President; 2. Valid statutory amendments; 3. By authority of law.

Under Sec. 2, RA 3019—the term includes elective and appointive officials and employees, 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 case of officers/employees in GOCCs, they are deemed “public officers” if their corporations 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Sec. 2 (14), Administrative Code—“officer” refers to a person whose duties not being a clerical or manual nature, involve the exercise of discretion in the performance of the functions of government. When used with reference to a person having authority to do a particular act or perform a particular function in the exercise of governmental power, “officer” includes any government employee, agent or body having authority to do the act or exercise that function.

¥say

“classified, unclassified or exempt service”—Career and Non-Career service under PD 807

ELIGIBILITY AND QUALIFICATION

Two (2) Senses: 1. Endowments, qualities or attributes which make an individual eligible for public office—the individual must possess the qualifications at the time of appointment or election and continuously for as long as the official relationship continues; a. Citizenship—public office is reserved only to citizens of the Philippines b. Residence—elective office or position; in Civil Law, residence and domicile are different. One can have 1 domicile but several residences. In Political Law, they are the same. ANIMUS REVERTENDI—the intent to return 3 kinds of domicile in Political Law: i. Domicile of birth (original) ii. Domicile of choice—the person left the original domicile without Animus Revertendi and established a new domicile iii. Domicile by operation of law— Marcos vs. COMELEC—former First Lady Imelda Marcos originally domiciled in Leyte. She married FM (from Ilocos). Under the Civil Code, it is the duty of the wife to live with her husband. She acquired the domicile of her husband, Ilocos Norte, by operation of law. But when her husband died, the wife has no more duty to live with her husband. She automatically reverts back to her original domicile, Leyte. Animus Revertendi is applied.

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(Legislative in nature—belongs to Congress)

253

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

Caasi vs. COMELEC—residence in a foreign country

Authority to Prescribe Qualification: 1. Constitution—ordinarily, EXCLUSIVE. The legislature may not increase or decrease 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 of a Chairman and four Members who must be natural-born citizens of the Philippines and a majority of whom shall be members of the Bar. The term of office and other qualifications and disabilities of the Members of the Commission shall be provided by law. Section 7 (2), Article VIII— The Congress shall prescribe the qualifications of judges 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. Statute—Congress 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.

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2. Act of entering into the performance of functions of public office—failure of an officer to perform an act required by law could affect the officer’s title to the given office. (example: taking the oath of office)

¥say

c. Age d. Political Affiliation—as a rule, it is not a qualification. Exceptions: in Party-List, Membership in the Electoral Tribunal, Commission on appointment

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 considered 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 office 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 proclaimed 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, Bernas, 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 sufficient basis to enjoin him from assuming office or from discharging his functions.

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

A: Yes, A’s acts are considered valid, insofar as third parties and the general public are concerned/rely on his acts—acts of a De Facto officer.

¥say

Sec. 5 (1), Art. XVI—All members of the armed forces shall take an oath or affirmation to uphold and defend this Constitution.

DISQUALIFICATIONS The legislature has the right to prescribe disqualifications in the same manner that it can prescribe qualifications, provided that the prescribed disqualifications 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 GOCCs or in any of its subsidiaries. 2. Sec. 7 (1), Art. IX-B—refers to elective officials—“No 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 7227—creating the SBMA, one provision states that Mayor Dick Gordon shall be appointed as Chairman and Chief Executive of the SBMA. The SC ruled for the constitutionality of his appointment as the first Administrator of the SBMA. He was allowed 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.

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(See the case of Office of the Ombudsman vs. CSC, G.R. No. 162215, July 30, 2007)

Hence, Mayor Gordon’s appointment is valid. 255

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

3. Sec. 7 (2), Art. IX-B—Unless otherwise allowed by law or by the primary

Specific Disqualifications under the Constitution 1. Sec. 13, Art. VII—The President, VP, Member of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in the Constitution, hold any 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 thereof, including GOCCs or their subsidiaries, during his term without forfeiting his seat. Neither, shall he be appointed to any office which may have been created or the emoluments thereof increased during the term for which he was elected. Incompatible 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, including GOCCs or their subsidiaries, during his term without forfeiting his seat.

Forbidden Office - Neither, shall he be appointed to any office that has been created or the emoluments thereof have been increased during the term for which he was elected.

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National Amnesty Commission vs. COA, G.R. No. 156982, September 8, 2004, when another 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 violation, because such other office does not comprise “any other position”. The ex-officio position is actually and, in legal contemplation, part of the principal office. But the official concerned is not entitled to receive additional compensation for his services in the said position because his services are already paid for and covered by the compensation attached to his principal office.

¥say

functions of his position, no appointive officials shall hold any other office or employment in the Government or any subdivision, agency or instrumentality thereof, including GOCCs or their subsidiaries.

- The purpose is to prevent him from -the purpose is to prevent trafficking in owing loyalty to another branch of the public office. government, to the detriment of the independence of the legislature and the doctrine of separation of powers. -what is prohibited is the simultaneous -what is prohibited is the appointment holding of that office and the seat in 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Congress. Any legislator may hold he was elected, when such office was another office or employment in the created or its emoluments were government provided he forfeits his increased. seat in the Congress. law shall not be designated to any agency performing quasi-judicial or administrative functions. 4. Sec. 2, Art. IX-A—No Member of a Constitutional Commission shall, during his tenure, hold any other office or employment. The same disqualification applies to the Ombudsman and his Deputies—Sec. 8, Art. XI. 5. Sec. 11, Art. XI—The Ombudsman and his Deputies shall not be qualified to run

for any office in the election immediately succeeding their cessation from office.

¥say

3. Sec. 12, Art. VIII—The Members of the SC and of other courts established by

Constitutional Commissions, the Ombudsman and his Deputies must not have been candidates for any elective position in the elections immediately preceding their 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. VII—the spouse and relatives by consanguinity or affinity within the

fourth civil degree of the President shall not, during his tenure, be appointed as Members of the Constitutional Commissions, or the Office of the Ombudsman, 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 Presidential Legal Counsel (CPLC) are unconstitutional. The concurrent appointment to these offices is in violation of Section 7 (2), Article IX-B of the Constitution, since these are incompatible offices. The duties of the CPLC include giving independent and impartial legal advice on the actions of the heads of various executive departments and agencies and reviewing investigations involving heads of executive departments. Since the actions of the PCGG Chairman, a head of an executive agency, are subject to the review of the CPLC, such appointments would be incompatible.

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6. Sec. 1, Art. IX-B; Art. IX-C; Sec. 1, Art. IX-D; Sec. 8, art. XI—Members of the

Disqualifications under the Local Government Code: (Section 40, LGC) The following persons are disqualified from running for any elective local position: 257

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

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 should be manifested by some act or acts independent of and done prior to filing his 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 of the qualifications that a candidate must possess. The mere filing of his COC for 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 only those who flee after conviction to avoid punishment but likewise those who, after being charged in the Philippines or abroad, flee to avoid prosecution. Intent 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 the time of flight. He is not a fugitive from justice when, at the time of departure 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 Rodriguez five (5) months after he had returned to the Philippines. What is controlling is the intent to evade the California court.

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1. Those sentenced by final judgment for an offense involving moral turpitude or 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 the 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 right to reside abroad and continue to avail of the same right after the effectivity of this Code; 7. The insane or feeble-minded.

¥say

Ma. Luisa Angeles Ramos

DE FACTO OFFICERS— 258

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

¥say

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;

c. Known appointment or election but void because of ineligibility of officer or want of authority of appointing or electing authority or irregularity in appointment or election not known to the public; and d. Known appointment of election pursuant to unconstitutional law before declaration of unconstitutionality.

De Facto Officer the person is in actual possession of office but he merely has a color of title

De Jure Officer he has lawful title to hold office although he may be unlawfully deprived of his office

Usurper/Intruder he is in actual possession of the office without title or colorable title

acts are valid insofar as 3rd his acts are valid parties and the general public is concern but he is not suppose to benefit from his acts—against public policy.

his acts are entirely void

challenged in a direct proceeding where the title

can be attacked collaterally

challenged in a direct proceeding thru quo

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b. Known or valid appointment or election but officer failed to conform with legal requirements;

259

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

Q: Is a de-facto officer lawfully entitled to the salary of the office he is occupying? 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 individuals 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 received by the latter during the time of his wrongful tenure, even though he (the de facto officer) occupied the office in good faith and under color of title. Duties of a public officer: A. Constitutional Duties a. To be accountable to the people; to serve them with utmost responsibility, integrity, loyalty and efficiency; to act with patriotism and justice; and to lead 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 (Section 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 General’s duty to represent the government, its offices and instrumentalities and its officials and agents—except in criminal cases or civil cases for damages arising from felony—is mandatory. Although he has discretion in choosing whether or not to prosecute a case or even withdraw therefrom, such discretion 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, more so if they are erroneous or irregular (Sharp Int’l Mktg. vs. CA, 154 SCRA 88).

¥say

warranto; cannot be attacked collaterally

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will be the principal issue

260

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

COMMENCEMENT OF OFFICIAL RELATIONS A. By Appointment B. By Election APPOINTMENT— The selection, by authority vested with power, of individual who is to perform functions 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 required of the appointing authority has been complied with and its acceptance thereafter by the appointee in order to render it effective. Appointment necessarily calls for an exercise of discretion on the part of the appointing authority.

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Rights of public officers: 1. Right to office 2. Right to salary 3. Right to preference in promotion 4. Right to vacation and sick leave 5. Right to maternity leave 6. Right to retirement pay 7. Others—right to reimbursement for expenses incurred in the due performance of his duty; right to be indemnified; right to longevity pay.

¥say

Prohibitions: 1. Engaging in partisan political party except to vote 2. Additional or double compensation 3. Prohibition against loans 4. Laborers—shall not be assigned to perform clerical duties 5. Detail or reassignment 6. Nepotism

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 thereof. Commission—is the written evidence of appointment. Designation—is the imposition of additional duties, usually by law, on a person already in public office. It presupposes that the person has already been appointed and merely given additional function/tasks. 261

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

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 position 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 the time of appointment. 5. Regular—one made by the President while Congress is in session and becomes

effective after the nomination is confirmed by the Commission on Appointment and continues until the end of the term. 6. Ad-interim— a. Recess—one made while the Congress is not in session, before confirmation by the Commission on Appointment; immediately effective; and ceases to be valid if disapproved or bypassed by CA upon the next adjournment of Congress; b. Midnight—made by the President before his term expires, whether or not it is confirmed by the CA Matibag vs. Benipayo, G.R. No. 149036, April 2, 2002—(See discussion under Article VII)

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Classification of appointments: 2. Permanent—extended to a person possessing the requisite qualification for the position and thus enjoys security of tenure. 3. Temporary—acting appointment given to a non-civil service eligible; is without a definite tenure and is dependent upon the pleasure of the appointing power; 4. Provisional—one which may be issued upon:

¥say

 A mere designation does not confer security of tenure, as the person designated occupies the position only in an acting capacity. (Sevilla vs. CA, 209 SCRA 637)

General Manager, PPA vs. Monsarate, G.R. No. 129616, April 17, 2002, once an appointment is issued and the moment the appointee assumes a position in the civil service under a complete appointment, he acquires legal, not merely equitable, right to the position which is protected not only by statute, but also by the Constitution, and cannot be taken away from him either by revocation of the appointment, or by removal, except for cause, and with previous notice and hearing. Acceptance by appointee—pending such acceptance, which is optional to the appointee, the appointment may still be validly withdrawn. Appointment to a public office cannot be forced upon citizen except for purposes of defense of the State under Section 4, Article II of the Constitution, as an exception to the rule against involuntary servitude. 262

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

Double Appointment—not prohibited as long as the positions involved are not incompatible, except that the officer or employee appointed cannot receive additional or double compensation unless specifically authorized by law. Primarily confidential Positions—denotes not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which insures freedom of intercourse without embarrassment or freedom from misgivings of betrayals 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. (Santos vs. Macaraig, 208 SCRA 74) Next-in-Rank Rule—refers to a position which, by reason of the hierarchical arrangement of positions in the department or agency or in government, is determined to 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 position previously determined to be next-in-rank to the vacancy proposed to be filled and who meets the requisites for appointment thereto as previously determined by the appointing authority and approved by the Civil Service Commission.

Page 2637/12/2008

Acting appointment—a temporary appointment and revocable in character.

¥say

Discretion of appointing authority—appointment 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 appointment, should possess the minimum qualification requirements, including Civil Service eligibility prescribed by law for the position. This discretion also includes the determination of the nature or character of the appointment, i.e., whether the appointment is temporary or permanent. (Luego vs. CSC, 143 SCRA 327)

 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 Transfer—a lateral movement in the same position Promotion—is a vertical movement of position 263

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

Elective local official—3 years and may serve only for 3 consecutive terms ---------------------1988—Capco was a Vice-Mayor 1989—the Mayor (Borja, Sr.) died, Capco succeeded as Mayor 1992—Capco ran for Mayor and won 1995—he ran for re-election and won again 1998—Is he still qualified to run? The SC held that Mayor Capco is still qualified in 1998 local election. The right 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 Pateros) ----------------------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 interruption in the continuity of his service of office for which he was elected.

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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, for the same position; 2. He had fully served the three (3) consecutive terms.

¥say

Ma. Luisa Angeles Ramos

---------------------1992 1995 1998

X was elected as Mayor

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

Doctrine of Forgiveness or Condonation—when the people have elected a man to office, it must be assumed that they did this with knowledge of his life and character, 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 administrative conduct committed during a prior term, since his re-election to office operates as a condonation of the officer’s previous conduct to the extent of cutting 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 misconduct committed during his prior term of office. The rationale for this holding 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 misconduct. If, armed with such knowledge, it still reelects him, such re-election is considered a condonation of his past misdeeds. 1992 1995 Hagedorn was elected as Mayor 1998

Page 2657/12/2008

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 opponent 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.

¥say

No. he has been elected for 3 consecutive times for the same position. Section 40 (b) of the LGC provides for his disqualification—removed as a result of administrative case. However, if he appealed, he is still qualified because there is no finality of judgment yet. ---------------------1992 1995 X 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

June 30, 2001—end of Hagedorn’s term for mayor

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 immediate election that prohibits Hagedorn from running for mayor is the next regular election after his 3 consecutive terms has ended, the 2001 election.

¥say

July 2, 2002—resolution calling for recall of Mayor Socrates September 2002—COMELEC set special election for Puerto Princesa City; Hagedorn filed his COC for mayor. Was he qualified?

He won in the September 2002 recall election. He will continue the term of Socrates. His term will end on June 30, 2004—a 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 applying the disqualification. Otherwise, Hagedorn will be allowed to serve for more than nine (9) years.

 The above hypothetical problem was only an obiter dictum in the case of Socrates vs. COMELEC.

Page 2667/12/2008

“any subsequent election”—is not covered by the prohibition.

The rule is, service of the recall term will not interrupt the 3-consecutive term rule. In the case of Mendoza vs. COMELEC, the SC did not abandon the ruling in Socrates because it was merely an obiter dictum. --------------------------1995—Francis Ong ran for mayor, he won 1998—He ran and won again. Alegre filed a protest. 2001—Ong 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

There was no interruption or break in the continuity of Ong’s service respecting the 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, Camarines 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 the May 8, 1995 elections. He then ran again for the same position in the May 1995 elections, won and discharged his duties as Mayor. However, an election protest was filed before RTC of Zambales. In a decision dated July 9, 1997, it was held that there was a failure of elections and the position for mayor as vacant. Lonzanida assumed the office and performed his duties up to March 1998 only. During the 1998 elections, Lonzanida ran again for mayor. A petition to disqualify under the three-term limit rule was filed and was eventually granted. The Court held that Lonzanida cannot be considered as having been duly elected to the post in 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 fact vacated) his post before the expiration of the term. There was an involuntary severance from office as a result of legal processes. In fine, there was an effective interruption of the continuity of service.

Page 2677/12/2008

Held: The assumption of office from July 1, 1998 to June 30, 2001 constitutes “service for the full term” and should be counted as a full term served in contemplation of the 3term limit prescribed by the Constitution and LGC, barring local elective 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.

¥say

2004—Ong ran again. Alegre questioned. Ong alleged that his proclamation as mayorelect in the May 1998 election was contested and eventually nullified by the RTC of Daet. Issue: Whether or not Ong’s assumption of office as Mayor from July 1, 1998 to June 30, 2001 may be considered as one full term service in the context of the consecutive 3term limit rule?

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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ranking in the Sanggunian shall be determined on the basis of the proportion of votes obtained by each winning candidate to the total number of registered voters in each district in the immediately preceding local election. Governor

Mayor

Vice Governor

Vice Mayor

Punong Barangay

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 members—it shall be resolved by the drawing of lots.  The successors shall serve only the unexpired terms of their predecessors. Section 44, LGC—Filling the vacancy Last-in-rank—the one who will replace him must come from the same political party of the one who caused the vacancy, upon nomination of the party.

Page 2687/12/2008

1. One who illegally terminated, by legal fiction, is deemed not to have vacated 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.

¥say

Ma. Luisa Angeles Ramos

Who shall appoint? 1. President—through the Executive Secretary—in case of permanent vacancies in the Sangguniang Panlalawigan and the Sangguniang Panlungsod of HUC and independent component cities; 2. Governor—in case of the Sangguniang Panglungsod of component cities and the Sangguniang Bayan; 3. City or municipal mayor—in case of Sanggguniang Barangay—upon recommendation of the Sangguniang Barangay concerned. 268

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

Fariñas vs. Barba, the last-in-rank sangguniang bayan member resigned. Mayor Barba, upon recommendation of the Sangguniang Bayan, appointed somebody. However, Gov. Fariñas also appointed somebody, upon recommendation of the Sangguniang Panlalawigan. The SC held that neither is entitled to occupy the vacancy. It should have been Gov. Fariñas who should appoint but the sanggunian who recommended should be the Sangguniang Bayan where the vacancy took place. Navarro vs. CA, March 2001 Mayor— V-Mayor— 1. 2. 3. 4. 5. 6. 7. 8.

Lakas-NUCD Lakas-NUCD

SB Member SB Member SB Member came from Reforma Party SB Member SB Member SB Member—Lakas NUCD SB Member—Reforma Party SB Member—Lakas NUCD

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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.

¥say

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

The Mayor died. Vice Mayor succeeded. The #1 SB Member became the Vice Mayor. The #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 shall be filled by Reforma Party to maintain party representation in the Sanggunian as willed by the electorate.

269

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

Who appoints the Barangay Secretary or Treasurer? In the case of Alquisola, Sr. vs. Gallardo Ocol, August 1999, the SC held that the 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 within 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 recommending authority is. To constitute a violation of the law, it suffices that 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. Dacoycoy, 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 which event the employment or retention therein of both husband and wife may be allowed.

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The Vice-Governor acted as Governor. Can he (V-Governor) preside over the sessions of Sangguniang Panlalawigan? No. The creation of temporary vacancy in the office of the governor creates a corresponding vacancy in the office of the vice-governor. Section 49-d, LGC, the members present and constituting a quorum shall elect from among themselves a temporary presiding officer. The rule on permanent vacancy should not be applied to temporary vacancy.

¥say

Gamboa, Jr. vs. Aguirre, July 1999

In Section 79 of the Local Government Code, the prohibition is up to the 4th civil degree of consanguinity or affinity. 270

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

Debulgado vs. CSC, it was alleged that the law applies only to original appointment 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 limit—compulsory retirement age: 70 years of age for members of the

¥say

Laurel V vs. CSC, Governor Laurel appointed his brother as Civilian Security Officer, hence it is exempted, no violation as it is primarily confidential in character. However, the governor subsequently designated the same brother as Acting Provincial Administrator. The SC ruled that appointment and designation are two different matters. But for purposes of the law on nepotism, the two are now the same. Hence, there is now a violation of the law on nepotism.

Term—the period of time during which a public officer has the right to hold the public office Tenure—the period of time during which the public officer actually held office

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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

Hold-over principle—[See the case of Lecaroz vs. SB (1999)]—in the absence of any express or implied constitutional or statutory provision to the contrary, the public officer is entitled to hold his office until his successor shall have been duly 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 the succeeding term. Where this provision is found, the office does not become vacant upon the expiration of the term if there is no successor elected and qualified to assume it, but the present incumbent will carry over until his successor is 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

RECALL—the termination of official relationship of an elective official for 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 once during his term of office for loss of confidence. 2. No recall shall take place within one year from the date of the official’s 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 Election is not a regular election within the contemplation of the LGC as would bar the holding of a recall election. Neither will the recall election of the Mayor 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 election must be one where the position of the official to be recalled is actually contested and to be filled by the electorate.

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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, for any period of time, wholly vacant or unoccupied by one lawfully authorized to exercise its functions. This is founded on obvious considerations of public policy, for the principle of holdover is specifically intended to prevent public convenience 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)

¥say

Ma. Luisa Angeles Ramos

RESIGNATION— is the act of giving up or the act of a public officer by which he declines his office and renounces the further right to use it. It is an expression of the incumbent in some form, expressed or implied, of the intention to surrender, renounce, and relinquish the office and the acceptance by competent and lawful authority. To constitute a complete and operative resignation from public office, there must be: 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

3. Acceptance by the proper authority.

ABANDONMENT OF OFFICE—it is the voluntary relinquishment of an office by the holder, with the intention of terminating his possession and control thereof. Indeed, it is a specie of resignation; while resignation in general is a formal relinquishment, abandonment is a voluntary relinquishment through nonuser. It springs from and is accompanied by deliberation and freedom of choice. The concomitant effect is that the former holder of an office, can no longer legally repossess it even by forcible re-occupancy. ABOLITION OF OFFICE—it connotes an intention to do away with such office wholly and permanently, as the word “abolished” denotes. Where one office is abolished and replaced with another office vested with similar functions, the abolition is a legal 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 abolition 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 the 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 duties and functions of the two positions are basically the same.

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Estrada vs. Desierto, G.R. Nos. 146710-15, March 2, 2001, resignation is a factual question and its elements are beyond quibble: there must be an intent to resign and the intent must be coupled by acts of relinquishment. The validity of a resignation 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 resignation is clear, it must be given legal effect.

¥say

The last one is required by reason of Article 238 of the revised Penal Code. (Sanggguniang Bayan of San Andres, Catanduanes vs. CA, 284 SCRA 276)

Canonizado vs. Aguirre, G.R. No. 133132, January 25, 2000, the substantial identity in the functions between the two offices was indicia of bad faith in the removal of petitioner pursuant to a re-organization. REORGANIZATION—takes place when there is alteration of the existing structure of government offices or units therein, including the lines of control, authority and responsibility between them. It involves a reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy of functions. Naturally, it may result in the loss of one’s position through removal or abolition of an office. 273

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

Circumstances evidencing bad faith in the removal of employees as a result of reorganization and which may give rise to a claim for reinstatement or reappointment: 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 functions 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 functions as the original offices; and 5. Where the removal violates the order of separation provided for by Section 2 and of RA 6656.

¥say

To be valid, it must also pass the test of good faith.

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 employee who is charged may be separated, for obvious reasons, from the scene of his 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 latter 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.

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GROUNDS FOR REMOVAL AND SUSPENSION—(Section 23, Rule XIV, Omnibus Rules

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, Bernas, 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

Pending investigation (Respondent is not entitled to back wages)

Pending Appeal

(Reinstatement with full payment payment of back salaries)

Gov. Plaza vs. CA, G.R. No. 138464, January 18, 2008, the law provides for preventive suspension of appointive local official and employees pending investigation of the charges against them. The suspension given to private respondents, cannot, 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 salaries, private respondents must not only be found innocent of the charges, but their suspension must likewise be unjustified. b. Local Government Code— i. Sec. 63—those holding local elective office

Preventive Suspension placed by: 1. Mayor—concerning the elective barangay officials 2. Governor

municipal elective officials Component city elective official

3. President

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“payment of back salaries”

¥say

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

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 election—PS shall be lifted automatically ii. Sec. 85—those appointed officials 275

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

Duration: maximum of 60 days c. Ombudsman Act—RA 6770 Duration: Maximum of 6 months

Authority to impose: i. Court where the information was filed Luciano vs. Provincial Governor, since the law is silent, the court where the information was filed shall impose the preventive suspension ii. Salary Grade 27 or over—Sandiganbayan iii. Below Salary Grade 27—RTC  It is mandatory for the court to impose the preventive suspension. However, it is 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 analogy the Civil Service Law, the maximum duration would be 90 days.

Deloso vs. SB Bayot vs. SB Segovia vs. SB Santiago vs. SB

Section 13, RA 3019 does not state that the public officer may be suspended in the office where he committed the crime. The term “office” indicates that it applies to “any other office”.

Paredes vs. SB Santiago vs. SB

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

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a. Section 13, RA 3019—Suspension and loss of benefits

¥say

2. Preventive suspension in Criminal Cases

276

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

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¥say

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

Justices of the Sandiganbayan cannot be removed by impeachment.

 Impeachment of President—the 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 cases of impeachment.

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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

¥say

Public office is a public trust, and as such, the same is governed by law, and cannot be made the subject of personal promises or negotiations by private persons. 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)

Process: 1. Verified complaint filed by any member of the House or any citizen 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 inclusion. If the verified complaint is filed by at least 1/3 of all its members, the same shall 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

5.

6. 7.

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 members of the Senate. Effect of Conviction— 1. Removal from office; 2. Disqualification to hold any other office under the Republic of the Philippines; 3. Party convicted shall be liable and subject to prosecution, trial and punishment according to law. Limitation: 1. Not more than one impeachment case shall be initiated against the same official 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 with 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, it follows that the “Agreement” between the PCGG and the third party is likewise a nullity, and there can be no cause of action against the Republic.

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4.

proceed. The Committee, after hearing, and by majority vote of all its members, shall submit its report to the House together with the corresponding resolution; Placing on calendar the Committee resolution within ten (10) days from submission; Discussion on the floor of the report; A vote of at least 1/3 of all the members of the House shall be necessary either to affirm a favorable resolution with the Articles of Impeachment of the Committee or override its contrary resolution.

¥say

Ma. Luisa Angeles Ramos

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 provides that the “right of the State to recover properties unlawfully acquired by public officials or employees, from them or from their nominees as transferees, shall not be barred by prescription, laches, or estoppel. This provision does not seem to indicate that what is 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 prescribe 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Legislative bodies cannot impose the administrative punishment of removal from office because the power to remove local elective officials has been exclusively granted to the proper courts. (Sanggguniang Barangay of Don Mariano Marcos 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 Appeals  Sits in five (5) Divisions of three (3) members each Decision and Review— Unanimous vote of all three (3) members shall be required for 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 positions in the government, whether in a permanent, acting or interim capacity at the time of the commission of the offense:

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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 Senate while an impeachment proceeding is one that is initiated in the House of Representatives. For purposes of applying the one-year bar rule, the proceeding is “initiated” or begins when a verified complaint is filed and referred to the Committee on Justice for action.

¥say

in this instance, BP 195, providing for a 15-year prescriptive period and thereby modifying to the above extent the 10-year prescriptive period under RA 3019.

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, assessors, 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

9.

C. Other offenses or felonies whether simple or complex with other crimes 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 writs of

mandamus, prohibitions, certiorari, habeas corpus, injunction and other ancillary writs and processes in aid of its appellate jurisdiction. Provided, that jurisdiction over these petitions shall be not exclusive of the Supreme Court.  Exclusive Appellate Jurisdiction over final judgments, resolutions or orders of

RTC whether in the exercise of their own original jurisdiction or their appellate jurisdiction. (RA 8249)

THE OMBUDSMAN • •

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6. 7. 8.

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 director and those holding the rank of senior superintendent or higher; vi. City/provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and special prosecutor; vii. Presidents, directors, trustees, or managers of GOCC’s state universities or educational institutions or foundations. Members of Congress and officials thereof with SG27 and up; Members of the Judiciary without prejudice to the Constitution; Chairmen and members of the Constitutional Commissions without prejudice to the Constitution; and All other national and local officials with SG27 or higher.

¥say

Ma. Luisa Angeles Ramos

The champion of the citizens and protector of the people. Tasked to entertain complaints addressed to him against erring public officers and 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

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 control of any business which in any way may be affected by the functions of his office; 3. Shall not be financially interested, directly or indirectly, in other contract with, or in any franchise or privilege granted by the government, any of its subdivision, agencies or instrumentalities, including GOCCs or their subsidiaries. 4. Shall not be qualified to run for any office in the election immediately succeeding 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, Article XI) Buenesada vs. Flavier, G.R. No. 106719, September 21, 1993, the power to investigate also includes the power to impose preventive suspension. This is different from the power to recommend suspension. The latter is suspension as a penalty; preventive suspension is not a penalty.

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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 immediately preceding election.

¥say

appointed

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 virtually free from legislative, executive or judicial intervention. The Supreme Court consistently refrains from interfering with the exercise of its powers, and respects the initiative and independence inherent in the Ombudsman who, beholden to no one, acts as the champion of the people and the preserver 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

2. The Ombudsman is clothed with authority to conduct preliminary investigation

Perez vs. Sandiganbayan, G. R. No. 166062, September 26, 2006, the incumbent Tanodbayan (called Special Prosecutor under the 1987 Constitution and who is supposed to retain powers and duties NOT GIVEN to the Ombudsman) is clearly without authority to conduct preliminary investigations and to direct the filing of criminal cases with the Sandiganbayan, except upon orders of the Ombudsman. Suspension under the Ombudsman Act vis-à-vis the Local Government Code: o In order to justify the preventive suspension of a public official under Section 24 of RA 6770, the evidence of guilt should be strong, and:  The charge against the officer or employee should involve dishonesty, oppression or grave misconduct or neglect in the performance of duty;  The charges should warrant removal from the service; or  The respondent’s continued stay in the office would prejudice the case filed against him. o The Ombudsman can impose the 6-month preventive suspension to all public officials, whether elective or appointive, who are under investigation.

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Office of the Ombudsman vs. CSC, G.R. No. 162215, July 30, 2007, since the responsibility for the establishment, administration and maintenance of qualification 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 qualification standards and approving them. The CSC cannot substitute its own standards for those of the department or agency, specially in a case like this in which an independent constitutional body is involved.

¥say

and prosecute all criminal cases involving public officers and employees, not only those within the jurisdiction of the Sandiganbayan but those within the jurisdiction of the regular courts as well. (Uy vs. Sandiganbayan, G.R. No. 105965-70, March 20, 2001)

o On the other hand, in imposing the shorter period of sixty (60) days of preventive 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 committed 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 the 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Article XII NATIONAL ECONOMY AND PATRIMONY Section 1, Article XII—Goals: 1. More equitable distribution of wealth 2. Increased wealth for the benefit of the people 3. Increased productivity.

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Office of the Ombudsman vs. CA, G.R. No. 168079, July 17, 2007, the SC upheld the constitutionality of Sections 15, 21 and 25 of RA 6770, thus affirming that the 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 Ombudsman has the constitutional power to directly remove from the government service an erring public official, other than a member of Congress and the Judiciary.

¥say

other evidence. (Miranda vs. Sandioganbayan, G.R. No. 154098, July 27, 2005)

REGALIAN DOCTRINE—Section 2, Article XII All lands of the public domain, waters, minerals, coals, petroleum and other mineral oils, all forces of potential energy, fisheries, forests, or timber, wildlife, flora and fauna, and natural resources belong to the State. With the exception 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Private Lands— General Rule: No private land shall be transferred or conveyed except to individuals, corporations or associations qualified to acquire or hold lands of the public domain. Exceptions: 1. Foreigners who inherit through intestate succession; 2. Former natural-born citizen may be a transferee of private lands subject to limitations provided by law; 3. Ownership in condominium units; 4. Parity right agreement, under 1935 Constitution. Stewardship Doctrine—private property is supposed to be held by the individual only as a trustee for the people in general, who are its real owner. Filipino First Policy—in the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos. (2nd paragraph, Section 10, Article XII)

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Classification of Lands of the Public Domain: 1. Agricultural; 2. Forest or timber; 3. Mineral lands; and 4. National parks.

¥say

such as a presidential proclamation or an executive order, or an administrative action, investigation reports of the Bureau of Lands Investigator or a legislative act or statute. Until then, the rules on confirmation of imperfect title do not apply. A certification of the Community Environment and Natural Resources Officer (CENRO) in the DENR stating that the land subject of an application is found to be within the alienable and disposable site in a land classification project map is sufficient evidence to show the real character of the land subject of the application. (RP vs. Candy Maker, Inc., G.R. No. 163766, June 22, 2006)

This provision is self-executing. It is mandatory, positive command which is complete in itself and which needs no further guidelines or implementing laws or rules for its enforcement. From its very words the provision does not require 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 concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos, it means just that— qualified Filipinos must be preferred. (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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Temporary Take Over of Business Affected with Public Interest— The State may temporarily take over or direct the operation of any privately owned 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 business and not to the ownership thereof. As such, the government is not required to compensate the private entity-owner of the said business as there is no transfer of ownership, whether permanent or temporary. The private entity-owner affected by the temporary take over cannot, likewise, claim for just compensation for 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 eminent 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 II—the State recognizes and promotes the rights of indigenous peoples within the framework of national unity and development.

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some commercial enterprise with all of them generally contributing assets and sharing risks. Considering more of a partnership, a joint venture is governed by the laws on contracts and on partnership. The joint venture created between National Investment and Development Corporation (NIDC) and Kawasaki falls within the purview of an “association” pursuant to Section 5 of Article XIV of the 1973 Constitution and Section 11 of Article XII of the 1987 Constitution. Consequently, a joint venture that would engage in the business of operating a public utility, such as shipyard, must observe the proportion of 60%-40% Filipino-Foreign capitalization. (JG Summit Holdings, Inc. vs. CA, 345 SCRA 143)

¥say

Ma. Luisa Angeles Ramos

2. Section 5, Article XII—the State, subject to the provisions of the Constitution

and national development policies and programs, shall protect the rights of indigenous 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 property rights or relations in determining the ownership and extent of ancestral domain. 3. Section 1, Article XIII 286

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

4. Section 6, Article XIII—the State shall apply the principles of agrarian reform

rights 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 XVI—the Congress may create a consultative body to advise the President on policies affecting indigenous cultural communities, the majority 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 used 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 continuously lived as an organized community on communally bounded and defined territory. These groups of people have actually occupied, possessed and utilized their 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 differentiated from the Filipino majority. The ICCs/IPs also include their descendants who inhabited the country at the time of conquest or colonization, who have been displaced from their traditional territories or who may have resettled outside their ancestral domains.

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5. Section 17, Article XIV—the State shall recognize, respect, and protect the

¥say

stewardship, whenever applicable in accordance with law, in the disposition or utilization of other natural resources, including lands of the public domain under lease or concession suitable to agriculture, subject to prior rights, homestead rights of small settlers, and the rights of indigenous cultural communities to their ancestral lands.

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 lands, and defines the extent of these lands and domains. The ownership given is the 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 right to self-governance and empowerment, social justice and human rights; the right to preserve and protect their culture, traditions, institutions and community intellectual rights, and the right to develop their own sciences and technologies. 287

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

Ancestral Lands—are lands held by the ICCs/IPs under the same conditions as ancestral 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 limited to residential lots, rice terraces or paddies, private forests, swidden farms 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 respect to ancestral lands only. Native Title—refers to ICCs/IPs pre-conquest rights to lands and domains held under a claim of private ownership as far back as memory reaches. These lands are deemed 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 recognition, when solicited by ICCs/IPs concerned, shall be embodied in a Certificate of Ancestral Domain Title (CADT), which shall recognize the title of the concerned ICCs/IPs over the territories identified and delineated.

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Ancestral domains—are all areas belonging to ICCs/IPs held under a claim of ownership, occupied or possessed by ICCs/IPs by themselves or through their ancestors, communally or individually since time immemorial, continuously until the present, except when interrupted by war, force majeure or displacement by force, deceit, stealth or as a consequence of government projects or any other voluntary dealings with government and/or private individuals or corporations. It comprises lands, inland waters, coastal areas, and natural resources therein and includes ancestral lands, forests, pasture, residential, agricultural, and other lands individually owned whether alienable or not, hunting grounds, burial grounds, worship areas, bodies of water, mineral and other natural resources. 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 and traditional activities, particularly the home ranges of ICCs/IPs who are still nomadic and/or shifting cultivators. Section 3(a), IPRA

¥say

Ma. Luisa Angeles Ramos

Like a torrens title, a CADT is an evidence of private ownership of land by native title. Native title, however, is a right of private ownership peculiarly granted to ICCs/IPs over their ancestral lands and domains. The IPRA categorically 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, indisputably 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Ownership by virtue of native title—presupposes 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 successor-ininterest, the US and the Philippines Government. There has been no transfer of title from the State as the lands has been regarded as private in character as far back as memory goes. Ownership of the land by acquisitive prescription—against the State involves a conversion of the character of the property from alienable public land to private land, which presupposes a transfer of title from the State to a private person. Jus Regalia—private title to the land must be traced to some grant, express or implied, from the Spanish Crown or its successors, the American Colonial government and thereafter, the Philippine Republic. The belief that the Spanish Crown is the origin of all land titles in the Philippines has persisted because title to land 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 prerogatives. [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 2. Mineral lands 3. National parks 4. agricultural The only land (Public Domain) which may be alienated

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The concept of native title to natural resources, unlike native title to land, has 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 ownership of minerals under the Philippine Bill of 1902.

¥say

The concept of native title in the IPRA was taken from the 1909 case of Cariño vs. Insular Government, 41 Phil 935. Cariño firmly established a concept of private land title that existed irrespective of any royal grant from the State.

Private Lands (A certificate of title had been issued to a Filipino individual)

Same rules as alienable lands as to who may acquire (Only Filipinos)

289

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

1) Not more than 12 ha.

--by lease

(Purchase homestead Grant) 2) Lease—not more than 500 ha.

But State may recover

Except: 1) hereditary succession 2) former natural born 3) Americans holding valid title to private lands as against private persons. Titles to private lands acquired by Americans before July 3, 1974 shall be valid as 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 People’s Organization Human Rights

¥say

Private Corporations

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Filipino Citizens

Section 1 The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequities, and remove cultural inequities by equitably diffusing wealth and political power for the common good. To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and its increments. 290

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

Section 3 The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all. It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right 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 policy and decision-making processes affecting their rights and benefits as may be provided by law. The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace. The State shall regulate the relations between workers and employers, recognizing 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 growth.

Agrarian and Natural Resources Reform Section 4

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Labor

¥say

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

291

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

Article XIV EDUCATION, SCIENCE AND TECHNOLOGY, ARTS, CULTURE, AND SPORTS Section 4 (1), Article XIV of the Constitution recognizes the State’s power to regulate educational institutions: The State recognizes the complementary roles of public and private institutions 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 the regulation and supervision of educational institutions, not the deprivation of their rights. (Miriam College Foundation, Inc. vs. CA, 348 SCRA 265)

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¥say

Ma. Luisa Angeles Ramos

Section 5 (2), Article XIV provides that: Academic freedom shall be enjoyed in all 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 them—free from outside coercion or interference save possibly when 292

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

The right of a school to discipline its students is at once apparent in the third 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 discipline in its students. The Constitution no less imposes such duty. Section 3 (2), Article XIV: All educational institutions shall inculcate patriotism and nationalism, 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, develop moral character and personal discipline, encourage critical and creative thinking, broaden scientific and technological knowledge, and promote vocational efficiency.

Three (3) Aspects of Academic Freedom: 1. From the standpoint of the educational institution—to 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 adequate performance of his other academic duties; b. Freedom in the classroom in discussing his subject, less controversial matters which bear no relation to the subject; c. Freedom from institutional censorship or discipline, limited by his special position in the community.

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The essential freedoms subsumed in the term “academic freedom” encompass the freedom to determine for itself on academic grounds: 1. Who may teach 2. What may be taught 3. How it shall be taught 4. Who may be admitted to study

¥say

the overriding public welfare calls for some restraint. It has a wide sphere of autonomy certainly extending to the choice of students. Said constitutional provision is not to be construed in a niggardly manner or in a grudging fashion. That would be to frustrate its purpose and nullify its intent.

3. From the standpoint of the student—right 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 after 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

In administrative cases, such as investigations of students found violating school discipline, there are withal minimum standards which must be met before to satisfy 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 assistance 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 official designated by the school authorities to hear and decide the case. Academic freedom encompasses the independence of an academic institution to determine 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)

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Where it is shown that the conferment of an honor or distinction was obtained through fraud, a university has the right to revoke or withdraw the honor or distinction it has thus conferred. This freedom of a university does not terminate upon 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 Margaret Celine, G.R. No. 134625, August 31, 1999)

¥say

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 sphere 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, 68 SCRA 277)

294

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

Article XV THE FAMILY Family—is the basic social institution. The State recognizes the Filipino family as 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 effective social security system is an indispensable component of any effective caring for the elderly.

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

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¥say

Ma. Luisa Angeles Ramos

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

®USA vs. Guinto, 182 SCRA 644 Fabian Genove filed a complaint for damages against petitioners Lamachia, Belsa, Cartalla and Orascion for his dismissal as cook in the US Air Force Recreation Center at Camp John Hay Air Station in Baguio City. It had been ascertained after investigation, from the testimony of Belsa, Cartalla and Orascion that Genove had poured urine into the soup stock used in cooking the vegetables served to the club customers. Lamachia, as club manager, suspended him and thereafter referred the case to a board of arbitrators conformably to the collective bargaining agreement between the center and its employees. The board unanimously found him guilty and recommended his dismissal. Genove’s reaction was to file his complaint against the individual petitioners. SC: The rule that a State may not be sued without its consent is one of the generally accepted principles of international law that we have adopted as part of our law. Even without such affirmation, we would still be bound by the generally accepted principles of international law under the doctrine of incorporation. Under this doctrine, as accepted by the majority of states, such principles are deemed incorporated in the law of every civilized state as a condition and consequence of its membership in the society of nations. All states are sovereign equals and cannot assert jurisdiction over one another. When the government enters into a contract, it is deemed to have descended to the 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 capacity. It is only when the contract involves its sovereign or governmental capacity that no such waiver may be implied.

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®Does this doctrine apply as well to foreign government? YES, because of 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.

¥say

There can be no legal right against the authority which makes the law on which the right depends (Republic vs. Villasor, 54 SCRA 83). However, it may be sued if it gives consent, whether express or implied.

Q: How may consent be given? A: The State’s consent may be given either EXPRESSLY or IMPLIEDLY. EXPRESS CONSENT- may be made through enactment by Congress of a general law or special law waiving the immunity. 296

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

Department of Agriculture vs. NLRC, 227 SCRA 693, DA may be sued for money claims 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 to 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 petitioner’s property; after all, the TCT was in the name of the petitioner. USA vs. Ruiz, 136 SCRA 487, where the questioned transaction dealt with the improvements 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 another 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.

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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 claimant to elevate the matter to SC on certiorari and, in effect, sue the State thereby.

¥say

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 implied, 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)

Acta Jure Imperii Acta Jure Gestionis -There is no waiver. The State is acting in -There is waiver of State immunity from its sovereign governmental capacity. suit. The State entered into a contract in its commercial or proprietary capacity. The State descended to the level of a private entity. RESTRICTIVE DOCTRINE OF STATE IMMUNITY FROM SUIT—not all contracts entered into by the government constitute a waiver. The restrictive application of State immunity is proper only when the proceedings 297

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

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 dismissed. The cafeteria caters not only Americans but also the general public. There is waiver of State Immunity from suit. This is a case of Acta Jure Gestionis. Republic vs. Sandiganbayan, 204 SCRA 212, Even if, in exercising the power of eminent 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 an 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 manner 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.

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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).

¥say

arise out of commercial transactions of the foreign sovereign, its commercial activities or economic affairs. Stated differently, a state may be said to have descended to the level of an individual and can thus be deemed to have tacitly given its consent to be sued only when it enters into business contracts. It does not 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 government of the highest order; they are not utilized for nor dedicated to commercial or business purposes.

Article 2189: Provinces, cities and municipalities shall be liable for damages for 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 under 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 death 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Mun. of San Fernando, La Union vs. Judge Firme,195 SCRA 692, the dump truck, owned by the municipality, was driven by its official driver. It was used for hauling 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 Fernando, La Union. The SC held that municipal corporations are agencies of the State 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 their 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 State waiving the immunity

LIABILTY -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 applicable laws

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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 for any affirmative relief, but only for the purpose of resisting the claim precisely 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)

¥say

Q. May the OSG validly waived? A. Republic vs. Purisima, 78 SCRA 470, a mere lawyer (OSG) may not validly waived the immunity from suit of the State. Only Congress can.

Q. When is a suit against a public official deemed to be a suit against the State? A. The doctrine of State Immunity from suit applies to complaints filed against public officials for acts done in the performance of their duties within the scope of their authority. The rule is that the suit must be regarded as one against the state where the satisfaction of the judgment against the public official concerned will require the 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Larkins vs. NLRC, 241 SCRA 598, private respondents were dismissed from their employment by Lt. Col. Frankhauser acting for and in behalf of the US government which, by right of sovereign power, operated and maintained the dormitories at the 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 the 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 such 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 its 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 1989 Mendiola Massacre was upheld inasmuch as the initial findings of the Davide Commission showed that there was, at least, negligence on their part when they fired their guns. They exceeded their authority. The military personnel and the policemen were held to be liable in their individual capacity.

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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.

¥say

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 others. Public officials are not exempt, in their personal capacity, from liability arising from acts committed in bad faith.

*hauling lumber for the repair of the public market—business enterprise of the government (local government) *celebration of town fiesta—Torio vs. Fontanilla—not a governmental function but a proprietary function 300

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

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 ends 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 garnishment. Exceptions: Municipality of San Miguel, Bulacan vs. Fernandez, 130 SCRA 56, funds of a municipality are public in character and may not be garnished UNLESS there is a corresponding appropriation ordinance duly passed by the Sangguniang Bayan. PNB vs. Pabalan, 83 SCRA 595, funds belonging to government corporations which can sue and be sued that are deposited with a bank.

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*duty to appropriate—discretionary 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 money judgment rendered against it, the claimant may avail of the remedy of mandamus in order to compel the enactment and approval of the necessary appropriation ordinance and the corresponding disbursement of municipal funds 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 payment 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 entered the property. Had it done so, the suit can be waived. The state opened itself to a possible suit against it.

¥say

The doctrine of State immunity from suit extends only up to rendition of the judgment. When it comes to execution to satisfy the judgment, it will require another waiver. The remedy is to make the necessary representation with the lawmaking authority.

Unincorporated Agency Incorporated Agency -it has no legal personality separate and -It has a personality separate and distinct distinct from the government. When sued, from the government it is deemed a suit against the State, there is no waiver of State immunity. -it does not have its own charter like -it has its own charter such as SSS, GSIS, Bureau of Customs, BIR, DA, NBI 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

proprietary—if the purpose is to obtain special corporate benefits or earn pecuniary profit, suable governmental—if 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.

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-if performing proprietary functions: suable -if its charter is silent, inquire into its (Civil Aeronautics Administration vs. function based on the purpose for which it CA, 167 SCRA 28). was created (Malong vs. PNR, 138 SCRA 63)

¥say

suable without State consent even if to sue and be sued, it is an express performing proprietary function incidentally consent and it is suable (SSS vs. CA, 120 (Bureau of Printing vs. Bureau of SCRA 707) Printing Employees Association, 1 SCRA 340)

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

Full Filipinization: Section 11 (1), article XVI—the ownership and management of mass media shall be limited to citizens of the Philippines, or to corporations, cooperatives 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 media.

ARTICLE XVII AMENDMENTS OR REVISIONS •Amendment vs. Revision

¥say

Advertising—not treated as mass media but use of mass media.

**Lambino vs. COMELEC -changing the form of government from presidential 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 to, or revision of, the Constitution under Article XVII): (a) Congress— i. (Sec. 1, Art. XVII) Acting as Constitutional Assembly and not as a legislative 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

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Amendment Revision -piecemeal or isolated change in the - revamp or rewriting of the entire Constitution. It is the generic term used to Constitution. It means overhauling of the denote change in the Constitution. government.

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

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 regional, 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 exercise of the right of the people to directly propose amendments to the Constitution through the system of initiative. It does not have the power under RA 6735. Reliance on the COMELEC’s power under Section 2 (1), Article IX-C is misplaced, for the laws and regulations referred to therein are those promulgated by the COMELEC under Section 3 of Article IX-C or a law where subordinate legislation is authorized and which satisfies the “completeness” and the “sufficient standard tests”. (Santiago vs. COMELEC, 270 SCRA 106)

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Occena vs. COMELEC 104 SCRA 1, the choice of method of proposal, i.e., whether made directly by Congress or through a Constitutional Convention, is within the full 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.

¥say

 co-equal to and independent of the 3 branches

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 proposal by Congress or the Constitutional Convention, or after the certification by the COMELEC of the 304

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

REFERENDUM- the power of the electorate to approve or reject legislation through an election called for that purpose. Two (2) Classes: 1. Referendum on Statutes- refers to a petition to approve or reject a law, or part thereof, passed by Congress 2. Referendum on Local Law- refers to a petition to approve or reject a law, resolution or ordinance enacted by regional assemblies and local legislative bodies Doctrine of Proper Submission (proper frame of reference) Because the Constitution itself prescribes the time frame within which the plebiscite 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 is adequate.

¥say

sufficiency of the petition for initiative under Sec. 2, Art. XVII.

Judicial Review of Amendments. The question is now regarded as subject to judicial review because invariably, the issue will boil down to whether or not the constitutional provisions had been followed. (Sanidad vs. Comelec, 78 SCRA 333; Javellana vs. Exec. Secretary, 50 SCRA 50) Prohibited Measures: The following cannot be the subject of an initiative or referendum— 1. No petition embracing more than one subject shall be submitted to the electorate; and 2. Statutes involving emergency measures, the enactment of which is specifically vested in Congress by the Constitution, cannot be subject of referendum until ninety (90) days after the effectivity. (Sec. 10, RA 6735) Local Initiative: not less than 2,000 registered voters in case of autonomous regions, 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 legislative body, respectively, proposing the adoption, enactment, repeal, or amendment, of any law, ordinance or resolution. (Sec. 13, RA 6735)

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The plebiscite may be held on the same day as regular elections.

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

In the case of Lambino vs. COMELEC, G.R. No. 174153, October 25, 2006, the SC held that a people’s initiative to change the Constitution applies only to an amendment of the Constitution and not to its revision. Certainly, the Lambino Group’s initiative is a revision and not merely an amendment. Quantitatively, the Lambino Group’s proposed changes overhaul two articles—Article VI on the Legislature and Article VII on the Executive—affecting a total of 105 provisions in the entire Constitution. Qualitatively, the proposed changes alter substantially the basic plan of government, from presidential to parliamentary, and from a bicameral to a unicameral legislature.

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Revision—

¥say

against such action may, if they so desire, apply for initiative. Limitation on Local Legislative Body vis-à-vis Local Initiative Sec. 125, RA 7160—any proposition or ordinance approved through an initiative and referendum shall not be repealed, modified or amended by the Sangggunian within 6 months from the date of approval thereof, and may be amended, modified or repealed within 3 years thereafter by a vote of ¾ of all its members. In case of barangays, the period shall be 18 months after approval.

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Quintos-Deles vs. Committee on Constitutional Commissions, Commission on Appointments, 177 SCRA 259, the appointment of a sectoral representative by the President of the Philippines is specifically provided in the Constitution. Thus, the appointment of a sectoral representative falls under the 4th category—those officers whose appointments are vested in him in the Constitution. Section 25, Article XVIII—disallows 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 referendum; 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, Article XVIII means that at least two-thirds (2/3) of all the members of the Senate favorably vote to concur with treaty. This provision is a special provision that applies to treaties which involve the presence of foreign military bases, troops or facilities in the Philippines. Under this provision, the concurrence of the Senate is only one of the requisites to render compliance with the constitutional requirements and to consider the agreement binding on the Philippines. (Bayan vs. Zamora, 342 SCRA 449)

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Section 7, Article XVIII Until a law is passed, the President may fill by appointment from a list of nominees by the respective sectors the seat reserved for sectoral representatives in paragraph 2, Section 5 of Article VI of this Constitution.

¥say

Article XVIII TRANSITORY PROVISIONS

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, Bernas, 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

Kinds: 1. Statutes setting up administrative authorities. 2. Rules, regulations, or orders of such administrative authorities promulgated 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 effect 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 structural, functional and procedural principles of governance and embodies changes in administrative structures and procedures designed to serve the people. It covers the internal administration, i.e., internal organization, personnel and recruitment, supervision and discipline, and the effects of the functions performed by administrative officials on private individuals or parties outside government. Administrative Power It is concerned with the work of applying policies and enforcing orders as determined by proper governmental organs. It enables the President to fix a uniform standard of administrative efficiency and check the official conduct of his agents. To this end, he can issue administrative orders, rules and regulations.

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That branch of public law which fixes the organization, determines the competence of administrative authorities who executes the law, and indicates to the individual remedies for the violation of his right.

¥say

E.O. 292

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 and should be for the sole purpose of implementing the law and carrying out the legislative policy. Administration a. As a Function 308

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

Kinds of government: 1. INTERNAL—legal side of public administration, e.g., matters concerning personnel, fiscal and planning activities. 2. EXTERNAL—deals with problems of government regulations, e.g., regulation of lawful calling of profession, industries or businesses. Government Instrumentality It refers to any agency of the national government, not integrated within the department framework, vested with special functions or jurisdiction by law, endowed with some, if not all, corporate powers, administering special funds, enjoying operational autonomy, usually through a charter. It includes regulatory agencies, chartered institutions and GOCCs. Government-Owned or Controlled Corporations (GOCCs) It refers to any agency organized as a stock or non-stock corporation, vested with functions relating to public needs whether governmental or proprietary in nature, and owned by the Government directly or through its instrumentalities either wholly, or where applicable as in the case of stock corporations, to the extent of at least fifty-one percent (51%) of its capital stock.

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Government of the Philippines It refers 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 through which political authority is made effective in the Philippines, whether pertaining to the autonomous regions, the provincial, city, municipal or barangay subdivisions or other forms of local government.

¥say

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 for the time being.

a. Proprietary—if the purpose is to obtain special corporate benefits or earn

pecuniary profit b. Governmental—if 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 provisions, and its employees are under the jurisdiction of the CSC. The PNRC was not impliedly 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 duties, taxes, fees and other charges, etc. (Camporedondo vs. NLRC, G.R. No. 129049, August 6, 1999) 309

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

Organ of government, other than a court, and other than a legislature, which affects 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 even if it conducts hearings and determines controversies to carry out its regulatory duty. On its rule-making authority, it is administrative when it does not have discretion to determine what the law shall be but merely prescribes details for the enforcement of the law. Administrative Regulations—also known as PIECES OF SUBORDINATE LEGISLATION, QUASI-LEGISLATIVE POWERS It cannot extend the law or amend a legislative enactment, for settled is the rule 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 legislation—to fix the details in the execution and enforcement of a policy set out in the law b. Interpretative legislation—construing or interpreting the provisions of a statute to be enforced c. Contingent legislation—made by administrative authority on the existence of certain facts or things upon which the enforcement of the law depends

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Administrative Bodies or Agencies

¥say

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.

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 the legislature—it 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Administrative Rules and Regulations with Penal sanctions; Additional Requisites: 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 regulations general applicability

Quasi-Judicial function and refers to its end product called order, reward or decision applies to specific situation

prospective; it envisages the present determination of rights, privileges promulgation of a rule or regulation or duties as of previous or present time or generally applicable in the future occurrence Holy Spirit Homeowners Association vs. Secretary Defensor, G.R. No. 163980, August 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, the 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 execution or enforcement of a policy set out in the law itself.

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3. Promulgation must be in accordance with the duly prescribed procedures  PUBLICATION: (Tañada vs. Tuvera) Article 2 of the Civil Code. Publication is indispensable. It speaks of laws and refers as well as to administrative 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 published in the O.G. or in a newspaper of general circulation. 4. The administrative RR must be REASONABLE—not whimsical, not capricious, not oppressive; it must pass the test of reasonableness

¥say

Ma. Luisa Angeles Ramos

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. 311

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

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 related activities. Since the DPWH has no authority to regulate activities related to 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 general 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 hearing is not necessary for the issuance of an ARR. Doctrine of Legislative Approval by Re-Enactment—the rules and regulations promulgated by the proper administrative agency implementing the law are deemed confirmed and approved by the Legislature when said law was re-enacted by later legislation 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. Enabling—to permit or allow something which the law undertakes to regulate 2. Directing—illustrated by the power of assessment of the BIR or Bureau of Customs 3. Dispensing—to exempt from a general prohibition, or relieve an individual or corporation from an affirmative duty 4. Examining—investigatory power—consists in requiring production of books, papers, etc. 5. Summary—power to apply compulsion or force against persons or property to effectuate a legal purpose without a judicial warrant to authorize such action

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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 implementation of a statute is necessarily limited to what is provided for in the legislative enactment. The implementing rules and regulations of a law cannot extend 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 required 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 prescribed by law.

¥say

Ma. Luisa Angeles Ramos

Quasi-Judicial or Adjudicatory Power 312

2008 Political Law and Public International Law Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, 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 and rendering decisions. The proceedings partakes the character of judicial proceedings

The power to promulgate rules of procedure Once vested with quasi-judicial power, by virtue of the DOCTRINE OF NECESSARY IMPLICATION, 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 enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court. In Cariño vs. CHR, 204 SCRA 483, the power to investigate is different from the power to adjudicate. The court has observed that it is “only the first of the enumerated powers and functions that bears any resemblance to adjudication,” but that resemblance can in no way be synonymous to the adjudicatory power itself. Power to investigate Receiving evidence and make findings of fact in a controversy (in the case of CHR, claimed human rights violations involving civil and political rights)

Power to adjudicate The faculty of receiving evidence and make factual conclusions in a controversy accompanied by the authority of applying the law to those factual conclusions 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 provided by law.

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Requisites for a valid exercise of Quasi-Judicial Function of Administrative Agency 1. Conferment of jurisdiction—jurisdiction is conferred by the Constitution or law; it cannot be implied, cannot be waived, it cannot be left to the will of the people.

¥say

Sec. 1(1), Article VIII—The judicial power shall be vested in one SC and in such lower courts as may be established by law. –outside of this, they refer to the administrative agency performing quasi-judicial functions.

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

2. Observance of Administrative Due Process—mandatory. The requisites of

Montemayor vs. Araneta University Foundation (1977)—Montemayor was a full-time professor. Charged with immoral advances, he was investigated with the assistance of counsel, and dismissed in accordance with the Manual of policies of the University. On appeal to the NLRC, he was ordered reinstated. The SC held that his removal was with due process. There was no violation of due process in the labor proceeding but it did not preclude Montemayor from suing the University for damages. In Lumiqued vs. Exevea, G.R. No. 117565, November 18, 1997, the CAR Regional Director 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 properly assisted by counsel. It is the right of the accused to be assisted by counsel. The SC held that the right of the accused that was being alleged by the heirs is a right of the accused during custodial investigation which is part of a criminal proceeding. This is not a criminal proceeding. Administrative due process does not necessarily require the assistance of counsel. A party in an administrative 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.

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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 substantial—quantum of evidence; e. The decision must be based on the evidence adduced at the hearing, or at least 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 subordinate in arriving at a decision; and g. The decision must be rendered in such a manner that the parties to the controversy can know the various issues involved and the reason for the decision rendered.

¥say

administrative due process, as enumerated in Ang Tibay vs. CIR, 40 O.G. 7th Supp. 128 are:

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, Bernas, 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 given full opportunity to confront the witnesses against her.

CSC vs. CA, G.R. No. 161086, November 24, 2006, in administrative proceedings, the filing of charges and giving reasonable opportunity for the person so charged to answer the accusations against him constitute the minimum requirements of due process. As long as a party was given opportunity to defend his interests in due course, he was not denied due process. Power of Contempt—judicial; inherent power of the court. It must be used on the preservative not on the vindictive principle. An administrative body may exercise the power of contempt if expressly granted/vested by law to the administrative agency. The doctrine of necessary implication cannot be applied here. In Guevarra vs. COMELEC, 104 Phil. 268, the power to punish contempt must be expressly granted to the administrative body; and when so granted, may be exercised only when the administrative body is actually performing quasi-judicial functions. In Simon, Jr. vs. CHR, 229 SCRA 117, the CHR is constitutionally authorized to “adopt its operational guidelines and rules of procedure, and cite for contempt for violations thereof in accordance with the Rules of Court”. Accordingly, the CHR acted within its authority in providing in its revised rules, its power “to cite or hold any person in direct or indirect contempt, and to impose the appropriate 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 to apply only to violations of its adopted operational guidelines and rules of procedure essential to carry out its investigatorial powers. To exemplify, the power to cite for contempt could be exercised against persons who refuse 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 work. The “order to desist” (a semantic interplay for a restraining order) is not

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In administrative proceedings, procedural due process simply means the opportunity to explain one’s side or the opportunity to seek a reconsideration of the action or ruling complained of. “To be heard” does not mean only verbal arguments in court; one may also be heard through pleadings. Where opportunity to be heard, either through oral arguments or pleadings, is accorded, there is no denial of procedural due process (Casimiro vs. Tandog, G.R. No. 146137, June 8, 2005).

¥say

The essence of due process is simply an opportunity to be heard or, as applied to administrative proceedings, an opportunity to seek reconsideration of the action or ruling complained of (Dela Cruz vs. Abille, G.R. No. 130196, February 26, 2001), or an opportunity to explain one’s side (Pilipinas Loan Company vs. SEC, G.R. No. 104720, April 4, 2001).

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In PBC vs. CIR, G.R. No. 112024, January 28, 1999, Article 8 of the Civil Code recognizes judicial decisions applying or interpreting statutes as part of the legal system of the country. But administrative decisions do not enjoy that level of recognition. A memorandum-circular of a bureau head could not operate to vest a taxpayer with a shield against judicial action. For there 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 Government in estoppel to correct or overrule the same. Administrative Appeal and Review a. Where provided by law, appeal from an administrative determination may be made to a higher or superior administrative officer or body. b. By virtue of the power of control by which the President exercises over all executive departments, the President—by himself—or through the Department Secretaries (pursuant to the Alter-Ego Doctrine), may affirm, modify, alter, or reverse the administrative decision of subordinate officials and employees. (Araneta vs. Gatmaitan, 101 Phil. 328). c. The appellate administrative agency may conduct additional hearings in he appealed case, if deemed necessary. (Reyes vs. Zamora, 90 SCRA 92).

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Administrative determinations where notice and hearing are not necessary for due process: 1. Grant of provisional authority for increased rates, or to engage in a particular line of business 2. Summary proceedings of distraint and levy upon the property of a delinquent taxpayer 3. Cancellation of 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

¥say

investigatorial in character but prescinds from an adjudicative power that it does not possess. In this case, the power of contempt arose from an erroneous assumption of jurisdiction. It is not valid. There is grave abuse of discretion to both issues.

Doctrine of Res Judicata It does not apply to administrative decisions. It forbids the reopening of a matter once determined by competent authority acting within their exclusive jurisdiction. (Ysmael vs. Deputy Executive Secretary, 190 SCRA 673) 316

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

In cases where the doctrine of primary jurisdiction is clearly applicable, the court cannot arrogate unto itself the authority to resolve a controversy, the jurisdiction 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-condition that he should have availed of all the means of administrative processes afforded him. Hence, if a remedy within the administrative machinery can still be resorted to 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 court’s judicial power can be sought. The premature invocation of court’s jurisdiction is fatal to one’s cause of action. Sec. 187, LGC—expressly provides that administrative remedies must be exhausted first before the constitutionality or legality of a tax ordinance may be challenged in court.

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In recent years, it has been applied to matters that demand the special competence 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 comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such case, the judicial process is suspended pending referral of such issues to the administrative body for its view.”

¥say

Doctrine of Primary Jurisdiction (or Prior Resort) Courts cannot and will not resolve a controversy involving a question which is within the jurisdiction of an administrative tribunal, especially where the question demands the exercise of sound administrative discretion requiring the special knowledge, experience and services of the administrative tribunal to determine technical and intricate matters of fact.

In Philippine Coconut Desiccators vs. PhilCoA, G.R. No. 110526, February 10, 1998, only decisions of administrative agencies made in the exercise of quasijudicial powers are subject to the rules of exhaustion of administrative remedies. In like manner, the doctrine of primary administrative jurisdiction applies only where the administrative agency exercises quasi-judicial or adjudicatory powers. Thus, where what is assailed is the validity or constitutionality of a rule or regulation issued by the administrative agency in the performance of its quasi-legislative function, the regular courts have jurisdiction to pass upon the same (Smart Communications vs. NTC, G.R. No. 151908, August 12, 2003). 317

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Exceptions: 1. If the issue involves a pure question of law—useless to exhaust. Only the courts can declare with finality what are purely legal question. In Castro vs. Secretary Gloria, G.R. No. 132174, August 20, 2001, the SC said that there is a question of law when the doubts or differences arise as to what the law is on a certain state of facts. There is question of fact 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 remedy—just go to the regular

courts. In Estuerte vs. CA, 193 SCRA 541, the SC said that in a civil action for damages, the court’s concern is whether or not damages, personal to the plaintiff, were caused by the acts of the defendants; it can proceed independently of the administrative action. Accordingly, the doctrine of exhaustion of administrative remedy does not apply. 3. Doctrine of Qualified Political Agency—ALTER EGO DOCTRINE. In Nazareno

vs. CA, 267 SCRA 589, the SC held that when the Undersecretary of DENR denied the motion for reconsideration, he was acting on behalf of the Secretary of DENR; accordingly, administrative remedies had been exhausted.

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General rule: Exhaustion of administrative remedies must first be made before resorting to court actions. Failure to exhaust will not affect the jurisdiction 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 ground, there is deemed to be a waiver.

¥say

Doctrine of Primary Jurisdiction (Prior Doctrine of Exhaustion of Resort Administrative Remedies Lack of jurisdiction cannot be waived; Lack of Cause of action; waivable; jurisdiction is conferred by law premature resort to the courts necessarily becomes fatal to the COA.

4. Where there is unreasonable delay or official inaction. In Republic vs. Sandiganbayan, 255 SCRA 438, the inaction of the PCGG on the motion filed by the respondent and co-respondent [it took 7 years before the PCGG filed 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 NAPOLCOM 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, Bernas, 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 appeal 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.

8. When the subject matter is a private land in land case proceeding. 9. When there are circumstances indicating the urgency of judicial intervention.

¥say

7. When it would amount to a nullification of the claim.

In Vda de Tan vs. Veterans Backpay Commission, 105 Phil. 377, petitioner, as widow of a Chinese guerilla veteran who rendered military service during the Japanese occupation, filed an application for back pay before the Veterans Back Pay Commissions. xxx The respondent Commission is in estoppel considering that in its resolution: “The opinions promulgated by the Secretary of Justice are advisory in nature, which may either be accepted or ignored by the office seeking the opinion, and any aggrieved party has the court for recourse xxx.” thereby leading 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 determination and for that reason a party has no cause of action to ventilate in court. (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 considerations, are not inflexible rules. There are many accepted exceptions such as unreasonable delay or official inaction that will irretrievably prejudice the complainant and when the question involved is purely legal and will ultimately have to be decided by the courts of justice. (RP ETC vs. Lacap, G.R. No. 158253, March 2, 2007)

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10. When due process of law is clearly violated. 11. When there is estoppel on the part of the administrative agency concerned.

Judicial Review of Administrative Decisions; When Made: 1. To determine constitutionality or validity of any treaty, law, ordinance, executive order or regulation; 2. To determine jurisdiction of any administrative board, commission or officer; 319

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3. To determine any other questions of facts when necessary to determine either:

a. Constitutional or jurisdictional issue; b. Commission of abuse of authority; and c. When administrative fact-finding body is unduly restricted by an error of law.

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, have 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 FACTS—where what purports to be a finding upon a question of fact is so involved with and dependent upon a question of law as to be in substance and effect decision on the latter, the Court will, in order to decide the legal question, examine the entire record including the evidence if necessary.

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General Rule: Findings of facts of administrative agencies accorded great weight by the courts.

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4. To determine any other questions of law.

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

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Basis of International Law 1. Law of Nature School—based on rules of conduct discoverable by every individual in his own conscience and through application of right reasons. 2. Positivist School—agreement 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 School—a compromise between the first 2 schools and submits that international law is binding partly because it is good and right and partly 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 economic, social, cultural or humanitarian character.

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International Law—body of principles, norms and processes which regulates he relations of States and other international persons, and governs their conduct affecting the interests of the international community of States as a whole. This concept manifests in the codification of jus cogens or peremptory norms as part of positive international law. The Vienna Convention on the Law of Treaties specifies jus cogens norms as a ground for nullification or termination 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 character.

¥say

Ma. Luisa Angeles Ramos

Basic norms or principles of international law: 1. States shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, 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.

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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 conferences-

limited (Note: Subsequent confirmation of acts of representatives without full powers validates 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. International 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 binding. Doctrine of state immunity, prohibition against slavery, principle of exterritoriality

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Sources of International Law a. International treaties and conventions, whether general or particular, establishing 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

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3. The duty of States not to intervene in matters within the domestic jurisdiction of any State. 4. The duty of States to cooperate with one another. 5. The principle of equal rights and self-determination of peoples. 6. The principle of sovereign equality of States. 7. States shall fulfill in good faith the obligations assumed by them.

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d. Judicial decisions and the teachings and writings of the most highly qualified

publicists of the various nations and advisory opinions of the ICJ, as subsidiary means for the determination of rules of law. e. Equity—Article 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 norms is that they are created, or they acquire binding effect, through the methods pointed out above. Formal Sources

Material Sources

—consists of the methods and procedures —are the substantive evidence of the for the creation of norms; existence of norms;

—may refer to customary norms

—may refer to judicial decisions and the works of highly qualified publicists or jurists, which embody norms of international law

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c. The general principles of law recognized by civilian nations; Derived from law of nature and are observed by the majority of states because they are believed to be good and just.

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Instant Custom—a 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

THE LAW ON TREATIES (See Atty. Sandoval’s 2008 handouts in International Law, page 9)

JUS COGENS—a (peremptory) norm which States cannot derogate or deviate from in their 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

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International Law Law of coordination 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 and not to its nationals

Municipal Law 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 orders and judicial pronouncements redressed thru local administrative and judicial processes breach of which entails individual responsibility

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Principles which determine the order of precedence in the application of rules or norms of International Law: 1. Lex superior derogate inferiori—rules from one source of law prevail over those derived from another source. 2. Lex posterior derogate priori—later rules prevail over the earlier. 3. Lex specialis derogate generali—particular rules prevail over the general.

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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-determinations

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 Incorporation Clause in Section 2, Article II of the Constitution. If a local court is deciding:

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Relation of IL to ML: (2 Views) 1. Monist—IL is the same as ML 2. Dualist—they are disctinct from each other by purpose. IL becomes part of ML by incorporation or transformation. INCORPORATION CLAUSE—Section 2, Article II of the Constitution-- The Philippine renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations. 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 confronted 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 regard for the generally accepted principles of international law in observance of the Incorporation Clause in Section 2, Article II of the Constitution. In a situation, however, where the conflict is irreconcilable and a choice has to be made between a rule of international law and municipal law, jurisprudence dictates that municipal law should be upheld by the municipal courts for the reason that such courts 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 law 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 incorporation, as applied in most countries,

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If an international tribunal is deciding: International law is superior to municipal law, because international law provides the standard by which to determine the legality of a State’s conduct. By the doctrine of pacta sunt servanda, a state may not invoke its internal law to avoid a treaty obligation.

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If conflict is with the Constitution, the latter prevails. Sec. 5(2a), Article VIII 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 superior to, national legislative enactments.

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It creates legal rights and obligations within Philippine territory and regulates the conduct of government official and organs as well as the relations of individual citizens with each other and with the government. Questions of international law may be submitted to Philippine courts for decision. The outcome of litigation, however, does not affect the binding nature of international law in the relation 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 to require no proof at all for the application of generally accepted principles of international law to become operative as Philippine law 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 stationed in it, by permission of its government or sovereign, is exempt from the civil and criminal jurisdiction of the place

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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 can carry out its obligations under international law within its territorial jurisdiction.

¥say

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 effect—a treaty may repeal a statute and a statute 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)

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Holy See vs. del Rosario, the Court has declared in an obiter dictum that even without 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 TRANSFORMATION—requires 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 held that Section 6, Article II of the Constitution was taken from the Universal Declaration of Human Rights and the Alma Conference Declaration of 1978 recognizing health as a fundamental human right. Thus, the authority of the LLDA to issue a cease and desist order to prevent pollution of Marilao River was upheld on the basis of the principle of necessary implication.

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5. Judicial acts not of a political complexion of a de facto government established 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 circumstances not constituting valid requisition does not become enemy property and its private 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 limited 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

¥say

Ma. Luisa Angeles Ramos

Provisions of the Constitution which concern International Law 1. Article I—National Territory 2. Article II, Section 2—Incorporation Clause 3. Article II, Section 4—defense of state 4. Article II, Section 7—independent foreign policy 5. Article II, Section 8—freedom from nuclear weapons 6. Article III, Section 6—liberty of abode 7. Article IV—Citizenship 327

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

governing territories which have been placed under international supervision to insure their political, economic, social and educational advancement; Mandates—former territorial possessions of states defeated in World War I and placed under the control of the League of Nations. Trust territories—some of the mandates that were placed under the Trusteeship Council of the UN Condominium—is a territory jointly administered by two states. 4. Belligerent communities—group of rebels under an organized civil government who have taken up arms against the legitimate government. When recognized, considered as a separate state for purposes of conflict and entitled to all the rights and subjected to all the obligations of a full-pledged belligerent under the laws of war; 5. International administrative bodies—created by agreement among states may be vested 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);

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Subject of International Law—is an entity with capacity of possessing international rights and duties and of bringing international claims. This entity is said to be an international person or one having an international personality, on the basis of customary or general international law. It includes: 1. State; 2. Colonies and dependencies—they are considered as part and parcel of the parent state, through which all its external relations are transacted with other states; 3. Territories under international control or supervision—these are non-self-

¥say

8. Article VI, Section 23—State of war 9. Article VII, Section 21—treaty 10. Article VIII, Section 5—cases affecting ambassadors 11. Article XII, Section 2—ownership of lands and exploration of resources 12. Article XVIII, Section 4—treaties 13. Article XVIII, Section 25—foreign military troops

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 jurisdiction, 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 which 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

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 restricted 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 Statute 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.

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8. Individuals, to a certain extent—they have also been granted a certain degree of international personality under a number of international agreements: a. UN Charter provision on “faith in fundamental human rights, dignity and worth of the human person, and in the equal rights of men and women”; b. Universal Declaration of Human Rights provision on the “inherent dignity and the equal and inalienable rights of all members of the human family”; c. Some treaties—Treaty of Versailles which confer on individuals the right to bring suit against States before national or international tribunals; d. The need of States to maintain international standard of justice in the treatment of aliens; e. The Genocide Convention which condemns the mass extermination of national, ethnic, 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 Stateless 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.

¥say

Ma. Luisa Angeles Ramos

Government of Hong Kong Special Administrative Region vs. Hon. Olalia, Jr. G.R. No. 153675, April 19, 2007 (See Atty. Sandoval’s 2008 handouts in International Law, page 1) Are international organizations considered subjects of international law?  Yes, their status is determined by agreement and not by general or customary international law. The criteria of a legal personality have to be met. 1. A permanent association of states, with lawful subjects, equipped with organs; 2. A distinction, in term of legal powers and purposes, between the organization and its member states; 329

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STATE—a community of persons, more or less numerous, permanently occupying a definite portion of territory, independent of external control, and possessing a government 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 political ends under an independent government, and capable of entering into international relations with other states.

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3. The existence of legal powers exercisable on the international plane and not solely within the national systems of one or more states.

People—a group of individuals, of both sexes, living together as a community. They must be sufficient in number to maintain and perpetuate themselves. 2. Defined territory—a fixed portion of the earth’s surface occupied by the inhabitants; 3. Government—must be organized, exercising control over and capable of maintaining law and order within the territory; and 4. Capacity to enter into relations with other States—refers to independence, that is, freedom from outside control in the conduct of its foreign (and internal) affairs, which many highly qualified publicists consider as the decisive criterion of statehood. 5. Civilization 6. Recognition

other suggested/additional elements

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Basic Criteria for Statehood (elements): 1. Permanent population;

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

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1. By extinction or emigration en masse of its population;

2. Loss of territory; and 3. Overthrow of government resulting in anarchy.

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 international person except that its lawful representative is changed. Consequences: 1. All rights of the predecessor government are inherited by the successor; 2. Where the new government was organized by virtue of constitutional reform duly ratified in a plebiscite, all obligations of the predecessor are likewise assumed; 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.

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

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Principle of State Continuity—as long as the elements of the State are present, the State shall continue in existence.

Classes of States: A. INDEPENDENT—has freedom to direct and control foreign relations without restraint from others states. It may be: a. Simple—single central government with power over internal and external affairs. b. Composite—2 or more sovereign states joined together to constitute one international person which may be:

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that they form a single international person through which they act as one entity. The states retain their separate identities, but their respective international personalities are extinguished and blended in the new international person. ii. Federal Union—combination of 2 or more states which, upon merger, ceased to be states, resulting in the creation of new state with full international personality 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 member-states; Authority over external affairs: handled solely by federal authorities.

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i. Real Union—2 or more states merged under a unified authority so

direction of its external affairs, such as a protectorate (which is established at the request of the weaker state for the protection by a strong power, e.g. Panama, Andorra, Monaco) or a suzerainty (which is the result of a concession from a state to a former colony that is allowed to be independent subject to the retention by the former sovereign of certain powers over the external affairs of the latter, e.g. Bulgaria and Rumania, both suzerainties of Sultan of Turkey by virtue of Treaty of Berlin of 1878) C. NEUTRALIZED—whose 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 Austria

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B. DEPENDENT—although theoretically a state, does not have full freedom in the

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;

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3. Right to existence and self-preservation/self-defense—Sec. 4, Article II of Phil. Constitution & Article 51, UN Charter—recognize the inherent right to individual or collective selfdefense if an armed attack occurs against such state;

DRAGO DOCTRINE—it prohibits intervention for the purpose of collecting contractual debts. It was formulated by Argentinian Foreign Minister Luis Drago as a reaction to what happened in Venezuela in 1902 where the ports of Venezuela were blockaded by the combined naval fleets of Germany, Italy, and Great Britain (the super powers of the time) to compel the Venezuelan government to pay its contractual debts.

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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 membership 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 another 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 interfere 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 authorities in international law, has now evolved into an international custom).

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4. Right to equality; and 5. Right to diplomatic intercourse.

State Sovereignty—is the right to exercise in a definite portion of the globe the functions of a State to the exclusion of any other State.

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Recognition—The 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 may 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 political. Basic Rules on Recognition: It is a political act and mainly a matter of policy on the part of each State; it 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 wisdom of recognition is not subject to judicial review.

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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 inviolable; 5. Each State has the right freely to choose and develop its political, social, economical and cultural systems; and 6. Each State has the duty to comply fully and in good faith with its international obligations and to live in peace with other States.

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Sovereignty in relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State. (Judge Huber, the Sole Arbitrator in the Island of Las Palmas Case)

Tobar or Wilson Doctrine—(must show stable government and people support)—the doctrine precludes recognition of government established by revolutionary means until the constitutional reorganization by the free election of representatives.

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Estrada Doctrine—it provides that if a state will deal with representatives of the government in actual control of another country for the protection of its citizens in the territory of the later state, this does not necessarily mean recognition of the said 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 of insurgency, which is rarely recognized, because this will be intervention in the domestic affairs of another state.

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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 provisional and limited to certain juridical relations; it does not bring about full diplomatic intercourse and does not give title to assets of the state held/situated abroad. 2. De Jure—(of Law) extended to a government fulfilling the requirements for recognition. When there is no specific indication, recognition is generally de jure. The recognition is relatively permanent; bring about full diplomatic intercourse and observance of diplomatic immunities; and confers title to assets abroad. 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 relations 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.

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Stimson Doctrine—no recognition of a government established through external aggression.

335

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

Jurisdiction of States—it is the power, authority, sovereignty or legal control exercised by a state over land, persons, property, transactions, and events in its territory. 1. As a concept—it is the capacity to: a. Legislate or to prescribe laws/rules b. Enforce laws/rules 2. As power—it is exercised over: a. 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 international 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

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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.

¥say

Ma. Luisa Angeles Ramos

ii. Airspace (flight space) Paris Convention, October 13, 1919—State with exclusive sovereignty Convention on International Civil Aviations—prohibits entry of state aircraft without authorization by special agreement

336

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

Has an effect on its territory; Has been committed by or against its national or a permanent resident therein; Is against its national security; Relates to a breach of its national rules on flight; Is the subject of an exercise of jurisdiction necessary to ensure the observance of an obligation of such state under a multilateral agreement

iii. Internal and Territorial Waters Fisheries case—Straight Baseline allowed and delimitation of territorial waters Corfu Channel Case—innocent passage in international straits allowed

Jurisdiction over Adjacent Maritime Seas i. Continental shelf North Sea Continental shelf Cases—what confers title ipso jure to continental shelf is the fact that the submarine areas concerned may be deemed to be actually part of the territory of the coastal state in the sense that, although covered with water, they are a prolongation or continuation of that territory. ii. Exclusive Economic Zone Fisheries Jurisdiction case—exclusive rights over fishery zone must take into account interests of other States

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a. b. c. d. e.

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Tokyo Convention of 1963—for extradition purposes, a crime, may be considered as having been committed in the “State of registry of the Aircraft”; but jurisdiction by another Contracting State may be had if the offense:

(See discussion under UNCLOS below)

Jurisdiction over Persons and Economic Activity Theories: 1. Nationality—civil law follows national wherever he/she may be; 2. Passive Personality—punish aliens abroad who injures one’s citizen; 3. Security Principle—punish aliens for acts against State’s security, independence and territorial integrity; 4. Universality—e.g. piracy, crimes against humanity, etc. 5. Objective Territoriality—elements of crime occurred in 2 states 337

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

Outer space, including the moon and other celestial bodies, shall be free for exploration and use by all states without discrimination of any kind, on the basis of equality and in accordance with international law. Spatial test—96 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 Nationality—It is the possession by an individual of more than one nationality. It is acquired as a result of the concurrent application to him of the conflicting municipal laws or two or more states claiming him as their national.

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Areas not subject to the Jurisdiction of Individual States 1. High Seas 2. Deep Seabed 3. Outer Space—the region beyond the earth’s atmosphere Province of all mankind—not subject to national appropriation; no nuclear weapons in orbit; astronauts are “envoys of mankind” and State shall obliged to render assistance to them in emergency landing; there is international responsibility for national activities in outer space; absolute liability for damage caused by space objects.

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Ma. Luisa Angeles Ramos

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

Statelessness—condition or status of an individual who is born without any nationality or who loses his nationality without retaining or acquiring another. A stateless person is entitled to, among others, the right to religion and religious instruction, access to courts, elementary education, public relief and assistance, rationing of products in short supply and treatment of no 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 Aliens—State has the primary obligation to afford protection to aliens. A state is responsible for injury inflicted upon an alien if caused by an act or omission imputable to the state, in violation of international standard of justice. Indirect State Responsibility—where the offense is committed by inferior government 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.

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Doctrine of Effective Nationality—a person having more than one nationality shall be treated as if he had only one—either the nationality of the country in which he is habitually and principally resident or the nationality of the country with which in the circumstances he appears to be in fact most closely connected. (Frivaldo vs. COMELEC, June 23, 1989)

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Doctrine of Indelible Allegiance—an individual may be compelled to retain his original nationality notwithstanding that he has already renounced it under the laws of another state whose nationality he has acquired.

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

Calvo doctrine—provision frequently inserted in contracts where nationals of another state renounce any claim upon his national state for protection. Such waiver can only be made, legally, by alien’s 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 territory—deportation/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 Deportation—expulsion of an alien considered undesirable by local state, usually but not necessarily, to his own state.

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In case of injuries inflicted upon foreigner in the course of quelling a rebellion, state responsibility will attach only if rebellion succeeds and the rebels will take control of the 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 the protection of aliens.

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The Philippines is not liable for death or injury to alien hostages of the abu sayyaf, unless it is shown to have participated directly or was remiss or negligent in taking measures to prevent injury, investigating the case, punishing the guilty, or to enable the victim or his heirs to pursue civil remedies.

Reconduction—forcible conveying of aliens back to their home state without any formalities

ASYLUM in International Law The right of asylum is the competence of every State inferred from its territorial 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, Bernas, 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 political reasons.

Who is a Refugee? A refugee is a person who is outside the country of his nationality, or if he has no nationality, the country of his former habitual residence, because he has or had wellfounded fear of persecution by reason of his race, religion, nationality or political opinion and is unable or, because of such fear, is unwilling to avail himself of the protection of the government of the country of his nationality, or, if he has no nationality, to return to the country of his former habitual residence. To be considered a refugee, the person: 1. Is outside the country of his nationality, or, in the case of stateless persons, 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 status; thus, the refugee treaties imply the principle of asylum.

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Political asylum—refuge in another state for political offenses, danger to life or no assurance of due process

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Diplomatic asylum—refuge in diplomatic premises

Non-Refoulement Principle—Article 33 of The Convention Relating to the Status of Refugees provides that no contracting State shall expel or return (refouler) a refugee, 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 Clause—a 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

Purpose: To grant to the contracting party treatment not less favorable than that 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 equality of international treatment by providing that the citizens or subjects 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:

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to the “most favored” among other countries. The clause has been commonly included in treaties of commercial nature.

1. Conditional

According to the clause in its unconditional form, any advantage of whatever kind which has been or may in future be granted by either of the contracting parties to a third State shall simultaneously and unconditionally be extended to the other under the same or equivalent conditions as those under which it has been granted to the third State.

UNITED NATIONS The international organization which succeeded the League of Nations Organs of UN 1. General assembly—“Assembly” 2. Security Council 3. Economic & Social Council (ECOSOC) “Council” 4. Trusteeship Council 5. Secretariat 6. ICJ “organs”

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2. Unconditional

2 Functions of International Court of Justice 1. To resolve contentious cases; 2. To render advisory opinions to the General Assembly, the Security Council, and other organs of the United Nations.

342

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

International Criminal Court (ICC)  it is a criminal tribunal

International Court of Justice (ICJ)  it is a civil tribunal

 has criminal jurisdiction to prosecute  does not have criminal jurisdiction over individuals individuals  it prosecutes individuals for genocide,  it is a civil tribunal that deals primarily crimes against humanity, war crimes and with disputes between States the crimes of aggression  it is independent of the United nations

 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 jurisdiction 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)

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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 of an international obligation; 4. The nature and extent of the reparations to be made in case of breach of an international obligation.

¥say

Ma. Luisa Angeles Ramos

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

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 in New York. The Philippines signed the Statute on December 28, 2000 through Charge d’ Affairs Enrique A. Manalo of the Philippine Mission to the UN. Its provisions, however, require that it be subject to ratification, acceptance or approval of the signatory states. (Article 25, Rome Statute) Pimentel, Jr. vs. Office of the Executive Secretary, 462 SCRA 622, July 6, 2005— Ratification of the Rome Statute of the International Criminal Court—the SC held that the power to ratify does not belong to the Senate. In the book of Justice Isagani Cruz, the usual steps in the treaty-making process are: 1. Negotiation—may be undertaken directly by the head of state but usually assigns 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.

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 No trial in absentia  No reservations  Penalties: Imprisonment—max of 30 years; no death penalty  Principle of Complementarity—the ICC shall be complementary to national criminal jurisdictions of states. It gives primacy over the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes.

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5. Principle of Superior Responsibility—a superior is held liable for failure to prevent subordinates from committing unlawful acts, in view of his command and control over them and liable as well for their crimes 6. Mens rea—material elements of a crime must be committed with intent and knowledge

2. Signature—if and when the negotiators finally decide on the terms of the

treaty, the same is opened for signature. This step is primarily intended as a means of authenticating the instrument and for the purpose of symbolizing the good faith of the parties; but significantly, it does not indicate the final consent of the state in cases where ratification of the treaty is required. The document is signed usually in accordance with the alternat, i.e., each of the several negotiators 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

3. Ratification—is the formal act by which a state confirms and accepts the

usually signifies the effectivity of the treaty unless a different date has been agreed upon by the parties. When ratification is dispensed with and no effectivity clause is embodied in the treaty, the instrument is deemed effective upon its signature. It should be emphasized that under our Constitution, the power to ratify is vested in the President, subject to the concurrence of the Senate. The role of the Senate, however, is limited only to giving or withholding its consent, or concurrence, 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 ratification, refuse to ratify it. Although the refusal of a state to ratify a treaty 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 cannot be encroached by this Court via a writ of mandamus. This Court has no jurisdiction 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 religious group.

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4. Exchange of the instruments of ratification—this is the last step which

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provisions of a treaty concluded by its representatives. The purpose of ratification is to enable the contracting states to examine the treaty more closely and to give them an opportunity to refuse to be bound by it should they find it inimical to their interests. It is for this reason that most treaties are made subject to the scrutiny and consent of a department of the government other than what which negotiated them.

(See Atty. Sandoval’s 2008 handouts in International Law, page 1-2)

INTERNATIONAL HUMAN RIGHTS LAW (See Atty. Sandoval’s 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

(See Atty. Sandoval’s 2008 handouts in International Law, page 4)

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 relations 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 notes)

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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 act and does not attempt to escape

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Martens Clause—provides that “in cases not covered by this protocol or by any other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established customs, 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).

MARITIME TERRITORY (Fluvial and Maritime Domain)— (See Discussion under the National Territory and UNCLOS on pages 9 and 370, respectively)

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

Three (3) International Theories on Aerial Jurisdiction: 1. Free zone theory—The atmosphere over the country is free and not subject to the 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 national security.

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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.

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 exercises control, then its law will govern. 3. Absolute theory—adopted by the Philippines

The subjacent state has complete jurisdiction over the atmosphere above it subject 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 be established that it is within the Philippine atmosphere, our law will govern. Outer Space—is the region beyond the earth’s atmosphere. Outer Space Treaty—provides for the exploration and use of outer space as the “province 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 benefit and in the interest of all countries, irrespective of their degree of economic or scientific development.”

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2. Relative theory—the subjacent state exercises jurisdiction over the atmosphere

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 that it shall be “free for exploration and use by all states without discrimination of any kind.” The States parties to the Treaty are to consider astronauts or cosmonauts as “envoys of mankind.” 347

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

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 PRINCIPLE—the Philippines exercises jurisdiction over persons by reason of their connection to the Philippine state as its citizens. (Article 15 of the Civil Code—Laws relating to family rights and duties, or to status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad.) Vest jurisdiction in State of offender 3. PROTECTIVE PRINCIPLE—the Philippines takes jurisdiction over persons who committed acts outside its territorial jurisdiction but with consequences prejudicial to its interests or inimical to its national security. (Read Article 2 of the Revised Penal Code)

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Leading principles: 1. TERRITORIALITY—the Philippines possesses absolute (but may not be exclusive) jurisdiction over persons, property, relations, and events by reason 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 Code—Penal 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 public 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.

¥say

Ma. Luisa Angeles Ramos

4. UNIVERSALITY PRINCIPLE—vest 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 PRINCIPLE—vest jurisdiction in state of offended

party; 348

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

SOVEREIGN IMMUNITY

1. Heads of States and the state itself

Basis: equality and independence of states Act of State Doctrine— a. Broad sense—it is an exercise of sovereign power, which cannot be challenged, controlled or interfered with by the court of law. It refers to the political acts of a State which are exercised as exclusive prerogatives by the political 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.

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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 International 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 permission of the State 7. Warships and other public vessels of another State operated for non-commercial purposes

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A State has jurisdiction over crimes against its own nationals even if committed outside the territory.

b. Limited sense—it refers to the acts taken by the State concerning as affecting aliens, like the inherent right of every sovereign state to exclude resident aliens from the territory when their continued presence is no longer desirable from the standpoint of its domestic interest and tranquility. Doctrine of State Immunity—as a consequence independence, territorial supremacy and 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, Bernas, 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 consent, waived its immunity, or voluntarily submitted to the jurisdiction of the court concerned. (Read Also Discussions under State Immunity from Suit)

Exterritoriality—exception of persons and property from local jurisdiction on basis of international customs Extraterritoriality—applies only to persons and is based on treaty or convention; 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 States 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 diplomatic representatives

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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 country, or on expiry of a reasonable period in which to do so. (Regina vs. Palacios 7 DLR 112)

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2. Diplomatic and Consular Immunity

Agents of Diplomatic Intercourse: 1. Head of State—enjoys the right to special protection for his physical safety and the preservation of his honor and reputation Principle of Exterritoriality—his quarters, archives, property and means of transportation are inviolate. He is immune from criminal and civil jurisdiction, except when he himself is the plaintiff, and is not subject to tax or exchange of currency restrictions.

2. Foreign Office—headed 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

DIPLOMATIC CORPS A body consisting of all diplomatic envoys accredited to the same local or receiving 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 plenipotentiary. Agreation—the process in appointment of diplomatic envoy where states resort to an informal inquiry as to the acceptability of a particular envoy, to which the receiving state responds with an informal conformity

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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 Nuncios—accredited to Heads of state, and other heads of mission of equivalent rank; b. Envoys, ministers and internuncios—accredited Heads of States; c. Charges d’ Affaires—accredited to Ministers of Foreign Affairs 2. Diplomatic Staff—those engaged in diplomatic activities and are accorded diplomatic rank 3. Administrative and Technical Staff—those employed in the administrative and technical service of the mission 4. Service Staff—those engaged in the domestic service of the mission

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4. Special diplomatic agents appointed by the head of the State 5. Envoys ceremonial

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 inviolability—he shall not be liable to any form of arrest or detention. 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Waiver of Immunities1. Diplomatic immunities can be waived, but the waiver cannot be made by the individual concerned since such immunities are not personal to him. 2. Waiver may be made only by the government of the sending state if it concerns the immunities of the head of mission. 3. In other cases, the waiver may be made either by the government or by the chief of mission. 4. Waiver of this privilege, however, does not include waiver of the immunity in respect of the execution of judgment; a separate waiver of the latter is necessary. 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

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6. Other privileges—includes freedom of movement and travel in the territory of receiving state; exemption from all personal services and military obligations; the use of the flag and emblem of the sending state on the diplomatic premises and 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 country, or on expiry; with respect to official acts—immunity shall continue indefinitely. These privileges are available even in transit, when travelling through a 3rd State on the way to or from the receiving state.

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Ma. Luisa Angeles Ramos

CONSULAR RELATIONS— Consul— A state agent residing abroad for various purposes but mainly in the interest of commerce and navigation. Kinds: 1. Consules missi—professional and career consuls, nationals of the appointing state 2. Consul electi—selected 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, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos

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 immunities—may be made by the appointing state  Crimes against diplomatic agents are International, not political, in nature

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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. Exequatur—authorization given to the consul by the sovereign of the receiving state, allowing him to exercise his function within the territory

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Rank: 1. Consul-general—heads several consular districts, or one exceptionally large consular district 2. Consul—takes charge of small district, town or port 3. Vice-consul—assist the consul 4. Consular agent—usually entrusted with the performance of certain functions by the consul.

Termination of consular mission: 1. Usual mode of terminating official relationship 2. Withdrawal of the exequatur 3. Extinction of the State 4. War  Severance of consular relations does not necessarily terminate diplomatic relations.

353

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

Sec. 2(a), PD 1069—extradition is the removal of an accused from the Philippines 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 imposed 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 states involved. In such case, extradition relies on the consent of the requested state 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 Jimenez is without any right to notice and hearing during the evaluation stage of an extradition 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 nature—it is sui generis; thus, Bill of Rights provisions on aspects of due process in criminal proceedings are not applicable)

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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 allegedly committed crime or was convicted of a crime.

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EXTRADITION

Secretary of Justice vs. Muñoz, G.R. No. 140520, December 18, 2000, provisional arrest of respondent was valid noting that the requirements of the Agreement on documentation and the finding of probable cause have been complied with.

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

Government of USA vs. Purganan, G.R. 148571, September 24, 2002, right to bail in extradition is not available; ultimate purpose of extradition proceedings in court is to determine whether the extradition request complies with the extradition 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 concerning respect for the promotion and protection of human rights. (Government of HK Special Administrative Region vs. Hon. Olalia, Jr., G.R. No. 153675, April 19, 2007)

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Right to Bail In Extradition Case

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(See Atty. Sandoval’s 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, Bernas, 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)

Archipelago—under the UNCLOS, it is a group of islands, interconnecting waters and other natural features which are so closely inter-related that such islands, waters and natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such.

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The Philippines is an archipelagic State under the UNCLOS. It is made up wholly of one or more archipelagos.

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, but criminal jurisdiction is determined according to the: a. English rule—the coastal State shall have jurisdiction over all offenses

committed on board the vessel except those which do not compromise the peace of the port (the Philippines adheres to this rule); b. French rule—flag state shall have jurisdiction over all offenses committed

on board a vessel except those which compromise the peace of the port.

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Internal or national waters-- bodies of water within the land mass, among them are rivers, bays and gulfs, straits, and canals.

Archipelagic waters—are the waters enclosed by the archipelagic baselines, regardless of their depth or distance from the coast. Jurisdiction: same rule as in internal waters, save for innocent passage of merchant vessels through archipelagic sea lanes

356

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

Philippine archipelagic waters may also be subject to the continuous and expeditious passage of foreign ships and aircraft—known as the right of archipelagic sea lane passage. All ships and aircraft enjoy this right through designated sea lanes and air routes. What is the legal status of the waters enclosed by the archipelagic baselines of the Philippines?  Philippine sovereignty extends to these waters which are called archipelagic waters under UNCLOS. It also extends to the airspace over archipelagic waters as well as their bed and subsoil, including the resources therein. Two (2) Kinds of Archipelago: 1. Coastal Archipelago—situated close to a mainland and may be considered a

part thereof. 2. Mid-Ocean Archipelago—situated in the ocean at such distance from the coasts of firm land. The Philippines is classified as mid-ocean archipelago just like Indonesia. The Philippines is not in any way connected physically with the Asia mainland. Maritime zones of the Philippines: (See also discussion under National Territory) 1. Territorial Sea—the belt of the sea located between the coast and the internal 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.

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But Philippine sovereignty over the archipelagic waters of the Philippines is restricted under UNCLOS. Ships of all states enjoy the right of innocent passage through archipelagic waters.

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The internal waters of the Philippines are now subject to right of innocent passage as well as to sea lanes for all foreign ships under the right of archipelagic sea lanes passage. The airspace above the internal waters within the archipelagic sea lanes passage is subject to the air routes for all foreign aircraft.

Jurisdiction: criminal jurisdiction over foreign merchant vessels shall be determined by the application of either the English rule or French rule. Innocent passage and involuntary entrance are recognized exceptions, provided that in case of involuntary entrance, the distress on the vessel must be real. 357

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

It is restricted by the right of archipelagic sea lane passage but only such portions of the territorial sea adjacent to the Philippine archipelagic waters traversed by the archipelagic sea lanes. Innocent passage—means navigation through the territorial sea of a state for the purpose of traversing that sea without entering internal waters, or of proceeding to or from internal waters. Passage is innocent if it is not prejudicial to the peace, good order or security of the coastal state. It is required that passage be continuous and expeditious, although a ship is allowed to stop and anchor if this is incidental on account of force majeure or is required in order to assist persons, ships or aircraft in danger or distress. Innocent passage Transit passage  Pertains only to navigation of ships  Includes rights of overflight  Requires submarine and other  No requirement specially applicable to underwater vehicles to navigate on the submarines surface and to show their flag  Can be suspended

 Cannot be suspended

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The territorial sea is a zone of Philippine sovereignty. However, it is subject to the right of innocent passage by ships of all states.

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Baseline—is a line from which the breadth of the territorial sea, the contiguous zone and the exclusive economic zone is measured in order to determine the maritime boundary of the coastal state. Types of baseline: ii. Normal Baseline Method iii. Straight Baseline method

 In designation of sea lanes and traffic  Designation of sea lanes and traffic separation schemes, the coastal state separation schemes is subject to adoption shall only take account of the by competent international organization recommendations of the competent upon proposal and agreement of states bordering the straits international organization As a rule, ships (not aircraft) of all states enjoy the right of innocent passage through the territorial sea (not through internal waters). It is understood, however, that the passage must be continuous and expeditious, except in cases of force majeure. 358

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

Submarines and other underwater craft are required to navigate on the surface and to show their flag. 2. Contiguous Zone—extends up to 12 nautical miles from the territorial sea; this

The Philippines does not have sovereignty over the contiguous zone. It is a zone of jurisdiction, not of sovereignty. This contiguous zone is not appurtenant to Philippine territory. For a coastal state to assume pertinent rights, it must make a specific claim to its contiguous zone. If no contiguous zone is claimed or declared, the rights that may otherwise pertain to the contiguous are deemed to be subsumed in those pertaining to the territorial sea. 3. Exclusive Economic Zone (EEZ)—shall not extend beyond 200 nautical miles

from the archipelagic baselines. The Philippines has sovereign rights over EEZ for the purpose of exploring, exploiting, conserving and managing the natural resources in this zone. In addition, it has jurisdictional rights with regard to artificial islands, environmental protection, and marine scientific research. The resources covered by the sovereign rights of the Philippines over its EEZ are the living and non-living resources in the superjacent waters of the sea-bed, as well as the resources of the sea-bed and its subsoil.

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Jurisdiction: Adjacent to the territorial sea, it is a zone where Philippines may exercise certain protective jurisdiction. The coastal state may exercise limited jurisdiction over the contiguous zone: a. To prevent infringement of customs, fiscal immigration or sanitary laws and regulations within its territory or territorial sea; and b. To punish violation of the above laws and regulations committed within its territory or in territorial sea.

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shall not exceed 24 nautical miles from the archipelagic baselines.

The Philippines is required to grant other states access to living resources in its EEZ. It must determine its capacity to harvest the living resources. If it does not have the capacity to harvest the entire allowable catch, it shall give other states access to the surplus of the allowable catch by means of agreements consistent with the UNCLOS.

359

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

Jurisdiction: the coastal state enjoys the right of exploitation of oil deposits and other resources in the continental shelf. In case of the continental shelf extends to the shores of another State, or is shared with another State, the boundary shall be determined in accordance with equitable principle. The continental shelf does not form part of the Philippine territory. The Philippines has the sovereign rights over the continental shelf for the purpose of exploring it and exploiting its natural resources. The natural resources covered by sovereign rights in the continental shelf consist of (a) mineral and other non-living resources of the sea-bed and subsoil, (b) together with living organisms which are sedentary. The UNCLOS describes these sovereign rights as exclusive in the sense that if the Philippines does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without its consent. Rights of the Philippines over the continental shelf “do not depend on occupation, effective or notional, or on any express proclamation.” The Philippines has the exclusive right to construct, to authorize and regulate the construction, operation and use of artificial islands and installations. Its jurisdiction over these is exclusive, in particular with respect to customs, fiscal, health, safety and immigration regulations. It has also exclusive right to authorize as well as to regulate drilling for all purposes.

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Continental shelf—it is the seabed and subsoil of the submarine areas extending beyond the Philippine territorial sea throughout the natural prolongation of the land territory. It extends up to: a. The outer edge of the continental margin; or b. A distance of 200 nautical miles from the archipelagic baselines, whichever is the farthest.

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Philippine territory is not enlarged by reason of EEZ. The legal regime of the EEZ limits Philippine rights to specified sovereign rights and to particular jurisdictional rights. No territorial acquisition is involved. In the EEZ, all states continue to enjoy the freedom of the high seas, subject to the rights of the Philippines as thus mentioned. Generally, the rules of international law pertaining to the high seas apply to EEZ.

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

Jurisdiction: may be exercised by the State on the high seas over the following: a. Its vessels—the flag State has jurisdiction over its public vessels wherever they are, and over its merchant vessels on the high seas. However, UNCLOS considered the flag of convenience controversy. b. Pirates—they are enemies of mankind; they may be captured on the open seas by the vessels of any State, to whose territory they may be brought for trial and punishment. c. Drug trafficking and slave trade—all States shall cooperate in the suppression of illicit traffic in narcotics and slave trade. d. Right to visit and search—use the law of neutrality—the vessels or aircraft of a belligerent State may visit and search any neutral merchant vessel on the open seas and capture it if found to be engaged in activities favorable to the other belligerent. e. Hot pursuit— the State authorities can pursue an offender up to high seas until he enters the territorial sea of another State. 1. The pursuit must commence from internal waters, territorial sea or contiguous zone, of pursuing State 2. The pursuit must be uninterrupted 3. It must be conducted by warship, military aircraft, or government ships authorized for the purpose

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High Seas—treated 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 beyond the jurisdiction and sovereign rights of States. The traditional view is freedom of the high seas, i.e., they are open and available, without restriction, to the use of all states for the purpose of navigation, overflight, submarine cables/pipelines, construction of artificial islands or any installations, fishing, mining, research, etc. however, this rule is subject to regulation arising from treaty stipulations.

¥say

Deep Sea—(as part of the common heritage of mankind) resources of the deep seabed owned by all States. All rights to the resources of the area are vested in mankind as a whole. The Enterprise (organ of the Deep Sea Bed Authority) shall explore and exploit the area. Open for peaceful purposes and for exploitation for the benefit of mankind; right of a coastal state to prevent or mitigate any grave and imminent danger to its coastline or environment; governed by the International Seabed Authority.

361

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

Philippine ship A ship may assume Philippine nationality if it flies Philippine flag and thus become the flag state. A ship has the nationality of the state whose flag it is entitled to fly. It is for the Philippines to decide the conditions by which it will accord a ship the right to fly its flag. It is required that there be “genuine link” between the Philippines and the ship. However, so far, no objective criteria have been established to determine the existence of a genuine link. If no genuine link is found to exist, no legal consequences have been defined. The result is that the genuine link requirement fails to command broad compliance.

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Freedom of navigation—refers to the right to sail ship on the high sea, subject to international law and the laws of the flag of the state.

362

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

General theory of criminal jurisdiction: General rule: Vessels on high seas are subject to authority of flag-state Exceptions: piracy, slave trade, hot pursuit, right of approach Article 97, UNCLOS—the rule today is that no penal or administrative proceedings may be instituted against the master of the ship except before the judicial or administrative authorities either of the: a. Flag-State; or b. State of which such person is a national. Arrival under Stress—involuntary entrance; it may be due to lack of provisions, unseaworthiness of the vessel, inclement weather, or other cases of force majeure, such as pursuit of pirates.

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Duties of the Philippines as a flag state with respect to the ship: 1. To maintain a registry of ships authorized to fly its flag; 2. To take jurisdiction over the internal affairs of the ship; 3. To ensure safety at sea of the ship with respect to construction, equipment, and seaworthiness as well as in regard to labor conditions, training of crew, maintenance of communication, and prevention of collisions; 4. To ensure that the ship is surveyed by a qualified surveyor of ships and is equipped with navigation equipment, nautical publications, and charts; 5. To ensure that the ship is manned by qualified master, officers and crew; and 6. To ensure that the officers and crew are conversant with and are required to observe international regulations concerning safety at sea, prevention of collisions, prevention, reduction and control of pollution, and maintenance of radio regulations.

¥say

The Philippines has exclusive jurisdiction over a Philippine ship on the high seas.

Flag State—the state whose nationality the ship possesses; for it is nationality that gives the right to fly a country’s flag. Flag of Convenience—foreign flag under which a merchant vessel is registered for purposes of reducing operating costs or avoiding government regulations. It is a flag of one country, flown by a ship owned by a citizen of another country. A vessel shall have the nationality of the flag it flies, provided there is a genuine link between the State

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

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¥say

(whose flag is flown) and the vessel, i.e., the State must effectively exercise jurisdiction and control in administrative, technical and social matters over the ship.

364