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POLITICAL LAW REVIEW

(Based on the Supreme Court Syllabus)

ATTY. ALFREDO G. DEL RIO

A. The Constitution

A.1. Definition, Nature and Concepts

A.1.1. ‘’Is a written instrument by which the fundamental powers of


government are established, limited and defined, and by which
these powers are distributed among several departments, for their
more safe and useful exercise for the benefit of the body politic”
(Miller, Lectures on the Constitution of the United States (1863).

A.1.2. Nature – That body of rules and maxims in accordance with which
the powers of sovereignty are habitually exercised (Cooley,
Constitutional Limitations, p. 1).

A.1.3. Concepts of Constitution

At present there are two recognized concepts of the constitution namely:

1. American or the Written Constitution

a) Generally the Americans conceive of a constitution as something


that must be written, yet this does not mean that the working or
operation of the American government is based entirely on the
provisions of such written constitution.

b) A constitution is the supreme law of the land which must serve as


basis of the acts of all the different branches and officials in the
government.

Note: A written constitution is referred as a rigid one than that of an unwritten


constitution which is flexible.

2. English or the Unwritten Constitution : consists of rules which have


not been integrated into a single, concrete form but are scattered in
various sources, such as statutes of a fundamental character, judicial
decisions, commentaries of publicists, customs and traditions, and
certain common law principles (Cruz, Constitutional law, pp. 4-5). It
is one which is found only in various documents or court decisions
and may be amended through ordinary legislation. It is flexible
(Bernas, The 1987 Philippine Constitution A Reviewer- Primer).

A.2. Parts of written constitution

A.2.1. Constitution of government: provisions setting up the government


structure, administration and defining the electorate.

A.2.2. Constitution of liberty: provisions which guarantee individual


fundamental liberties against government abuse, setting forth the
fundamental civil and political rights of the citizens.

A.2.3. Constitution of sovereignty: provisions which outline the modes


whereby the sovereign people may change the constitution.

A. 3. Amendments and Revisions

A.3.1. Amendment is the change in one or few specific provisions of the


constitution to improve specific parts or to add new provisions or
to suppress existing ones demanded by present conditions.

A.3.2. Revision is a re-evaluation of the whole document to determine


how and to what extent it should be altered. It could lead to the
entire structural change in the government.

A.3.3. Article XVII Amendments or revisions

“Section 1. Any amendment to, or revision of, this Constitution may be


proposed by:

(1) The Congress, upon a vote of three-fourths of all its members


(Congress sitting itself as a constituent assembly itself) or

(2) A constitutional convention.

TAKE NOTE OF THE REQUISITE VOTES:

1) ¾ votes for congress ( 3/4 of the Senate 3/4 of the House of


Representatives to convert itself into a constituent assembly which
means it could propose amendments or revision to the constitution;

2) 2/3 vote of all its members to call a constitutional convention;

3) majority vote to submit to the electorate the question of calling such


a convention.

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Precisely the provision states:

“The Congress, may, by a vote of two-thirds (2/3) of all its


members, call a constitutional convention, or by a majority vote of all
its members, submit to the electorate the question of calling such a
convention’’ (Section 3, Art. XVII)

RATIFICATION

“Any amendment to, or revision of, this Constitution under Section 1


hereof shall be valid when RATIFIED by a majority of the votes cast in a
plebiscite which shall be held not earlier than sixty (60) days nor later
than ninety (90) days after the approval of such amendment or revision
(Section 4, Art. XVII).

A.3.4. Amendments through Peoples’ Initiative

“Amendments (not revision) to this Constitution may likewise be


directly proposed by the people through initiative (HOW?) upon a petition of
at least twelve per centum (12%) of the total number of registered voters, of
which every legislative district must be represented by at least three per
centum (3%) of the registered voters therein. No amendment under this
section shall be authorized within five (5) years following the ratification of
this Constitution nor oftener than once every five (5) years’’ (Section 2, Art.
XVII).

A.4. Self-Executing and Non-Self-Executing Provisions

A.4.1. Provision which is complete in itself; is operative without the aid of


enabling legislation; sufficient rule is supplied in the grant or rights
for the enjoyment and protection of the people is self-executing.
Example: Bill of Rights

A.4.2 Provision providing a general principle is usually not self-executing.


Such provision needs an enabling statute.

A.5. General Provisions

A.5.1. “The flag of the Philippines shall be red, white, and blue, with a sun
and three starts as consecrated and honored by the people and
recognized by law” (Section 1, Art. XVI).

Note: The design of the Philippine flag may be changed via constitutional
amendment.

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A.5.2. “The Congress may, by law, adopt a new name for the country, a
national anthem, or a national seal, which shall all be truly
reflective and symbolic of the ideals, history, and traditions of the
people. Such law shall take effect only upon its ratification by the
people in a national referendum” (Section 2, Art. XVI).

A.5.3. “The State may not be sued without its consent” (Section 4).

A.5.4. “Sovereign is exempt from suit on the logical and practical ground
that there can be no legal right as against the authority that makes
the law on which the right depends” (Kawananakoa v. Polybank,
205 U.S. 349, 353 (1907; Republic v. Mirasol, 54 SCRA 831)
Nevertheless, it may be sued if it gives consent either express or
implied. It is also called as the Royal Prerogative of Dishonesty
(Outline Reviewer in Political Law, Nachura p. 23, 2005 Edition).

A.5.5. A suit is against the State:

1) When the Republic is sued by name or eo nomine

2) When the suit is against an unincorporated government


agency;

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.

In the above cited three (3) instances the State may or may not consent.

A.5.6. The following enjoy immunity from suit:

1) Other states on the principle of par in parem non habet


imperium. The State is personified with its head who is
inviolable. State agent has immunity as long as it can be
established that the action is within the ambit of the directives
of the sending State. He is liable if the suit is in his individual
capacity and his act done in bad faith or malice and ultra vires
from his directives;

2) The United Nations and its organs and specialized agencies.

Note: Immunity of states from suit is also a rule in international law.


Determination should be made whether the act of the state is an act jure
imperii (sovereign activity) or jure gestionis (business, commercial, or
proprietary acts ). If the act is jure imperii immunity follows; if jure
gestionis suit may be filed.

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A.5.7. State’s consent could be obtained expressly or impliedly.

1) Express consent is given when the law expressly grant authority


to sue the State or any of its agencies.

2) Implied consent is given:

a) When the state enters into a private contract except when


the contract is incidental to the performance of a
governmental function;
b) When the state sues a private party, unless the suit is
entered into only to resist a claim;
c) When the state enters into an operation that is essentially a
business operation unless the business operation is
incidental to a governmental function.

d) When the state sues and a counterclaim is made (PCGG v.


Sandiganbayan, G.R. No. 90478, Nov. 21, 1991).

A.5.8. Would execution follow after the State is held liable?

“The universal rule that where the State gives its consent to be
sued by private parties either by general or special law, it may limit
claimant’s action “only up to the completion of proceedings anterior
to the state of execution” and that the power of the Courts ends when
the judgment is rendered, since government funds and properties
may not be seized under writs of execution or garnishment to satisfy
such judgments, is based on obvious considerations of public policy.
Disbursements of public funds must be covered by the corresponding
appropriation as required by law. The functions and public services
rendered by the State cannot be allowed to be paralyzed or disrupted
by the diversion of public funds from their legitimate and specific
objectives, as appropriated by law” (Commissioner of Public
Highways v. San Diego, 31 SCRA 616, 625 (1970).

A.5.9. Money claims against the State as provided in Commonwealth Act No.
327 is filed with the COA. “Section 1. In all cases involving the
settlement of Accounts or claims, other than those of accountable
officers, the Auditor General(COA) shall act and decide the same
within sixty (60) days, exclusive of Sundays and holidays after their
presentation. If accountable officers, 100 days is the limit.

In a proper case, recourse could be had with Rule 65, Rules of


Court, by way of certiorari.

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A.5.10. ‘’The Armed Forces of the Philippines shall be composed of a citizen
armed force which shall undergo military training and serve as may
be provided by law. It shall keep a regular force necessary for the
security of the State’’(Section 4, Art. XVI – General Provisions).

A.5.11. ‘’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 (100% Filipino)
by such citizens’’ (Section 11 (1).

“The Congress shall regulate or prohibit monopolies in


commercial mass media when the public interest so requires. No
combinations in restraint of trade or unfair competition therein shall
be allowed.

“The ADVERTISING INDUSTRY is impressed with public


interest, and shall be regulated by law for the protection of consumers
and the promotion of the general welfare.

“Only Filipino citizens or corporations or associations at least


seventy per centum ( 70% ) of the capital of which is owned by such
citizens shall be allowed to engage in the advertising industry.

“The participation of foreign investors in the governing body


of entities in such industry (advertising) shall be limited to their
proportionate share in the capital thereof (30 per centum (30%), and
all the executive and managing officers of such entities must be
citizens of the Philippines.”

B. GENERAL CONSIDERATIONS

B.1. NATIONAL TERRITORY

“Section 1. 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
submarine 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’’ (Section 1, Art. I, The National
Territory).

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B.1.1. The Archipelago Doctrine: “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”.

B.1.2. Straight baseline method: Imaginary drawing of straight lines


connecting appropriate points on the coast without departing to any
appreciable extent from the general direction of the coast. The
internal waters and the territorial waters are divided by these
baselines.

B.1.3. The Philippine position with regard to internal waters is that it is not
subject to the right of innocent passage while the UNCLOS regard
internal waters as subject to innocent passage. Innocent passage
means that merchant vessels may pass through the internal waters as
long as the rights of the coastal state are not prejudiced. In case of
violation, the coastal state may pursue the offending vessel known in
international law as the doctrine of hot pursuit.

B.1.4. Under the UNCLOS dated April 30, 1982 and ratified by the
Philippines in August 1983, the territorial sea is 12 miles nautical
miles from the baseline; 12 nautical miles as contiguous zone; 200
nautical miles as the exclusive economic zone (EEZ) and 350
nautical miles as continental shelf. The contiguous zone and the
EEZ are not part of the territory of the Philippines but it
enjoys preferential rights over the marine resources within the
zones.

B.2. State Immunity (previously discussed under General Provisions)

B.3. Principles and Policies

B.3.1. ‘’The Philippines is a democratic and republican state. Sovereignty


(source of ultimate legal authority) resides in the people and all
government authority emanates from them” (Section 1, Art. II).

B.3.2. Political sovereignty is the sum total of all the influences in a state,
legal and non-legal, which determines the course of law.

B.3.3. Legal sovereignty is the supreme lawmaking authority.

B.3.4. Section 2 is the “political creed of the nation” (Vicente Sinco cited in
Bernas, 1987 Philippine Constitution: A Commentary p. 31).

B.3.5. A republican state is a state wherein all government authority


emanates from the people and is exercised by representatives
chosen by the people.

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B.3.6. “Democracy’’ is a political ideology that believed that government is
for the people, by the people and for the people. The Philippines is
not only representative or republican state but it also shares some
aspects of direct democracy like initiative and referendum.

B.3.7. Government is defined as “that institution or aggregate of


institutions by which an independent society makes and carries out
those rules of action which are necessary to enable men to live in a
social state, or which are imposed upon the people forming that
society by those who possess the power or authority of prescribing
them” ( U.S. v. Dorr, 2 Phil 332 cited in Bacani v. Nacoco, 100 Phil
468, 471 (1956).

B.3.8. Functions of government are classified into:

a) Constituent functions (governmental) (jus emperii) are those


that should be done as they constitute the very bonds of society.
Examples: The keeping of order; fixing of the legal relations
between spouses, parents and children, and definition and
punishment of crime

b) Ministrant functions (proprietary) (jus gestioni) those that may


be done (optional) for achieving a better life for the community.
Example: National Irrigation Authority

B.3.9. According to legitimacy, governments are either de jure, one


established by authority of the legitimate sovereign, and de facto
is one established in defiance of the legitimate authority.

De facto government are classified as:


1) government that gets possession and control 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;

2) established and maintained by military forces who invade and


occupy a territory of the enemy in the course of war; and

3) established as an independent government by the inhabitants


of a country who rise in insurrection against the parent state.

B.3.10. “The Philippines 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

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peace, equality, justice, freedom, cooperation, and amity with all
nations” (Section 2, Article II Declaration….).

B.3.10.1. The Philippines renounces AGGRESSIVE WAR.

B.3.10.2. The Philippines adopts generally accepted principles of


international law as part of the law of the land. This is
the doctrine of incorporation ,where there is no need
for a statutory enactment, as distinguished from the
doctrine of transformation which calls for the congress
of a state to pass a law adopting or adhering to an
international law. Such adherence to international law
is of judicial notice (Kuroda v. Jalandoni, 83 Phil. 171
(1949); Agustin v. Edu, 88 SCRA 195, 213 (February 2,
1979); J.B.L. Reyes v. Bagatsing, G.R. 65366, October
25, 1983).

B.3.10.3. The doctrine of incorporation is applied by our courts


when confronted by cases of conflict between
international law and municipal law e.g., constitution
and local laws. Before application of the doctrine,
efforts must be exerted to harmonize them. When the
conflict is diametrically opposed to each other, our
jurisprudence has shown to apply the municipal law for
the reason that courts are part and parcel of municipal
law and are bound to give due regard to all
circumstances.

B.3.10.4. Amity with all nations does not mean automatic


diplomatic recognition of all nations. Amity is an ideal
to be aimed at yet diplomatic recognition and
intercourse remain a matter of executive discretion.

B.3.11. “Civilian authority is, at all times, supreme over the military.
The armed force 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” (Section 3, Art. II
Declaration...)

B.3.11.1. The armed forces of the Philippines exist to protect the


people, to secure the sovereignty of the State, and to
preserve the integrity of the national territory.

B.3.12. “The prime duty of the government is to serve and protect the
people. The government may call upon the people to defend the

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State and, in the fulfilment thereof; all citizens may be required
to render personal military or civil service” (Section 4, Art. II)

B.3.12.1. Posse Comitatus – the force of the county. “The


government may call upon the people to defend the
State and, in the fulfilment thereof; all citizens may be
required to render personal military or civil service.’’

B.3.13. “The separation of Church and State shall be inviolable” (Section


6, Art. II).

I. Constitutional provisions on non-establishment of religion:

B.3.13.1. “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.

B.3.13.2. “x x x. Religious denominations and sects shall not be


registered” (Section 2 (5), Article IX –C).

B.3.13.3. “The party-list x x x., and such other sectors as may be


provided by law, EXCEPT religious sector’’ (Section 5
(2) last sentence, Art. VI).

B.3.13.4. “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’’ (Section 29 (2)
Art VI (prohibition on appropriation for sectarian
benefit).

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EXCEPTIONS TO THE NON-ESTABLISHMENT CLAUSE AND
PROHIBITION ON THE FREE EXERCISE OF RELIGION

B.3.14. “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” (Section 28 (3), Art. VI, Legislative
Department).

B.3.15. “No public money or property shall be appropriated x x x except


when such priest, preacher, minister, or dignitary is assigned to
the armed forces, or to any penal institution, or government
orphanage or leprosarium” (Section 29 (2), Art. VI, Legislative
Department).

B.3.16. “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” (Section 3 (3), Art. XIV).

B.3.17. “Educational institutions, other than those established by religious


groups, and mission boards, shall be owned solely by citizens of
the Philippines or corporations or associations at least sixty per
centum (60% capital, of which is owned by such citizens” (Section
4 (2), Article XIV).

B.3.18. “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
self-determination” (Section 7, Art. II Declaration).

Note of the following paramount considerations:


a) national sovereignty
b) territorial integrity
c) national interest
d) self-determination

B.3.18.1. “After the expiration in 1991 of the agreement between


the Republic of the Philippines and the United Sates of

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America concerning military bases, foreign military
bases, troops or facilities shall not be allowed in the
Philippines except under a treaty duly concurred in by
the Senate and, when the Congress so requires, ratified
by a majority of the votes cast by the people, in a national
referendum held for that purpose, and recognized as a
treaty by the other contracting State” Section 25, Article
XVIII, Transitory..).

Note: The phrase “and recognized as a treaty by the other


contracting state” was made because the Philippine
military bases with the United States was never ratified by
the United States Senate. Now, the other contracting State
must recognized the agreement as a treaty so that the
Philippines would consider the same as a treaty. In fact, the
executive (Ramos) attempt to forge a new bases treaty with
the United States but was not ratified by the Philippine
Senate.

B.3.18.2. “The Philippines 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” (Section 2,
Article II Declaration).

B.3.19. “The Philippines, consistent with the national interest, adopts and
pursues a policy of freedom from nuclear weapons in its territory”
(Section 8, Art. II).

B.3.19.1. The policy includes nuclear arms tests. The policy does
not prohibit the peaceful uses of nuclear energy.

B.3.20. “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” (Section 9, Art. II).

B.3.21. “The state shall promote social justice in all phases of national
development’ (Section 10, Art. 1I).

B.3.21.1. Social justice is the equalization of economic, political,


and social opportunities with special emphasis on the
duty of the state to tilt the balance of social forces by

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favoring the disadvantage in life. In the language of the
1935 Convention, it means justice for the common tao;
in the shibboleth of the 1973 Convention, those who have
less in life must have more in law ( Bernas, The 1987
Phlippine Constitution A Reviewer – Primer pp. 23).

B.3.22. “The State values the dignity of every human person and guarantee
full respect for human rights” (Section 11, Art. II).

B.3.22.1. Human rights – the supreme, inherent, and inalienable


rights to life, to dignity, and to self-development. It is
concerned with issues in both areas of civil and political
rights and economic, social, and cultural rights founded
on internationally accepted human rights and obligations
to which the Philippine government is a state party.

B.3.23. “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” (Section 12, Art. II Declaration…).

Note: The Constitution asserts protection of life from the time of


conception in order the prevent the State from adopting the U.S.
case of Roe v. Wade 410 U.S. 113 (1973) liberalizing abortion laws
up to the sixth month of pregnancy by allowing abortion anytime
during the first six months of pregnancy provided it can be done
without danger to the mother.

B.3.24. “The State recognizes the vital role of the youth in nation-building
and shall promote and protect their physical, moral, spiritual,
intellectual, and social well-being. It shall inculcate in the youth
patriotism and nationalism, and encourage their involvement in
public and civic affairs” (Section 13, Art. II Dec.).
B.3.24.1. Republic Act 7610 penalizing child prostitution and other
sexual abuses

B.3.25. “The State recognizes the role of women in nation building, and
shall ensure the fundamental equality before the law of women and
men” (Section 14, Art. II Dec.).

Note: R.A. 7192 Women in Development and Nation Building Act, Feb. 12,
1992.

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B.3.25.1. Relate also Section 14, Article XIII, Social Justice and
Human Rights: “The State shall protect working women
by providing safe and healthful working conditions,
taking into account their maternal functions, and such
facilities and opportunities that will enhance their welfare
and enable them to realize their full potential in the
service of the nation.”

B.3.25.2. “Petitioner’s policy neither to accept nor consider


disqualified from work women workers who contract
marriage runs afoul of the test of, and the right against
discrimination, which is guaranteed by the Constitution
(PTT Co. v. NLRC,, G.R. 118978, May 23, 1997).
Discrimination against married women cannot be adopted
as a general principle. Requirement that a woman
employee should remain unmarried may be justified as a
“bona fide occupation qualification”.

B.3.26. “The State shall protect and promote the right to health of the
people and instill health consciousness among them” (Section 15,
Art. II Decl.).

B.3.27. “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” (Section 16, Art. II Decl.)

B.3.27.1. This provision has conferred “standing” on minors duly


joined by their respective parents to challenge the
continued grant of Timber License Agreement (TLA)
for commercial logging purposes (Oposa v. Factoran,
Jr., 224 SCRA 792, 1993).

B.3.27.2. The Supreme Court upheld the authority of the Laguna


Lake Development Authority (LLDA) to protect the
community in the Laguna Lake area from the
deleterious effects of pollutants emanating from
garbage dumping and discharge of wastes over that of
the local governments’ claim of local autonomy (LLDA
v. CA G.R. 120865-71, December 7, 1995).

B.3.28. “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” (Section 17, Art. II, Decl).

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B.3.28.1. The provision is merely directory; the government is
free to balance the demands of education against
other imperatives of national interest (Guingona v.
Carague, 196 SCRA 221).
B.3.29. “The State affirms labor as a primary social economic force. It
shall protect the rights of workers and promote their welfare”
(Section 18, Art. II Decl).
B.3.29.1. The human factor has primacy over the non-human
factors in production.

B.3.29.2. “What concerns the constitution more paramount is


that such an employment be, above all, decent, just
and humane”. Employment in the Philippines is
inadequate resulting to migration of workers abroad
hence, the government is duty bound to provide
adequate protection, personally and economically,
while away from their families (Philippine Association
of Service Exporters v Drilon, 163 SCRA 386).

B.3.30. “The State shall develop a self-reliant and independent national


economy effectively controlled by Filipinos” (Section 19, Art. II,
Decl).

Note: This provision is a helpful guide in the interpretation of


provisions on national economy and patrimony (Art. XII)

B.3.31. “The State recognizes the indispensable role of the private


sector, encourages private enterprise, and provides incentives
to needed investments” (Section 20, Art. II, Decl. ).

B.3.31.1. This provision is a recognition of the importance of


private initiative in nation building. It is not a call to
abdicate duty to the people.

B.3.31.2. Although the constitution enshrines free enterprise as


a policy, it however reserves to the government the
power to intervene whenever necessary for the
promotion of the general welfare as provided in
Sections 6 and 19 of Art. XII National Economy and
Patrimony which provide:

“The use of property bears a social function, and all


economic agents shall contribute to the common good.
Individuals and private groups, including corporations,
cooperatives, and similar collective organizations, shall have
the right to own, establish, and operate economic enterprises,

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subject to the duty of the state to promote distributive justice
and to intervene when the common good so demands” (Section
6)

“The State shall regulate or prohibit monopolies when


the public interest so requires. No combinations in restraint of
trade or unfair competition shall be allowed” (Section 19).

B.3.32. “The State shall promote comprehensive rural development and


agrarian reform”(Section 21, Art. II, Decl.).

Note: Relate this provision to Sections 4-10 of Article XIII, Social


Justice and Human Rights as follows:

“Section 4. The State shall, by law, undertake an agrarian reform


program founded on the right of farmers and regular
farmworkers, who are landless, to own directly or
collectively the lands they till or, in the case of other
farmworkers, to receive a just share of the fruits thereof.
To this end, the State shall encourage and undertake the
just distribution of all agricultural lands, subject to such
priorities and reasonable retention limits as the Congress
may prescribe, taking into account ecological,
developmental, or equity considerations, and subject to the
payment of just compensation. In determining retention
limits the State shall respect the right of small landowners.
The State shall further provide for incentives for voluntary
land-sharing.”

“Section 5. The State shall recognize the right of farmers, farmworkers,


and landowners, as well as cooperatives, and other
independent farmers’ organizations to participate in the
planning, organization, management of the program, and
shall provide support to agriculture through appropriate
technology and research and adequate financial,
production, marketing, and other support services.”

“Section 6. The State shall apply the principles of agrarian reform or


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 communities to their ancestral lands.

16
The State may resettle landless farmers and farmworkers
in its own agricultural estates which shall be distributed to
them in the manner provided by law.”

“Section 7. The State shall protect the rights of subsistence fishermen,


especially of local communities to the preferential use of the
communal marine and fishing resources, both inland and
offshore. It shall provide support to such fishermen
through appropriate technology and research, adequate
financial, production, and marketing assistance, and other
services. The State shall also protect, develop, and conserve
resources. The protection shall extend to offshore fishing
grounds of subsistence fishermen against foreign intrusion.
Fish workers shall receive a just share from their labor in
the enjoyment of marine and fishing resources.”

“Section 8. The State shall provide incentives to landowners to invest


the proceeds of the agrarian reform program to promote
industrialization, employment creation, and privatization of
public sector enterprises. Financial instruments used as
payment for their lands shall be honoured as equity in
enterprises of their choice.”

“Section 9. The State shall, by law, and for the common good, undertake,
in cooperation with the private sector, a continuing
program of urban land reform and housing which will
make affordable cost decent housing and basic services to
underprivileged and homeless citizens in urban centers and
resettlement areas. It shall also promote adequate
employment opportunities to such citizens. In the
implementation of such programs the State shall respect the
rights of small property owners.”

“Section 10. Urban or rural poor dwellers shall not be evicted nor their
dwellings demolished, except in accordance with law and in
a just and humane manner.
No resettlement of urban or rural dwellers shall be undertaken
without adequate consultation with them and the communities where
they are to be located.

B.3.33 “The State recognizes and promotes the rights of indigenous


cultural communities within the framework of national unity
and development” (Section 22, Art II Decl.).

17
B.3.34 “The State shall encourage non-governmental, community based,
or sectoral organizations that promote the welfare of the
nation” (Section 23, Art. II Decl.).

Relate this provision to:

B.3.34.1. “The State shall respect the role of independent


people’s organizations to enable the people to pursue
and protect, within the democratic framework, their
legitimate and collective interests and aspirations
through peaceful and lawful means.”

“People’s organizations are bona fide associations of citizens


with demonstrated capacity to promote the public interest and with
identifiable leadership, membership, and structure. (Section 15, Art.
XIII, Social Justice and Human Rights).

B.3.35 “The State recognizes the vital role of communication and


information in nation-building” (Section 24, Art. II, Decl. and
Section 23 Art XVIII – Transitory Provisions)

Relate this provision to Sections 10 and 11, Art. XVI – General Provisions

“Section 11. The State shall provide the policy environment for the full
development of Filipino capability and the emergence of
communications structures suitable to the needs and
aspirations of the nation and the balanced flow of information
into, out of, and across the country, in accordance with a
policy that respects the freedom of speech and of the press.”

“Section 12. 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.

“Section 23 Art. XVIII “Advertising entities affected by


paragraph 2, Section 11 of Art. XVI of this Constitution shall have five
years from its ratification to comply on a graduated and proportionate
basis with thye minimum Filipino ownership requirement therein.

B.3.36 “The State shall ensure the autonomy of local governments”


(Section 25 Art. II, Decl.).

Note: Local autonomy under the Constitution is decentralization and


does not make the local governments sovereign within the State

18
or an imperium in imperio (Magtajas v. Pryce Properties, 234
SCRA 255 (1994); LLDA v. CA G.R. 120865-71, December 7,
1995).

B.3.37. “The State shall guarantee equal access of opportunities for


public service, and prohibit dynasties as may be defined by
law” (Section 26, Art II Decl.)

B.3.38. “The State shall maintain honesty and integrity in the public
service and take positive and effective measures against graft
and corruption” (Section 27, Art. II Decl.).

B.3.39. “Subject to reasonable conditions prescribed by law, the


State adopt and implements a policy of full public disclosure
of all its transactions involving public interest” (Section 28,
Art. II, Decl.).

B.4. SEPARATION OF POWERS; B.5 CHECKS AND BALANCES

The Philippines is a democratic and republican state.


Sovereignty resides in the people and all government authority
emanates from them (Section 1. Art. II). “A republican form of
government rests on the conviction that sovereignty should reside in
the people and that all government authority must emanate from
them. It abhors the concentration of power on one or a few,
cognizant that power when absolute, can lead to abuse, but it also
shuns a direct and unbridled rule by the people, a veritable kindling
to the passionate fires of anarchy. Our people have accepted this
notion and decided to delegate the basic state authority to principally
three (3) branches of government – the Executive, the Legislative, and
the Judiciary – each branch being supreme in its own sphere but with
constitutional limits and a firm tripod of checks and balances.”

The Executive branch is headed by the President, who is


elected by a direct vote of the people. The term of office of the
President, as well as the Vice-President is six (6) years, without re-
election on the part of the President and with re-election on the part
of the Vice-President provided that he shall not serve for more than
two (2) successive. As head of the Executive Department, the
President is the Chief Executive. He represents the government as a
whole and sees to it that all laws are faithfully enforced by the
officials and employees of his department. He has control over the
executive department, bureaus and offices. This means that he has
the authority to assume directly the functions of the executive
department, bureau and office or interfere with the discretion of its
officials. Corollary to the power of control, the President also has the

19
duty of supervising the enforcement of laws for the maintenance of
general peace and public order. Thus, he is granted administrative
power over bureaus and offices under his control to enable him to
effectively discharge his duties.

The President exercises general supervision over all local


government units and is also the Commander-in-Chief of the Armed
Forces of the Philippines.

Under the Presidential form of government, the executive and


legislative, though political entities are entirely separate, subject to
the mechanisms of checks and balances.

The legislative branch, which has the authority to enact,


amend or repeal laws, is the Congress. Congress is vested with the
tremendous power of the purse traditionally recognized in the
constitution that “no money shall be paid out of the Treasury except
in pursuance of an appropriation made by law.” It comprehends
both the power to generate money by taxation (the power to tax) and
the power to spend it (the power to appropriate). Of course, the
power to appropriate carries with it the power to specify the amount
that may be spend and the purpose for which it may be spent.

In a bicameral system, the Congress is composed of the Senate


and the House of Representatives.

The Senate is composed of twenty-four (24) Senators, who are


elected at large by the qualified voters.

The House of Representatives is composed of not more than


two hundred and fifty (250) members, unless otherwise fixed by law,
elected from legislative districts apportioned among the provinces,
cities, and metropolitan Manila area in accordance with the number
of their respective inhabitants, and on the basis of a uniform and
progressive ratio, and those who, as provided by law, shall be elected
through a party-list system of registered national, regional, and
sectoral parties or organizations.

Judicial power is vested in the Supreme Court and in such


lower courts as may be established by law. The Supreme Court has
the moderating power to determine the proper allocation of power
between the branches of government. When the “judiciary mediates
to allocate constitutional boundaries, it does not assert any
superiority over the other departments; it does not in reality nullify
or invalidate an act of the legislature, but only asserts the solemn and
sacred obligation assigned to it by the Constitution to determine

20
conflicting claims of authority under the Constitution and to establish
for the parties in an actual controversy the rights which that
instrument secures and guarantees to them.” “The judiciary may not
have the power of the sword, may not have the power of the purse,
but it has the power to interpret the Constitution, and the unerring
lessons of history tell us that rightly wielded, that power can make a
difference for good” (Chief Justice Reynato S. Puno).

Even if Congress has the power to define, prescribe and


apportion the jurisdiction of the various courts, Congress cannot
deprive the Supreme Court of its jurisdiction provided in the
Constitution. No law shall also be passed reorganizing the judiciary
when it undermines the security of tenure of its members. The
Supreme Court also has administrative supervision over all courts
and the personnel thereof, having the power to discipline or dismiss
judges of lower courts.

The Supreme Court is composed of a Chief Justice and


fourteen (14) Associate Justices. It may sit en banc or, in its divisions
of three, five or seven members. A member of the Supreme Court
must be a natural-born citizen of the Philippines, at least forty (40)
years of age and must have been for fifteen (15) years or more a judge
of a lower court or engaged in the practice of law in the Philippines.
Justices hold office during good behaviour until they reach the age of
seventy (70) years or become incapacitated to discharge the duties of
their office.

“The purpose of separation of powers and “checks and


balances” is to prevent concentration of powers in one department
and thereby to avoid tyranny. But the price paid for the insurance
against tyranny is the risk of a degree of inefficiency and even the
danger of gridlock. As Justice Brandeis put it, “the doctrine of
separation of power was adopted.... and not to promote efficiency but
to preclude the exercise of arbitrary power. 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” (Bernas, The 1987 Constitution: A
Commentary citing Myers v U.S. 272 U.S. 52, 293 (1926)

B.6. NON-DELEGATION OF POWERS

“Delegata potestas non potest delegari is the maxim of agency


which John Locke borrowed and formulated as a dogma of political
science. Chief Justice Taft offered the following explanation of the
origin and limitations on this idea as a postulate of constitutional law:
“In carrying out that constitutional division... it is a breach of the

21
national fundamental law if Congress gives up its legislative power
and transfers it to the President, or to the Judicial branch, of if by law
it attempts to invest itself or its members with either executive power
or judicial power. This is not to say that the three branches are not
co-ordinate parts of one government and that each in the field of its
duties may not invoke the action of the two branches in so far as the
action invoked shall not be as assumption of the constitutional field of
action of another branch. In determining what it may do in seeking
assistance from another branch, the extent and character of that
assistance must be fixed according to common sense and the inherent
necessities of the government coordination” (Corwin, Constitution of
the United States of America, 95 (1964), cited in Bernas, The 1987
Constitution: A commentary 1996 Edition).

The doctrine of separation of powers prohibits the delegation


of PURELY legislative power. The Supreme Court gave the reason
for the restriction:

“One of the settled maxims in constitutional law is that the


power conferred upon the legislature to make laws cannot be
delegated by the department to any other body or authority. Where
the sovereign power of the state has located the authority, there it
must remain; and by the constitutional agency alone the laws must be
made until the constitution itself is changed. The power to whose
judgment, wisdom, and patriotism this high prerogative has been
entrusted cannot relieve itself of the responsibility of choosing other
agencies upon which the power shall be devolved, nor can it substitute
the judgment, wisdom and patriotism of any other body for those to
which alone the people have seen fit to confide this sovereign trust.

“This doctrine is based on the ethical principle that such a


delegated power constitutes not only a right but a duty to be
performed by the delegate by the instrumentality of his own
judgment acting immediately upon the matter of legislation and not
through the intervening mind of another” (U.S. v. Barias, 11 Phil.
327, 329-330 (1908).

“At least three distinct ideas have contributed to the


development of the principle that legislative power cannot be
delegated. One is the doctrine of separation of powers of
government: Why go to the trouble of separating the three powers of
government if they can straightway remerge on their own motion?
The second is the concept of due process of law which precludes the
transfer of regulatory functions to private persons. Lastly, there is
the maxim of agency “Delegata potestas non potest delegari.

22
The doctrine of separation of powers does not, however,
absolutely prohibit delegation of legislative power. The Constitution
itself makes the delegation of legislative power to the President, the
Supreme Court, and the local government units, as follows:

1) Section 23, Article VI. (2) “In times of war or other national
emergency, the Congress may BY LAW, authorize the
President, for a limited period and subject to such 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.”

2) Section 28 (2) Article VI. “The Congress may, by law, authorize


the President to fix within specified limits, and subject to such
limitations and restrictions as it may impose, tariff rates, import
and export quotas, tonnage and wharfage dues, and, and other
duties or imposts within the framework of the national
development program of the government.”

3) Section 5 (5), Article VIII. “Promulgate rules concerning the


protection and enforcement of constitutional rights, pleadings,
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.”

4) Section 48 Local Government Code of 1991 “Local legislative


power shall be exercised by the sangguniang panlalawigan for the
province; the sangguniang panlungsod for the city; the
sangguniang bayan for the municipality; and the sangguniang
barangay for the barangay.”

To be valid, however, the Supreme Court delineated the


metes and bounds by coming up with two tests:

“There are two accepted tests to determine whether or not


there is a valid delegation of legislative power, viz. the
completeness test and the sufficient standard test. Under the
FIRST TEST, the law must be COMPLETE in all its terms and
conditions when it leaves the legislative such that when it reaches
the delegate the only thing he will have to do is to enforce it.
Under the SUFFICIENT STANDARD TEST, there must be

23
adequate guidelines or limitations in the law to map out the
boundaries of the delegate’s authority and prevent the delegation
from running riot.”

“The validity of delegating legislative power is now a quiet


area in our constitutional landscape. As sagely observed,
delegation of legislative power has become an inevitability in light
of the increasing complexity of the task of government. Thus,
courts bend as far back as possible to sustain the constitutionality
of laws which are assailed as unduly delegating legislative
powers. Citing Hirabashi v. United States as authority, Mr.
Justice Isagani A. Cruz states: “that even if the law does not
expressly pinpoint the standard, the courts will bend backward
to locate the same elsewhere in order to spare the statute, if it
can, from constitutional infirmity” (Eastern Shipping Lines, Inc.,
v. POEA, 89, SCAD 335, 281 SCRA 330 (1997).

B.7 FORMS OF GOVERNMENT

As to legitimacy, governments are classified into de facto and


de jure. A government de jure is one established by authority of the
legitimate sovereign. A government de facto is one established in
defiance of the legitimate sovereign. It is further classified as: a)
government that gets possession and control of, or usurps, by force or
by the voice of the majority; b) that which is established and
maintained by invading military forces; c) that established as an
independent government by inhabitants of a country who rise in
insurrection against the parent state (Bernas, The 1987 Constitution
A comprehensive Reviewer 2006 Edition).

As to form, governments are classified into presidential and


parliamentary. The underlying principle in presidential form of
government is “separation of power” while in parliamentary form of
government: a) the members of the government or cabinet or the
executive arm are simultaneously members of the legislature; b) the
cabinet is a committee of the legislature, c) the Prime Minister is at
the apex of the pyramidal structure; d) the government or cabinet
remains in power only for as long as it has the support of the
majority of the legislature e) both have control devices with which
each can demand of the other immediate political responsibility.
Legislature may cast a vote of non-confidence and the government is
ousted while government has the power to dissolve the legislature and
call for new elections.

C. LEGISLATIVE DEPARTMENT

C.1. Who may exercise legislative power?

24
C.1.1. “The Legislative power shall be vested in the Congress of the
Philippines 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” (Section 1, Art. VI)

C.1.2. “Local legislative power shall be exercised by the sangguniang


panlalawigan for the province; the sangguniang panglunsod for
the city; the sangguniang barangay for the barangay” (Section 48,
Local Government Code of 1991.

C.1.3. “The Congress shall, as early as possible, provide for a system of


initiative and referendum, and the exceptions therefrom, whereby
the people can directly propose and enact laws or approve or
reject any act or law or part thereof passed by the Congress or
local legislative body after the registration of a petition therefor
signed by at least ten per centum of the total number of registered
voters, of which every legislative district must be represented by
at least three per centum of the registered voters thereof (Section
32, Art. VI)

C.1.3.1 In compliance with the constitutional mandate, Congress


passed Republic Act 6735 signed into law by President C.
Aquino on August 4, 1989 known as An Act Providing for
a System of Initiative and Referendum.

C.1.3.2 Initiative is the power of the people to propose


amendments to the Constitution or to propose and enact
legislation through an election called for the purpose.
There are three kinds of initiative, namely:

a) Initiative on the Constitution which refers to a petition


proposing amendments to the Constitution;

b) Initiative on Statutes which refers to a petition


proposing to enact a national legislation; and

c) Initiative on Local Legislation which refers to a


petition proposing to enact a regional, provincial, city,
municipal or barangay law, resolution or ordinance.

C.1.3.3 What is an indirect initiative?

It is the exercise of initiative by the people


through a proposition sent to Congress or local
legislative body for action (Section 2, R.A. 6735).

C.1.3.4 What is a referendum?

25
It is the power of the electorate to approve or
reject legislation through an election called for the
purpose. It may be a referendum for statute or
referendum on local laws.

C.2 HOUSES OF CONGRESS

C.2.1 Senate

C.2.1.1 Composition and election of Senate

“The Senate shall be composed of twenty-four


(24) Senators who shall be elected at large by the qualified
voters of the Philippines, as may be provided by law
(Section 2, Art. VI).

C.2.1.2 Qualification of Senators

“No person shall be a Senator unless he is a


natural- born citizen of the Philippines, and, on the day
of the election, is at least thirty-five (35) years of age,
able to read and write, a registered voter, and a
resident of the Philippines for not less than two (2)
years immediately preceding the day of the election”
(Section 3, Art. VI).

Note: “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” (Section 2, Art IV Citizenship).

C.2.2 The term of office of Senators; voluntary renunciation non-


interruption of continuity of service for the full term of election

“The term of office of the Senators shall be six (6) years


and shall commence, unless otherwise provided by law, at noon
on the thirtieth (30) day of June next following their election.

“No Senator shall serve for more than TWO


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, Art. VI).

26
C.2.2.1. Does the limitation of election mean that a Senator who
has served two consecutive terms must wait for six years
before he can run again for the Senate? “The answer
given to this question was that a Senator could run again
three (3) years after the expiration of his second term”
(Bernas, The 1987 Constitution: A Commentary citing II
Record id at 590).

C. 3 House of Representatives

“Section 5. (1) “The House of Representatives shall be composed of not


more than two hundred fifty members, unless otherwise
fixed by law, who shall be elected from legislative districts
apportioned among the provinces, cities, and the
Metropolitan Manila Area in accordance with the number
of their respective inhabitants, and on the basis of a
uniform and progressive ratio, and those who, as provided
by law, shall be elected through a party-list system of
registered national, regional, and sectoral parties or
organizations.

“(2) The party-list representatives shall constitute twenty per


centum of the total number of representatives including
those under the party list. For three consecutive terms
after the ratification of this Constitution, one-half of the
seats allocated to party list representatives shall be filled,
as provided by law, by selection or election from the
labor, peasant, urban poor, indigenous cultural
communities, women, youth, and such other sectors as
may be provided by law, except the religious sector.

“(3) 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, or each province, shall have at least one
representative.

“(4) Within three years following the return of every census,


the Congress shall make a reapportionment of legislative
districts based on the standards provided in this section”
(Article VI).

Note: The sectoral representative is now a thing in the past


because sectoral representation in the house was only
good for three (3) years after the ratification of the 1987
Constitution. At present, we have the district and party
representatives.

27
C.3.1 District Representatives and apportionment: Macias v. Comelec,
3 SCRA 1, 7-8 (1961) “The underlying principle behind the rule
on apportionment is the concept of equality of representation
which is a basic principle of republicanism”

C.3.2 Section 5 (3) that “Each legislative district shall comprise as far as
practicable, contiguous, compact and adjacent territory” is a
prohibition of gerrymandering. Gerrymandering is a form of
redistricting in which electoral districts or constituency
boundaries are manipulated for electoral advantage. It derived
from Mr. Eldridge Gerry 1744-1864 Massachusetts Governor
1810-1812.

C.3.2.1 Observance of the constitutional mandate on


apportionment of representative district is a
JUSTICIABLE QUESTION cognizable by the courts
(Macias v. Comelec 3 SCRA 1, 7-8 (1961).

C.4. Party-list System Act (R.A. 7941)

It is a system of proportional representation in the election of


representatives to the House of Representatives from national,
regional and sectoral parties or organizations or coalitions thereof
registered with the Commission on Elections.

C.4.1 Qualifications of Party-List nominees – Natural born citizen of


the Philippines, a registered voter, a resident of the Philippines
for at least one year immediately preceding the day of election,
able to read and write, a bona-fide member of the party or
organization which he seeks to represent for at least 90 days
preceding the day of the election, and is at least 25 years of age
on the day of the election. With regard to the youth sector, he
must be at least 25 years of age but not more than 30 years of
age on the day of election. Any youth representative who
attains the age of 30 during his term shall be allowed to
continue in office until the expiration of his term.

C.4.2 Manner of Voting. Every voter shall be entitled to two votes: the
first is a vote for the candidate for member of the House of
Representatives in his legislative district and the second, a vote
for the party, organization or coalition he wants represented in
the House of Representatives; provided that a vote cast to a
party, sectoral organization or coalition not entitled to be voted
for shall not be counted.

28
C.4.3 Number. The party list representatives shall constitute 20% of
the total number of the members of the House of
Representatives including those under the party list.

“The Constitution and R.A. 7941 mandate at least four


inviolable parameters, as follows:

a) the 20% allocation: the combined number of all party list


congressmen shall not exceed 20% of the total membership
of the House of Representatives;

b) the 2% threshold – only those parties garnering a minimum


of 2% of total valid votes cast for the party-list system are
qualified to have a seat in the House;

c) the three seat limit: each qualified party, regardless of the


number of votes it actually obtained, is entitled to a
maximum of three seats, one qualifying and two additional;
and

d) proportional representation: the additional seats which a


qualified party is entitled to is computed “in proportion to
the total number of votes”.

C.5. Legislative privileges, inhibitions and disqualifications

C.5.1 Privilege from arrest: Section 11. Art. VI – “A senator or member


of the House of Representatives shall, in all offenses punishable
by not more than six years imprisonment (prison mayor), 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 committee
thereof.”

C.5.1.1 Relate this Constitutional provision to Art. 145 of the


Revised Penal Code, which states:

“The penalty of prision mayor shall be imposed upon any


person who shall use force, intimidation threats or fraud to
prevent any member of the National Assembly from attending
the meetings of the assembly or any of its committees or
subcommittees or divisions thereof, from expressing his opinions
or casting his vote; and the penalty of prision correccional ( 6
months and 1 day to 6 years) shall be imposed upon any public
officer or employee who shall, while the Assembly is in regular or
special session, arrest or search any member thereof, except in
case such member has committed a crime punishable under this

29
Code by a penalty higher than prision mayor” (6 years and 1 day
to 12 years)

C.5.1.2 “while Congress is in session” means from opening until


final adjournment.

C.5.1.3 Privilege of speech and of debate. “No member shall be


questioned nor be held liable in any other place for any
speech or debate in the Congress or in any committee
thereof.”

Note: This is also known as ‘the parliamentary privilege of


speech and debate”. The purpose of which “is to enable
and encourage a representative of the public to discharge
his public trust with firmness and success” for “it is
indispensably necessary that he should enjoy the fullest
liberty of speech, and that he should be protected from the
resentment of every one, however powerful, to whom the
exercise of that liberty may occasion offense” (Tenny v.
Brandhove, 341 U.S. 367).

C.5.1.4 “But it does not protect him from responsibility before


the legislative body itself whenever his words and
conduct are considered by the latter disorderly or
unbecoming a member thereof” (Osmena, Jr. v.
Pendatun 109 Phil. 863, 868-69 (1960); Jimenez v.
Cabangbang 17 SCRA 876). Precisely, our 1987
Constitution provides: “Each House may determine the
rules of its proceedings, punish its members for
disorderly behaviour, and with the concurrence of two-
thirds (2/3) of all its members, suspend or expel, a
member. A penalty of suspension, when imposed, shall
not exceed sixty (60) days”.

C.6 Inhibitions

“No Senator or member of the House of Representatives may


personally appear as counsel before any court of justice or before the
Electoral Tribunals, or quasi-judicial or other administrative bodies.
Neither shall he, directly or indirectly, be interested financially in any
contract with, or in any franchise or special privilege granted by the
Government or any subdivision, corporation, or its subsidiary, during
his term of office. He shall not intervene in any matter before any office
of the Government for his pecuniary benefit or where he may be called
upon to act on account of his office” (Section 14, Art. VI).

30
C.6.1 A member of the Senate or member of the House of
Representatives is prohibited to “personally appear” as counsel.
A law firm has a personality separate and distinct from the
partners.

C. 7 Disqualifications

“No Senator of 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. 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” (Section 13, Art. VI).

C.7.1 No forfeiture shall take place if the member of Congress holds the
other government office in an ex-officio (by reason of the office
he holds) capacity e.g. Chairman of the Committee on Justice
and as a member of the Judicial and Bar Council). However,
there shall be automatic forfeiture the moment a member of
Congress assumes such other government office (Adaza v.
Pacana, 135 SCRA 431). The disqualification in the second
sentence applies for the duration of the six-year term even if he
(member of Congress) resigns before the end of his term.

C.8 Quorum and voting majorities

“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” (Section 16 (2)

C.8.1 The basis in determining the existence of a quorum in the Senate


is the total number of Senators who are in the country and within
the coercive jurisdiction of the Senate (Avelino v. Cuenco, 83
Phil. 17)

C.8.2 There are three kinds of sessions in Congress, to wit:

C.8.2.1 Regular session. “Congress shall convene once every year


on the fourth Monday of July, unless a different date is
fixed by law, and shall continue for such number of days
as it may determine until thirty days before the opening
of its next regular session, exclusive of Saturdays,
Sundays and legal holidays (Section 15, Art. VI).

31
C.8.2.2 Special session. “The President may call a special session
at any time”(Section 15, Art VI) The purpose of the
special session is for Congress to consider urgent
legislative measures the President may want. However,
it does not preclude Congress to consider measures
other than that of the President. In fact, the Congress
may hold session the whole year round without the need
of special session called for by the President.

C.8.2.3 Joint session – both houses assembled either voting jointly


or voting separately

Voting separately on matters pertaining to:

a) Section 4, Article VII – Canvassing of votes for presidential


and vice-presidential elections;

b) Section 11, Article VII - Incapacity of the President to


discharge his functions;

c) Section 9, Art. VII - Confirmation of nomination of the Vice-


President (majority)

d) Section 23, Art. VI - Declaration of war (2/3 vote)

e) Section 1, Art. XVII - Proposal to amend the Constitution

Voting jointly

a) Section 18, Art. VII - Revocation or extension of proclamation


suspending the privilege of the writ of habeas corpus or
placing the Philippines under martial law.

C.9 Discipline of members

“Each House may determine the rules of its proceedings, punish


its members for disorderly behaviour, and with the concurrence of two-
thirds of all its members, suspend or expel, a member. A penalty of
suspension, when imposed, shall not exceed sixty (60) days” (Section 16
(3), Art. VI).

C.9.1 “That the House is the judge of what constitutes disorderly


behaviour, not only because the Constitution has conferred
jurisdiction upon it, but also because the matter depends mainly
on factual circumstances of which the House knows best but
which cannot be depicted in black and white for presentation to,
and adjudication by the Courts (Osmena Jr. v. Pendatun 109

32
Phil. 863 (1960). When, however, the legislative rule affects
private rights, the courts cannot altogether be excluded. When
the construction to be given to a rule affects persons other than
the members of the legislature, “the question presented is of
necessity a judicial one” (Bernas, The 1987 Constitution: A
Commentary citing U.S. Smith 286 U.S. 6 (1932); Vera v.
Avelino, 77 Phil. 192, 206 (1946).

C.10 Electoral Tribunals and the Commission on Appointments

A. Nature

B. Powers

Section 17. Article VI. “The Senate and the House of Representatives shall
each have an Electoral Tribunal which shall be the sole judge of
all contests relating to the election, returns, and qualifications of
their respective members. Each Electoral Tribunal shall be
composed of nine (9) members, three of whom shall be Justices of
the Supreme Court to be designated by the Chief Justice, and the
remaining six (6) shall be members of the Senate or the House of
Representatives, as the case may be, who shall be chosen on the
basis of proportional representation from the political parties
and the parties or organizations registered under the party-list
system represented therein. The senior justice in the Electoral
Tribunal shall be the chairman.”

C.10.1 The electoral tribunals are created as independent and


non-partisan courts insulated from partisan influence
and consideration. Members of the electoral tribunals
enjoy security of tenure; their membership may be
terminated for a just cause or the expiration of
congressional term, death, resignation from the political
party, formal affiliation with another political party or
removal for other valid and legal grounds (Bondoc v.
Pineda 201 SCRA 792).

C.10.2 The jurisdiction of the Electoral Tribunal to be the sole


judge will take effect only after a valid proclamation of a
winner. In the absence of an election contest, the
Electoral Tribunals are without jurisdiction (Aquino v
Comelec, 248 SCRA 400).

C.10.3 In Abbas v. Senate Electoral Tribunal, 166 SCRA 651, the


Supreme Court held that it cannot order the
disqualification of the Senators-members of the Electoral
Tribunal who are respondents in the electoral protest

33
because the House Tribunal has its mandate under the
Constitution. Also, the Supreme Court, under its
expanded jurisdiction (grave abuse of discretion),
invalidated final vote tally made by the Electoral
Tribunal without supporting evidence (Lerias v. House
Electoral Tribunal 202 SCRA 808 (1991).

C.11 The Commission on Appointments

“Section 18, Art. VI. There shall be a Commission on


Appointments consisting of the President of the Senate, as ex-officio
Chairman, twelve (1) Senators and twelve (12) members of the House
of Representatives, elected by each House on the basis of proportional
representation from the political parties and parties or organizations
registered under the party-list system represented therein. The
Chairman of the Commission (Senate President) shall not vote, except
in case of a tie. The Commission shall act on all appointments
submitted to it within thirty (30) session days of the Congress from
their submission. The Commission shall rule by MAJORITY VOTE
of all its members.”

C.11.1 The Commission on Appointments acts as a legislative check


on the appointing authority of the President. Appointments
issued by the President to the key officials enumerated in
Section 16 Article VII need the consent of the Commission on
Appointments for them to be effective.

C.11.2. Section 16, Article VII. “The President shall nominate and
with the consent of the Commission on Appointments,
appoint the

1) heads of the Executive Departments,

2) other public ministers and consuls, or

3) officers of the armed forces from the rank of colonel or


naval captain,

4) and other officers whose appointments are vested in him in


this Constitution ( sectoral representatives under Section
7 Art. XVIII; and members of the Judicial and Bar
Council under Section 8 (2) Art. VIII).

He shall appoint all other officers of the


government whose appointments are not otherwise
provided by law, and those whom he may be authorized
by law to appoint. The Congress may, by law, vest the

34
appointment of other officers lower in rank in the
President alone, in the courts, or in the heads of
departments, agencies, commissions, or boards.

“The President shall have the power to make


appointments during the recess of the Congress (ad-
interim appointments), whether voluntary or compulsory,
but such appointments shall be effective only

1) until the disapproval by the Commission on


Appointments or

2) until the next adjournment of the Congress.”

C.11.3. Congress may not expand the list of those whose


appointment needs confirmation by the Commission on
Appointments (Calderon v. Carale, 208 SCRA 254 (1992);
Tarrosa v. Singson 232 SCRA 553 (1994).

C.11.4 A regular appointment is one made by the President while


Congress is in session and will take effect after confirmation
by the Commission on Appointments. When approved, the
appointment shall continue until the end of the term of the
appointee or at the pleasure of the President.

C.11.5 An ad-interim appointment is one made by the President


while Congress is in recess or not in session to meet the
exigencies of the service. It takes effect upon acceptance by
the appointee but ceases to be valid when disapproved by the
Commission on appointments or upon the next adjournment
of Congress. Disapproval by adjournment of Congress is
“by-passed” through inaction by the Commission on
Appointments.

C.11.6 When an ad-interim appointment is by-passed for lack of time


or failure of the Commission on Appointment to act on it, no
CA’s decision yet and the President has free hands to renew
such ad-interim appointment (Matibag v. Benipayo, G.R. No.
149036, April 2, 2002).

C.11.7 The clause “officers of the armed forces from the rank of
colonel or naval captain” pertains to the military officers. It
does not include the Philippine National Police and the
Philippine Coast Guard which is now under the Department
of Transportation and Communications (DOTC) (Soriano v.
Lista, G.R. No. 153881, March 24, 2003).

35
C.12 Powers of Congress

C.12.1 Legislative

C.12.1.1 Legislative Inquiries and the Oversight Functions

“The Senate or the House of Representatives or


any of its respective committees may conduct
inquiries in aid of legislation in accordance with its
duly approved rules of procedure. The rights of
persons appearing in or affected by such inquiries
shall be respected”(Section 21, Art. VI).

C.12.1.2 Section 21 provides the power and the limits on the


power of legislative investigation as follows:

a) it must be “in aid of legislation”;

b) it must be in accordance with its duly approved


rules of procedure; and

c) the rights of persons appearing in such inquiries


shall be respected.

C.12. 2 The Oversight Functions

“It is the proper duty of a representative to look


diligently into every affair of government and to talk much
about what it sees. It is mean to be the eyes and the voice, and
to embody the wisdom and will of its constituents. Unless
Congress has and use every means of acquainting itself with
the acts and disposition of the administrative agents of
government, the country must be helpless to learn how it is
being served. The informing function of Congress should be
preferred even to its legislative function.” (Woodrow Wilson,
1885)

“Virtually every democratic legislature and parliament


has the authority to undertake and conduct oversight in almost
every area of government activity …The House (of
Representatives) can exercise competent, effective oversight to
prod the Executive into more timely, proper and correct
action… Information is critical to legislative oversight…
Congressional oversight is about accountability and rule of
law” (Rep. Roilo Golez, 2005).

36
“Congressional oversight is an integral part of a
democratic system of government. The exercise by the
legislature of this power is essential if transparency, integrity
and efficiency in the performance of the functions of the other
branches of government are to be maintained”(Rep. Joseph
Emilio A. Abaya, Jr. 2005)

C.12.3 Section 1, Art. VI. “The legislative power shall be vested in the
Congress of the Philippines 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”.”

C.12.4 1.4 Legislative power is the authority to enact, amend or repeal


laws (keyword: EAR).

C.12.5 1.5 There are two kinds of legislative power in republican


systems:

a) Original legislative power - which is possessed by the


sovereign people;

b) Derivative legislative power - which has been delegated by


the sovereign people to legislative bodies and is
subordinate to the original power of the people. The
Congress of the Philippines possessed this derivative
legislative power.

C.12.6 1.6 Legislative power is further classified into:

a) constituent – one pertaining to the power to amend or


revise the Constitution

b) ordinary – to pass ordinary laws.

C.13 Bicameral Conference Committee

“In a bicameral system bills are independently processed by


both Houses of Congress. It is not unusual that the final version
approved by one House differs from what has been approved by the
other. The “conference committee” consisting of members nominated
from both Houses, is an extra-constitutional creation of Congress who
function is to propose to Congress ways of reconciling conflicting
provisions found in the Senate version and in the House version of a
bill. It performs a necessary function in a bicameral system.
However, since conference committees have merely delegated
authority from Congress, they should not perform functions that
Congress itself may not do. Moreover, their proposals need

37
confirmation by both Houses of Congress (Bernas, The 1987
Constitution: A Commentary, p702, 1996 ed.)

In Philippine Judges Association v. Prado, 227 SCRA 703, the


court ruled that the jurisdiction of the Conference Committee is not
limited to resolving differences between the Senate and House
versions of the bill, it may propose an entirely new provision”. Suffice
it to say, however, that their proposal need confirmation by both
House of Congress.

C.14 Limitations on Legislative Power

C.14.1 Limitations on legislative power could be: Substantive and


Procedural.

Substantive limitations could also be express or


implied. Substantive express limitations are those which the
Constitution expressly provide, e.g. bill of rights;
appropriations that must emanate from the House of
Representatives; no law granting appellate jurisdiction to the
Supreme Court; while, the implied limitations are: a) the non-
delegation of legislative powers, and b) prohibition against the
passage of irrepealable laws.

Procedural limitations are:

a. Bill shall embrace only one subject;

b. Three (3) readings on separate days;

c. No amendment in the last reading;

d. Yeas and nays votes entered into the journal (Section 26,
Art. VI).

C.14.2 “Art. VI. Section 24. “All appropriation, revenue or tariff


bills, bills authorizing increase of the public debt, bills of
local application, and private bills shall originate exclusively
in the House of Representatives” (Keyword: APRIL). Note:
This is a typical example of procedural limitation.

C.14.3 Doctrine of Augmentation. Section 25 (5) “No law shall be


passed authorizing any transfer of appropriations; however
the President, the President of the Senate, the Speaker of
the House of Representatives, the Chief Justice of the
Supreme Court, and the Heads of the Constitutional
Commissions, may by law, be authorized to augment any

38
item in the general appropriations law for their respective
offices from savings in other items of their respective
appropriations.”

C.15 Presidential Veto and Congressional Override

C.15.1 Section 27, Art. VI.

(1) “Every bill passed by the Congress shall, before it becomes a


law, be presented to the President. If he approves the same, he
shall sign it; otherwise, he shall veto it and return the same
with his objections to the House where it originated, which shall
enter the objections at large in its journal and proceed to
reconsider it. If, after such reconsideration, two thirds (2/3) of
all the members of such House shall agree to pass the bill, it
shall be sent, together with the objections, to the other House
by which it shall likewise be reconsidered, and if approved by
two-thirds (2/3) of all the members of that House, it shall
become a law. In all such cases, the votes of each House shall
be determined by yeas and nays, and the names of the
members voting for or against shall be entered in its journal.
The President shall communicate his veto of any bill to the
House where it originated within thirty (30) days after the date
of receipt thereof; otherwise, it shall become a law as if he had
signed it.

(2) The President shall have the power to veto any particular item
or items in an appropriation, revenue, or tariff bill, but the
veto shall not affect the item or items which he does not object.

C.15.1.1 The bill becomes a law in any of the following cases:

a) When the President approves the same and signs it;

b) When the President does not act on the bill within thirty
(30) days after the receipt of the bill, the bill
automatically becomes a law;

c) When Congress overrides the President’s veto by 2/3 vote


in the House of origin and 2/3 vote to the other House.

d) Laws shall take effect after fifteen (15) days following the
completion of their publication in the official gazette or in
a newspaper of general circulation, unless the law
otherwise provide (Art. 22 NCC, as amended by E.O.
200)

39
Should the President disapprove the bill, he shall
return the same, with his objections thereto contained in
his veto message, to the House where it originated and
which shall enter the objections at large in its journal.
The President’s veto is overridden upon a vote of two-
thirds of ALL members of the House of origin and the
other House. Yeas and nays are entered into the journal
of each House.

Note: What matters are required to be entered on the


Journal?

Held: 1) The yeas and nays on the third and final reading of a
bill (Art. V, Section 26 (2);

2) The yeas and nays on any question, at the request of


one-fifth (1/5) of the members present (Art. VI,
Section 16 (4);

3) The yeas and nays upon repassing a bill over the


President’s veto (Art. VI, Section 27 (1); and

4) The President’s objection to a bill he had vetoed


(Section 27 (1) (Arroyo v. De Venecia, 277 SCRA
268, 298, August 14, 1997)

C.15.1.2 The President is allowed to veto any particular item or


items (partial veto) in appropriation, revenue, or tariff bill
(keyword: ART) but the veto shall not affect the item or
items to which he does not veto (Section 27 (2) , Art. VI).

C.15.1.3 As a general rule, when the President disapproves of a


provision in a bill approved by Congress, he should veto
the entire bill. There is proscription to veto separate parts
of a bill while retaining others. Exception: It is only in the
case of appropriation, revenue, and tariff bills that he is
authorized to exercise item veto. Exception to exception:
“Doctrine of inappropriate provisions” which says that 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” (Gonzales v. Macaraig, Jr. 191 SCRA 452 (1990).
“The proper remedy in a case of a provision that has no
relation to any other in the appropriation bill is to
consider it an unconstitutional “RIDER” under Section 25
(2).

40
Explaining the doctrine of “inappropriate provision” the
Court said:

“As the Constitution is explicit that the provision


which Congress can include in an appropriation bill must
“relate specifically to some particular appropriation
therein” and be “limited in its operation to the
appropriation to which it relates,” it follows that any
provision which does not relate to any particular item, or
which extends in its operation beyond an item of
appropriation, is considered “an inappropriate provision”
which can be vetoed separately from an item. Also to be
included in the category of “inappropriate provisions are
unconstitutional provisions and provisions which are
intended to amend other laws, because clearly these kind
of laws have no place in an appropriation bill. These are
matters of general legislation most appropriately dealt
with in separate enactments… (Philippine Constitution
Association v. Enriquez, 235 SCRA 506 (1994).

The reason behind the doctrine of


“inappropriate provisions” is to prevent the legislature
from forcing the President to veto an entire appropriation
law thereby paralyzing government (Henry v. Edwards,
La., 346 So., 2d, 153 (1977). In the Philippines this
situation hardly arise because of Section 25 (7) which
provides for the automatic re-appropriation/re-enactment
of the General Appropriation Act of the previous year
until a new GAA is approved.

C.16. Automatic reappropriation/re-enactment. Section 25 (7) “If, by the


end of the fiscal-year, the Congress shall have failed to pass the
General Appropriations Bill for the ensuing fiscal year, the General
Appropriations law for the preceding fiscal year shall be deemed re-
enacted and shall remain in force and effect until the General
Appropriations Bill is passed by the Congress.”

C.17. Non-Legislative

C.17.1 Informing Function. “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 of Representatives at least three
days before their scheduled appearance. Interpellations

41
shall not be limited to written questions, but may cover
matters related thereto. When the security of the State or
the public interest so requires and the President so states in
writing, the appearance shall be conducted in executive
session” (Section 22 Art. VI)

D. EXECUTIVE DEPARTMENT

D.1 Privileges, Inhibitions and Disqualifications

D.1.1 Privileges

D.1.1.1 “Section 6. The President shall have an official residence.


The salaries of the President and Vice-President shall be
determined by law and shall not be decreased during their
tenure. [ No increase in said compensation shall take effect
until after the expiration of the term of the incumbent
during which such increase was approved. They shall not
receive during their tenure any other emolument from the
government or any other source.] [Prohibitions/inhibitions]

D.1.1.2 During his tenure the President is immune from suit,


however, he is not prevented from filing a suit (Soliven v.
Makasiar 167 SCRA 393). The President is also immune
from civil liability (Forbes v. Chuoco Tiaco 16 Phil. 534).

D.1.1.3 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 official functions (Estrada v. Desierto G.R. No.
146710-15, March 2, 2001).

D.1.2 Prohibitions/ Inhibitions

D.1.2.1 “No increase in said compensation shall take effect until


after the expiration of the term of the incumbent during
which such increase was approved. They shall not receive
during their tenure any other emolument from the
government or any other source.”

42
D.1.2.2 Section 13. Art. VII. “The President, Vice-President, the
members of the cabinet, and their deputies or assistants
shall not, unless otherwise provided in this Constitution,
hold any other office or employment during their tenure.
They shall not, during said tenure, directly or indirectly
practice any other profession, participate in any business,
or be financially interested in any contract with, or in any
franchise, or special privilege granted by the Government
or any subdivision, agency or instrumentality thereof,
including Government owned and controlled corporations
or their subsidiaries. They shall strictly avoid conflict of
interest in the conduct of their office.

“The spouse and relatives by consanguinity or


affinity within the fourth civil degree of the President shall
not during his tenure 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”

D.1.3 The Vice-President may be appointed to the Cabinet, without need


of confirmation by the Commission on Appointments.

D.1.4 The Secretary of Justice is an ex-oficio (by reason of the office)


member of the Judicial and Bar Council (Section 8 Art. VIII).

D.1.5 Executive Order No. 284 allowing Cabinet members to hold two (2)
other offices in government was declared by the Supreme Court
unconstitutional being a direct violation of Section 13, Art. VII:
“The President, Vice-President, the members of the cabinet, and
their deputies or assistants shall not, unless otherwise provided in
this Constitution, hold any other office or employment during their
tenure.”

D.1.6 The reasons for the above cited prohibitions are 1) to avoid conflict
of interest and 2) to force the officials to devote full time to their
official duties.

D.2. Powers

D.2.1 Executive and administrative powers in general

D.2.1.1 Art. VII Section 1 “The Executive power shall be vested in


the President of the Philippines.”

43
D.2.1.2 The Constitution did not define what is meant by ‘executive
power’ although Article VII touches on the exercise of
certain powers of the President, i.e., the power of control
over all executive departments, bureaus and offices, the
power to execute the laws, the appointing power, the
powers under the commander-in-chief clause, the power
to grant reprieves, commutations and pardons, the power
to grant amnesty with the concurrence of Congress, the
power to contract or guarantee foreign loans, the power to
enter into treaties or international agreements, the power
to submit the budget to Congress, and the power to
address Congress (Art. VII Secs. 14-23) precisely, in
Marcos v. Manglapus 177 SCRA 668 (1989, the Supreme
Court summed up the executive power of the President:

“To the President, the problem is one of


balancing the general welfare and the common good
against the exercise of rights of certain individuals. The
power involved is the President’ residual power to protect
the general welfare of the people. It is founded on the duty
of the President as steward of the people. To paraphrase
Theodore Roosevelt, it is only the power of the President
but also his duty to do anything not forbidden by the
Constitution or the laws that the needs of the nation
demand (Corwin at 153). It is a power borne by the
President’s duty to preserve and defend the Constitution.
It also may be viewed as a power implicit in the
President’s duty to take care that the laws are faithfully
executed.”

D.2.1.3 Administrative powers of the President can be implied from


his executive power as above cited in the case of Marcos v.
Manglapus, 177 SCRA 668)

D.2.2 Power of Appointment

Section 16, Article VII. “The President shall nominate and with the
consent of the Commission on
Appointments, appoint the

1) heads of the Executive Departments,

2) other public ministers and consuls, or

3) officers of the armed forces from the rank of colonel


or naval captain,

44
4) and other officers whose appointments are vested in
him in this Constitution ( sectoral representatives
under Section 7 Art. XVIII; and members of the
Judicial and Bar Council under Section 8 (2) Art.
VIII).

He shall appoint all other officers of the


government whose appointments are not otherwise
provided by law, and those whom he may be authorized
by law to appoint. The Congress may, by law, vest the
appointment of other officers lower in rank in the
President alone, in the courts, or in the heads of
departments, agencies, commissions, or boards.

“The President shall have the power to make


appointments during the recess of the Congress (ad-
interim appointments), whether voluntary or
compulsory, but such appointments shall be effective
only

1) until the disapproval by the Commission on


Appointments or

2) until the next adjournment of the Congress.”

D.2.3 A regular appointment is one made by the President while


Congress is in session and will take effect after confirmation by
the Commission on Appointments. When approved, the
appointment shall continue until the end of the term of the
appointee or at the pleasure of the President.

D.2.3.1 An ad-interim appointment is one made by the President


while Congress is in recess or not in session to meet the
exigencies of the service. It takes effect upon
acceptance by the appointee but ceases to be valid when
disapproved by the Commission on appointments or
upon the next adjournment of Congress. Disapproval
by adjournment of Congress is “by-passed” through
inaction by the Commission on Appointments.

D.2.3.2 When an ad-interim appointment is by-passed for lack


of time or failure of the Commission on Appointment to
act on it, no CA’s decision yet and the President has
free hands to renew such ad-interim appointment
(Matibag v. Benipayo, G.R. No. 149036, April 2, 2002).

45
D.2.3.3 The clause “officers of the armed forces from the rank of
colonel or naval captain” pertains to the military
officers. It does not include the Philippine National
Police and the Philippine Coast Guard which is now
under the Department of Transportation and
Communications (DOTC) (Soriano v. Lista, G.R. No.
153881, March 24, 2003).

D.2.4 Midnight appointments

D.2.4.1 “Section 15 Art. VII. Two months 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.”

D.2.4.1.1 The provision applies only to presidential


appointments as there is no law that prohibits
local executive officials from making
appointments during the last days of their
tenure (De Rama v. Court of Appeals G.R.
No. 131136 February 28, 2001).

D.2.4.2 The President cannot appoint any person who lost in any
election within one year after such election to any office
in the Government or any government-owned or
controlled corporations or in any of their subsidiaries
(Sec. 6 , Art. IX-B). Those appointees are called
“political lameduck”.

D.2.5 Power of removal

D.2.5.1 The power to hire carries with it the power to fire.


Precisely, the power to appoint carries with it the
implied power to remove. But there is proscription on
the President to remove officials where the Constitution
prescribes certain methods for separation from public
service e.g. Chairmen and Commissioners of the
Constitutional Commissions who can be removed via
impeachment or judges subject to the disciplinary
power of the Supreme Court. Removal implies for
cause as may be provided by law, and in accordance
with the prescribed administrative procedure.

46
D.2.6 Power of control and supervision

D.2.6.1 Section 17, Art. VII. “The President shall have control
of all the executive departments, bureaus, and
offices. He shall ensure that the laws be faithfully
executed.”

D.2.6.2 Power of control. “The President’s power of control


means his power to alter or modify or nullify or set
aside what a subordinate officer had done in the
performance of his duties and substitute his
judgment with that of the latter. It is said to be the
very heart of the meaning of Chief Executive”
(Carpio v. Executive Secretary, 206 SCRA 290
(1992).

In an earlier case, the President’s


issuance of an executive order banning fishing by
trawl was questioned because the Secretary of
Agriculture, and not the President, was the official
authorized by Congress to issue rules and
regulations to implement the ban on trawl fishing.
The Supreme Court ruled that since the Secretary of
Agriculture was empowered to regulate or ban
fishing by trawl, the President in the exercise of his
power of control, can take over from him such
authority and issue the executive order to exercise it
(Araneta v. Gatmaitan 101 Phil. 238 (1957).

D.2.6.3 Doctrine of Qualified Political Agency – This doctrine


recognizes the establishment of a single executive, all
executives and administrative organizations are
adjuncts of the Executive Department, the heads of
the various executive departments and assistants and
agents of the Chief Executive, and except in cases
where the Chief Executive is required by the
Constitution or law to act in person or the exigencies
of the situation demand that he act personally, the
multifarious executive and administrative functions
of the Chief Executive are performed by and through
the executive departments performed and
promulgated in the regular course of business are,
unless disapproved or reprobated by the Chief
Executive presumptively the acts of the Chief
Executive (DENR vs. DENR Region XII Employees,
G.R. No. 149724, August 19, 2003)

47
D.2.6.4 Power of supervision. In the absence of a law granting
the power of control, the President may have only
the power of supervision, which is only overseeing or
the power to see that the officials concerned perform
their duties, and if they later fail or neglect to fulfil
them, to take such action or steps as prescribed by
law to make them perform their duties (Mondano v.
Silvosa 97 Phil. 143 (1955).

D.2.6.5 General Supervision over local governments. “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” Section 4, Art. X).

D. 3. Military powers

D.3.1 Section 18 Art. VII. “The President shall be the Commander-in-


Chief of all the armed forces of the Philippines and whenever it
becomes necessary, he may call out such armed forces to prevent
or suppress lawless violence, invasion, or rebellion. In case of
invasion or rebellion, when the public safety requires it, he may,
for a period not exceeding sixty days, suspend the privilege of the
writ of habeas corpus or place the Philippines or any part thereof
under martial law. Within forty-eight hours from the
proclamation of martial law or the suspension of the privilege of
the writ of habeas corpus, the President shall submit a report in
person or in writing to the Congress. The Congress, voting
JOINTLY, by a vote of at least a majority of all its members in
regular or special session, may revoke such proclamation or
suspension, which revocation shall not be set aside by the
President. Upon the initiative of the President, the Congress
may, in the same manner, extend such proclamation or
suspension for a period to be determined by the Congress, if the
invasion or rebellion shall persist and public safety requires it.

“The Congress, if not in session, shall, within twenty-four


hours following such proclamation or suspension, convene in
accordance with its rules without a need of a call.

“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

48
privilege of the writ or the extension thereof, and must
promulgate its decision therein within thirty days from its filing.

“A state of martial law does not suspend the operation of


the Constitution, nor supplant the functioning of the civil courts
or legislative assemblies, nor authorize the conferment of
jurisdiction on military courts and agencies over civilians where
civil courts are able to function, nor automatically suspend the
privilege of the writ.

“The suspension of the privilege of the writ shall apply


only to persons judicially charged for rebellion or offenses
inherent or directly connected with invasion.

“During the suspension of the privilege of the writ, any


person thus arrested or detained shall be judicially charged
within three days, otherwise he shall be released.”

D.3.1.1 “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”
(Integrated Bar of the Philippines v. Zamora, G.R. No.
141284, August 15, 2000).

D.4. Pardoning power (Executive clemency)

D.4.1. Section 19, Art. VII. “Except in cases of impeachment, or as


otherwise provided in this Constitution, the President may grant
reprieves, commutations, and pardons and remit fines and
forfeitures, after conviction by final judgment.

“He shall also have the power to grant amnesty with the
concurrence of a majority of all the members of the Congress”

D.4.1.1 A “reprieve” postpones the execution of an offense to a


day certain” (People v. Vera 65 Phil. 56, 110 (1937). Stay
of execution

D.4.1.2 Commutation is a remission of a part of the punishment;


a substitution of a less penalty for the one originally
imposed (People v. Vera). “The fact that a convict was
released after six years and placed under house arrest,
which is not a penalty, already leads to the conclusion
that the penalty had been shortened” (Drilon v. Court of

49
Appeals, 202 SCRA 378 (1991). A reduction or mitigation
of the penalty.

D.4.1.3 Parole – release from imprisonment but without


restoration of full liberty, as parolee is still in custody of
the law although not in confinement.

D.4.1.4 Amnesty – act of grace, concurred by Congress usually


extended to groups of persons who committed political
offenses, which puts into oblivion the offense itself.

D.4.1.5 Pardon – an act of grace which exempts the individual on


whom it is bestowed from the punishment that the law
inflicts for the crime committed.

D.4.1.6 Executive clemency /pardon is not a function of the


judiciary; it is an executive function and a manifestation
that human institutions are imperfect and that there are
infirmities in the administration of justice. Precisely,
Article 5 of the Revised Penal Code provides whenever a
strict application of the provisions of the law will result in
undue harshness to the offender, the duty of the judge is
to impose the proper penalty, however harsh it may be,
but he is enjoined to recommend to the President the
exercise of executive clemency.

D.4.1.7 Constitutional limits on executive clemency

1) It cannot be exercised over cases of impeachment;

2) Reprieves, commutations, pardon and remission of


fines and forfeitures can be given only AFTER
CONVICTION BY FINAL JUDGMENT;

3) The grant of amnesty must be with the concurrence of


the MAJORITY OF ALL THE MEMBERS OF
CONGRESS;

4) No pardon, amnesty parole, or suspension of sentence


for violation of election laws, rules and regulations
shall be granted by the President without the
favourable recommendation of the Commission on
Elections (Art. IX, C. Section 5).

D.4.1.8 “A pardon is an act of grace, proceeding from the power


entrusted with the execution of the laws, which exempts
the individual on whom it is bestowed, from the

50
punishment the law inflicts for a crime he has committed.
It is the private, though official act of the executive
magistrate, delivered to the individual for whose benefit
it is intended, and not communicated officially to the
Court... A pardon is a deed, to the validity of which
delivery is essential, and delivery is not complete without
acceptance. It may then be rejected by the person to
whom it is tendered; and if it be rejected, we have
discovered that no power in a court to force it on him”
(United States v. Wilson 7 Pet. At 160-1).

D.4.1.9 Distinctions between pardon and amnesty

1) Pardon is granted by the Chief Executive and as such it


is a private act which must be pleaded and proved by
the person pardoned because the courts TAKE NO
NOTICE (judicial) thereof; while amnesty by
proclamation of the Chief Executive with the
concurrence of Congress , is a public act of which the
courts should take JUDICIAL NOTICE;

2) Pardon is granted to one AFTER CONVICTION; while


amnesty is granted to classes of persons or
communities who may be guilty of political offenses,
generally before or after the institution of the criminal
prosecution and sometimes after conviction;

3 “Pardon looks FORWARD and relieves the offender


from the consequences of an offense of which he has
been convicted, that is, it abolishes or forgives the
punishment and for that reason it does “NOT WORK
the restoration of the rights to hold public office, or the
right of suffrage, unless such rights be expressly
restored by the terms of the pardon and it “in NO
CASE EXEMPTS the culprit from payment of the
civil indemnity imposed upon him by the sentence”
(Art. 36 RPC). While amnesty LOOKS BACKWARD
AND ABOLISHES and puts into oblivion the offense
itself, it so overlooks and obliterates the offense with
which he is charged that the person released by
amnesty STANDS BEFORE THE LAW precisely as
though he had committed no offense” (Barrioquinto v.
Fernandez 82 Phil.642 (1949).

D.4.1.10 “A petition for amnesty is in the nature of a plea of


confession and avoidance, under which principle the
pleader has to confess the allegations against him

51
before he can be allowed to set out matters which, if
true, would defeat the action” (People v. Llaneta, 86
Phil. 219, 243-244 (1950).

D.4.1.11 “A tax amnesty is a general pardon or intentional


overlooking of its authority to impose penalties on
persons otherwise guilty of evasion or violation of
revenue or tax law, and as such partakes of an absolute
forgiveness or waiver by the Government of its right to
collect what otherwise would be due it (Republic v.
IAC, G.r. 69344 April 26, 1991 quoting CIR v. Botelho
Corp. 20 SCRA 487). It is granted before conviction
and may be a delegated administrative act.

D.4.1.12 Though pardon erases the penalty and the legal


disabilities consequent on the penalty, where, upon a
valid conviction, a person was dismissed from office,
pardon does not entitle the person reinstatement by
right. He may, however, be reappointed (Monsanto v.
Factoran, Jr., 170 SCRA 190 (1989).

D.5 Diplomatic power

D.5.1 Section 21 Art. VII. “No treaty or international agreement shall be


valid and effective unless concurred in by at least two-thirds of all the
members of the Senate.”

D.5.2 Treaty – “International agreements involving political issues or


changes of national policy and those involving international
arrangements of a permanent character take the form of a treaty”
(Commissioner of Customs v. Eastern Sea Trading, 3 SCRA 351).

Note: Treaty making involves four phases: 1) Negotiation 2) Signature 3)


Ratification 4) Exchange. The negotiation is an exclusive affair of the
Executive but the fruits of negotiation will not have legal efficacy
without the concurrence of the Senate.

D.5.3 Executive agreements – “International agreements embodying


adjustments of details carrying out well established national policies
and traditions and those involving arrangements of a more or less
temporary nature usually take the form of executive agreements .

D.5.3.1 “The right of the Executive to enter into binding agreements


without the necessity of subsequent Congressional approval
has long been CONFIRMED BY LONG USAGE. From the
earliest days of our history we have entered into executive
agreements covering such subjects as commercial and

52
consular relations, most-favoured-nation rights, patent rights,
trademark and copyright protection, postal and navigation
arrangements and the settlement of claims. The validity of
these has never been seriously questioned by our courts.”
(Gonzales v. Hechanova, 9 SCRA 230, 243 (1963). These
agreements were made pursuant to act of Congress.

D.5.3.2. How is a treaty terminated?

1) By formal agreement of the parties;

2) By the treaty itself;

3) Termination due to a breach by the other due to “rebus sic


stantibus.”

D.5.3.3 The other foreign affairs power of the President are:

1) The power to make treaties;

2) The power to appoint ambassadors;

3) The power to receive ambassadors and other public


ministers duly accredited by the Philippines as well as the
recall of diplomatic officer as persona non grata.

4) The power to deport undesirable alien;

5) The power to recognize governments and withdraw


recognition.

D.5.3.4 Under international law, an executive agreement is binding as


a treaty.

D.6 Art. VII. “The President shall submit to the Congress within thirty days
from the opening of every regular session, as the basis of the General
Appropriation Bill, a budget of receipts and expenditures and sources
of financing, including receipts from existing and proposed revenue
measures. “Congress may not increase the appropriation
recommended by the President for the operation of the Government as
specified in the budget” (Section 25 (1) Art. VI).

D.7 Delegated powers

D.7.1 Section 23 (2) Art VI. “In times of war or other national
emergency, the Congress may, by law, authorize the President, for
a limited period and subject to such restrictions as it may
prescribe, to exercise powers necessary and proper to carry out a

53
declared national policy. Unless sooner withdrawn by resolution
of the Congress, such powers shall cease upon the next
adjournment thereof.”

D.7.2 Section 28 (2) Art. VI. “The Congress may, by law, authorize the
President to fix within specified limits, and subject to such
limitations and restrictions as it may impose, tariff rates, import
and export quotas, tonnage and wharfage dues, and other duties
or imposts within the framework of the national development
program of the Government.”

D.7.3 Presidential Veto and Congressional Override

D.7.3.1 Section 27, Art. VI.

(1) “Every bill passed by the Congress shall, before it


becomes a law, be presented to the President. If he
approves the same, he shall sign it; otherwise, he shall
veto it and return the same with his objections to the
House where it originated, which shall enter the
objections at large in its journal and proceed to
reconsider it. If, after such reconsideration, two thirds
(2/3) of all the members of such House shall agree to
pass the bill, it shall be sent, together with the
objections, to the other House by which it shall
likewise be reconsidered, and if approved by two-
thirds (2/3) of all the members of that House, it shall
become a law. In all such cases, the votes of each
House shall be determined by yeas and nays, and the
names of the members voting for or against shall be
entered in its journal. The President shall
communicate his veto of any bill to the House where it
originated within thirty (30) days after the date of
receipt thereof; otherwise, it shall become a law as if
he had signed it.

(2) The President shall have the power to veto any


particular item or items in an appropriation, revenue,
or tariff bill, but the veto shall not affect the item or
items which he does not object.

D.7.4. Residual powers. In Marcos v. Manglapus, 177 SCRA 668


(1989), the Supreme Court said: “we hold the view that

54
although the 1987 Constitution imposes limitations on the
exercise of specific power of the President, it maintains intact
what is traditionally considered as within the scope of
“executive power.” Corollarily, the powers of the President
cannot be said to be limited only to the specific powers
enumerated in the Constitution. In other words, executive
power is more than the sum of specific powers so enumerated.

D.8 Rules on Succession

D.8.1 Section 7 Art. VII. “The President-elect and the Vice-President


elect shall assume office at the beginning of their terms.
“If the President-elect fails to qualify, the Vice-President-elect
shall act as President until the President-elect shall have qualified.
“If a President shall not have been chosen, the Vice-President
elect shall act as President until a President shall have been chosen
and qualified.
“If at the beginning of the term of the President, the President-
elect shall have died or shall have become permanently disabled,
the Vice-President –elect shall become President.
“Where no President and Vice-President shall have been
chosen or shall have qualified, or where both shall have died or
become permanently disabled, the President of the Senate or, in
case of his inability, the Speaker of the House of Representatives
shall act as President until a President or a Vice-President shall
have been chosen and qualified.
“The Congress shall, by law, provide for the manner in which
one who is to act as President shall be selected until a President or
a Vice-President shall have qualified, in case of death, permanent
disability, or inability of the officials mentioned in the next
preceding paragraph.”

Section 8, Art. VII. “In case of death, permanent disability,


removal from office, or resignation of the President, the
Vice-President shall become President to serve the
unexpired term. In case of death, permanent disability,
removal from office, or resignation of both the President
and Vice-President, the President of the Senate or, in case
of his inability, the Speaker of the House of
Representatives, shall then act as President until the
President or Vice-President shall have been elected and
qualified.
“The Congress shall, by law, provide who shall
serve as President in case of death, permanent disability,
or resignation of the Acting President. He shall serve until
the President or the Vice-President shall have been elected

55
and qualified, and be subject to the same restrictions of
powers and disqualifications as the Acting President.”

D.8.2 Section 4 last sentence Art. VII. “No person who has succeeded
as President and has served as such for more than FOUR
YEARS shall be qualified for election to the same office at any
time.” In the case of President Gloria M. Arroyo, she succeeded
President Estrada who served for that four years in office.
Precisely, she was able to run as President and ruled the
Philippines for more or less nine (9) years.

E. Judicial Department

E.1. Concepts

E.1.1 Judicial power “is the right to determine actual controversies arising
between adverse litigants, duly instituted in courts of proper
jurisdiction” (Muskrat v. United States, 219 U.S. 346 (1911).

E.1.2 Judicial review is the Supreme Court’s power to declare a treaty,


international or executive agreement, law, presidential decree,
proclamation, order instruction, ordinance, or regulation,
unconstitutional (Section 4 (2), Art. VIII)
E.1.3 Section 1, Art. VIII. “The judicial power shall be vested in one
Supreme Court and in such lower courts as may be established by
law.

“Judicial power includes the duty of the courts of justice to


settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there
has been grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the
Government.”

E.1.3.1 Grave abuse of discretion. “By grave abuse of discretion is


meant such capricious and whimsical exercise of judgment
as is equivalent or lack of jurisdiction. The abuse of
discretion must be patent and gross as to amount to an
evasion of 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” (Sinon
v. Civil Service Commission, 215 SCRA 410, 416-417
(1992).

56
E.1.3.2 Requisites for the exercise of the power of judicial review:

1) There must be before the court an actual


controversy/case calling for the exercise of judicial
power;

Note: This requisite is not at all absolute. Exceptions to


procedural rules may be dictated in cases of a) lack of
clarity creating a confusion detrimental to the public
order i.e. confiscation of license plates, and drivers
licenses for traffic violations (Solicitor General v.
Metropolitan Authority, G.R. 102782, December 11,
1991); b) when although the dispute is gone but it cries
to be resolved not only for the vindication of the
outraged right but for the guidance and restraint upon
the future (Javier v. COMELEC and Pacificador, G.R.
68379-81, September 22, 1986).

Another exception is on “facial challenge” allowing


third party standing and on over breadth doctrine with
respect to statutes involving free speech.

2) The question before it must be ripe for adjudication or


that the Governmental act being challenged must have
had an adverse effect on the person challenging it (Tan
v. Macapagal, 43 SCRA 678 (1972);

3) The person challenging the act must have “standing” to


challenge because he has a personal and substantial
interest in the case such that he has sustained, or will
sustain direct injury as a result of its enforcement”
(People v. Vera, 65 Phil 58, 89 (1937); Macasiano v.
National Housing Authority, 224 SCRA 236 (1993);

4) “The question of constitutionality must be raised at the


earliest opportunity, so that if not raised by the
pleadings, ordinarily it may not be raised at the trial,
and if not raised in the trial court, it will not be
considered on appeal; and

5) “Courts will not touch the issue of constitutionality


unless it really is unavoidable or is the very lis mota
(Sotto v.
COMELEC, 76, Phil. 516, 522 (1946).

57
Note: Liberalization on ‘standing’ was made on the basis of
“intergenerational responsibility” and “transcendental
importance.”

“Finally, the Court summed up what it saw as


the doctrine on the “standing” of taxpayers, voters,
concerned citizens and legislators. Taxpayers are
allowed to sue when there is illegal disbursement of
public funds or when tax measure is assailed. Voters are
allowed to question the validity of election laws because
of their evident interest in the matter. “Concerned
citizens” can be allowed to sue if the questions they raise
as of transcendental importance which must be settled
such as in the Emergency Powers Cases. And legislators
are allowed to sue to question the validity of any official
act which they claim may infringe their prerogatives qua
legislators” (Bernas, The 1987 Constitution: A
Commentary p. 858)

E.2. Operative Fact Doctrine

E.2.1 “Where the assailed legislative or executive act is found by the


judiciary to be contrary to the Constitution, it is null and void. As
the new Civil Code puts it: “When the courts declare a law to be
inconsistent with the Constitution, the former shall be void and the
latter shall govern”. Administrative or executive acts, orders and
regulations shall be valid only when they are not contrary to the law
or the Constitution” The above provision of the Civil code reflects
the orthodox view that an unconstitutional act, whether legislative
or executive, is not a law, confers no rights, imposes no duties, and
affords no protection. This DOCTRINE ADMITS OF
QUALIFICATIONS, HOWEVER. As the American Supreme
Court stated: “The actual existence of a statute PRIOR to such a
determination of constitutionality, is AN OPERATIVE FACT and
may have consequences which cannot always be erased by a new
judicial declaration x x x.
“The growing awareness of the role of the judiciary as the
governmental organ which has the final say on whether or not a
legislative or executive measure is valid leads to a more appreciative
attitude of the EMERGING CONCEPT that a declaration of nullity
may have legal consequences which the more orthodox view would
deny. That for a period of time such a statute, treaty, executive order,
or ordinance was in “ACTUAL EXISTENCE” appears to be
indisputable. What is more appropriate and logical then than to
consider it as “AN OPERATIVE FACT?” (Fernandez v. Cuerva, 21

58
SCRA 1095 (1967) de Agbayani v. Philippine National Bank 38
SCRA 429 (1971).

E.3. Moot Questions. “The Court is not empowered to decide moot questions or
abstract propositions, or to declare principles or rules of law which
cannot affect the result as to the thing in issue in case before it. In
other words, when a case is moot, it becomes non-justiceable. An
action is considered “moot” when it no longer presents a justiceable
controversy because the issues involved have become academic or
dead or when the matter in dispute has already been resolved and
hence, one is not entitled to judicial intervention unless the issue is
likely to be raised again between the parties. There is nothing for
the court to resolve as the determination thereof has been overtaken
by subsequent events” (Atty. Evillo C. Pormento vs. Joseph “Erap”
Ejercito Estrada and COMELEC, G.R. No. 191988, August 31,
2010).

E.4. Political Question Doctrine. In Tanada v. Cuenco, L-10520, February 28,


1965, the Supreme Court said that political questions “are 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 branch of the
government.”

E.5. Judicial Independence Safeguards

E.5.1 Section 2, Art. 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.”

E.5.2 Section 3, Art. VIII. “The judiciary shall enjoy fiscal autonomy.
Appropriations for the judiciary may not be reduced by the
legislature below the amount appropriated for the previous year
and, after approval, shall be automatically and regularly released.

E.5.3 Section 11, Art. VIII. “The members of the Supreme Court and
Judges of lower courts shall hold office during good behaviour until
they reach the age of seventy or become incapacitated to discharge

59
the duties of their office. The Supreme Court en banc shall have the
power to discipline judges of lower courts, or order their dismissal
by a vote of a majority of the members who actually took part in the
deliberations on the issues in the case and voted thereon.”

Note: “Q. Must disciplinary cases are heard by the Supreme Court en
banc?

A. The text of Section 11 yields the reading that decisions on


disciplinary cases must all be arrived at Court en banc.
However, People v. Gacott, Jr., G.R. No. 116049, July 13, 1995,
ruled, contrary to the inclusive language of the text, that a
decision en banc is NEEDED ONLY when the penalty to be
imposed is dismissal of a judge, disbarment of a lawyer,
suspension either for more than one year, or a fine exceeding
10,000 pesos” (Bernas, The 1987 Constitution: A
Comprehensive Reviewer, 2006 Edition)

E.5.4 Section 2, Art. XI “The President, the Vice-President, the members


of the Supreme Court, the members of the Constitutional
Commissions, and the Ombudsman may be removed from office,
on impeachment for, and conviction of, culpable violation of the
Constitution, treason, bribery, graft and corruption, other high
crimes, or betrayal of public trust. All other public officers and
employees may be removed from office as provided by law, but not
by impeachment.”

Note: French people call impeachment an act of “political justice”


(Bernas, The 1987 Constitution: A Commentary 1996 Ed. P.989)

E.6 May the lower courts exercise the power of judicial review?

The power of judicial review is not an exclusive power of the


Supreme Court because Section 5 (2) conferred on the Supreme Court
APPELLATE jurisdiction over judgments and decrees of lower courts in
all cases in which the constitutionality or validity of any treaty,
international or executive agreement, law, presidential decree,
proclamation, order, instruction, ordinance or regulation is in question.
“Plainly the Constitution contemplates that the inferior courts should
have jurisdiction in cases involving constitutionality of any treaty or law,
for it speaks of appellate review of final judgments of inferior courts in
cases where such constitutionality happens to be in issue” (J.M. Tuason
and Co. v. Court of Appeals 3 SCRA 696; Ynot v. IAC, 148 SCRA 659,
1987).

“Considering, however, that a majority vote of the members of the

60
Supreme Court sitting en banc is required to declare a law
unconstitutional, lower courts must keep in mind “that a becoming
modesty of inferior courts demands conscious realization of the position
they occupy in the interrelation and operation of the integrated judicial
system of the nation” (People v. Vera, 65 Phil. 56 (1937, cited in Vera v.
Arca, 351-361-2 1969).

E.7 Appointments to the Judiciary

E.7.1 Qualifications of Members of the Judiciary

Section 7, Art. VIII.


(1) “No person shall be appointed member of the Supreme Court or
any lower collegiate court unless he is a natural-born citizen of the
Philippines. A member of the Supreme Court must be at least forty
(40) years of age, and must have been for fifteen (15) years or more a
judge of a lower court or engaged in the practice of law in the
Philippines.

“(2) 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 Philippines Bar.

“3” A member of the judiciary must be a person of proven competence,


integrity, probity, and independence.”

Note: Judges of lower courts need not be natural born. He needs to be a


citizen of the Philippines which means that a naturalized Filipino
may be appointed to the lower courts; that Congress cannot
require that judges of the lower courts be natural-born citizen.

E. 8 Supreme Court

E.8.1 The following cases have to be heard and decided en banc:

1) all cases involving the constitutionality of a treaty, international


or executive agreement, or law;

2) cases involving the constitutionality, application, or operation of


presidential decrees, proclamations, orders, instructions,
ordinances, and other regulations;

3) cases heard by a division when the required majority in the


division is not obtained;

61
4) cases where the Supreme Court modifies or reverses a doctrine
or principle of law previously laid down either en banc or in
division;

5) administrative cases where the vote is for the dismissal of a


judge of a lower court or otherwise to discipline such a one;
and,

6) election contests for President and Vice-President” (Section 4,


Art. VIII).

All other cases may be decided either en banc or in division


as the Rules of Court may provide.

E. 9 Procedural Rule-Making

E.9.1 Section 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, the 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.”

E.9.2. Periods for decision

Section 15, Art. 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 Supreme Court,
and, unless reduced by the Supreme Court twelve (12)
months for all lower collegiate courts, and three (3) for all
other 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.

(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

62
attached to the record of the case or matter, and served upon
the parties. The certification shall state why a decision or
resolution has not bee 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.”

E.10 Administrative supervision over lower courts

E.10.1 Section 5 (3), “Assign temporarily judges of lower courts to


other stations as public interest may require. Such temporary
assignment shall not exceed six (6) months without the
consent of the judge concerned. (4) Order a change of venue
or place of trial to avoid a miscarriage of justice.”

F. INDEPENDENT CONSTITUTIONAL COMMISSIONS

Section 1. Art. IX. “The constitutional commissions which shall be independent


are:

1) Civil Service Commission


2) Commission on Elections
3) Commission on Audit

F.1 Institutional Independence and Safeguards

1) Section 2. Art. IX. “No members of a Constitutional Commission shall,


during his tenure, hold any other office or employment. Neither shall
he engage in the practice of any profession or in the active
management or control of any business which in any way may be
affected by the functions of his office, nor shall he be financially
interested, directly or indirectly, in any contract with, or in any
franchise or privilege granted by the government, any of its
subdivisions, agencies, or instrumentalities, including government-
owned or controlled corporations or their subsidiaries.”

Note: Practice of profession does not include teaching.

The enumerated prohibitions in section 2 are intended to keep


them away from pressures and graft and corruptions.

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2) Section 3. “The salary of the Chairman and the Commissioners shall
be fixed by law and shall not be decreased during their tenure.”

(3) Section 4. “The Constitutional Commissions shall appoint their


officials and employees in accordance with law.”

(5) Section 5 “The Commission shall enjoy fiscal autonomy. Their


approved annual appropriations shall be automatically and
regularly released.”

(6) Section 6. “Each Commission en banc may promulgate its own rules
concerning pleadings and practice before it or before any of its
offices. Such rules however shall not diminish, increase, or modify
substantive rights.”

F.1.1 Decision of the Constitutional Commissions

F.1.1.1 Section 7, Art. IX-A. “Each Commission shall decide by a


majority vote of all its members any case or matter
brought before it within sixty (60) days from the date of
submission for decision or resolution.”

Notes: Any decision, order or ruling of each Commission may be


brought to the Supreme Court on certiorari by the
aggrieved party within 30 days from receipt of a copy
thereof.

“The Court, when it reviews a decision of the


COMELEC, exercises extraordinary jurisdiction; thus the
proceeding is limited to issues involving grave abuse of
discretion resulting in lack or excess of jurisdiction and
does not empower the Court to review the factual findings
of the Commission (Aratuc vs. Comelec, 88 SCRA 251).
This certiorari is under Rule 65 of the Rules of Court.

With regard to the Civil Service Commission, its


resolutions/decision shall be appealable to the Court of
Appeals by certiorari (Rule 45, Rules of Court on ground
of reversible errors ) within fifteen (15) days from receipt
of the copy thereof ( Supreme Court Revised Circular 1-91
as amended by Circular No. 1-95 dated June 1, 1995.

F.2 Powers and functions of each Commission

F.2.1 The Civil Service Commission

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F.2.1.1. Section 1.
(1) The civil service shall be administered by the Civil
Service Commission composed of a Chairman and
two (2) Commissioners who shall be natural-born
citizens of the Philippines and, at the time of their
appointment, at least thirty-five (35) years of age,
with proven capacity for public administration, and
must not have been candidates for any elective
position in the elections immediately preceding their
appointment.”

F.2.1.2 Section 2
(1) “The civil service embraces all branches, subdivisions,
instrumentalities, and agencies of the government
including government-owned or controlled
corporations with original charters.”

Note: Corporations with original charters are those


corporations created by special law and not through
the general corporation law.

(2) “Appointments in the civil service shall be made only


according to merit and fitness to be determined, as far
as practicable, and, except to positions which are policy
determining, primarily confidential, or highly technical,
by competitive examination.”

Notes: Appointments in the civil service shall be made only


according to merit and fitness to be determined as far
as practicable by competitive examination exceptions
are: policy-determining, primarily confidential and
highly technical.

Positions in the civil service are: competitive and non


competitive.

The non-competitive are: policy-determining, primarily


confidential and highly technical.

A policy-determining position is one charged with the


duty to formulate a method of action for the government or any
of its subdivisions.

A primarily confidential position denotes not only


confidence in the aptitude of the appointee for the duties of the

65
office but primarily close intimacy which insures freedom of
intercourse without embarrassment or freedom of misgivings
or betrayals of personal trust on confidential matters of state.

A highly-technical position is one where the occupant


possesses a technical skill or training in the supreme or
superior degree.

Determining whether the position is policy-


determining, primarily confidential or highly technical is a
JUDICIAL QUESTION (Salazar v. Mathay, 73 SCRA 275, 279
(September 30, 1976); that while the classification made by the
executive should be accorded the weight it deserves is NOT
DEFINITELY DETERMINATIVE of the nature of the position
(De los Santos v. Mallari, 87 Phil. 289, 298 (1950).

(3) “No officer or employee of the civil service shall be


removed or suspended except for cause provided by
law.”

Note: There is security of tenure for the civil servants. There could
be no dismissal without except for cause provided by law. This
is a guarantee of both procedural and substantive due process.

(4) “No officer or employee in the civil service shall engage,


directly or indirectly, in any electioneering or partisan
political campaign”

(5) “The right to self-organization shall not be denied to


government employees.”
Note: “The employees of the Social Security System and public
school teachers do not have the a constitutional right to
strike” (Social Security System v. Court of Appeals, G.R.
85279, July 28, 1989) In Republic v. Court of Appeals, G.R.
87676, December 20, 1989, the Court said that “government
employees do not have the right to strike because there is as
yet no law permitting them to strike.

(6) Temporary employees of the government shall be given


such protection as may be provided by law.”

F.2.3 “Section 3, Art. IX. The Civil Service Commission, as the central
personnel agency of the Government, shall establish a career service
and adopt measures to promote morale, efficiency, integrity,
responsiveness, progressiveness, and courtesy in the civil service. It
shall strengthen the merit and rewards system, integrate all human

66
resources development programs for all levels and ranks, and
institutionalize a management climate conducive to public
accountability. It shall submit to the President and the Congress an
annual report on its personnel programs.”

Notes: 1. As central personnel agency of the government, the Civil


Service Commission may revoke a certificate of eligibility
motu proprio. In Lazo v. Civil Service Commission, 236 SCRA
469, 472 (1994), the Supreme Court ruled “where the case
simply involves the re-checking of examination papers and
nothing more than a re-evaluation of documents already in
the records of the CSC according to a standard answer key
previously set by it, notice and hearing is not required.
Instead, what would apply is the rule of res ipsa loquitor.

2. Career service is characterized by:


1) entrance is based on merit and fitness to be determined as
far as practicable by competitive examinations or based on
a highly technical qualifications;
2) opportunity for advancement to higher career positions;
and
3) security of tenure

F.2.4 “No elective or appointive public officer or employee shall receive


additional, double, or indirect compensation, unless specifically
authorized by law, nor accept without the consent of the Congress,
any present, emolument, office, or title of any kind from any
foreign government.

Pensions or gratuities shall not be considered as additional,


double, or indirect compensation.”

Note: Commonwealth Act 153 (1936) “Any person holding an office of


profit or trust in the government of the Philippines who, without
the consent of the Congress accepts any present, emolument, office
or title from a foreign state, except however, honours or titles of a
religious, academic or scientific nature, shall upon conviction be
punished with imprisonment, not to exceed one year, and
disqualification to hold any public office for a period not less than
three years nor more than ten years (Bernas, 1987 Constitution of
the Philippines: A Commentary p. 928).

F.3 The Commission on Elections

F.3.1 Section 1.

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(1) There shall be a Commission on Elections composed of a
Chairman and six Commissioners who shall, be natural-born
citizens of the Philippines and, at the time of their appointment,
at least thirty-five (35) years of age, holders of a college degree,
and must not have been candidates for any elective position in
the immediately preceding elections. However, a majority
thereof, including the Chairman, shall be members of the
Philippine Bar who have been engaged in the practice of law for
at least ten years.

(2) The Chairman and the commissioners shall be appointed by the


President with the consent of the Commission on Appointments
for a term of seven (7) years without reappointment. Of those
first appointed, three (3) members shall hold office for seven (7)
years, two (2) members for five (5) years, and the last members
for three (3) 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 in a temporary of
acting capacity.”

F.3.2 Section 2, Art. IX. “The Commission on Elections shall exercise the
following powers and functions:

(1) Enforce and administer all laws and regulations relative to the
conduct of an election, plebiscite, initiative and referendum, and
recall.

(2) Exercise exclusive original jurisdiction over all contests relating


to the elections, returns, and qualifications of all elective
regional, provincial, and city officials, and appellate jurisdiction
over all contests involving elective municipal officials decided by
trial courts of general jurisdiction (RTC),or involving barangay
officials decided by trial courts of limited jurisdiction (MTC).

Decisions, final orders, or rulings of the Commission on


Election contests involving elective municipal and barangay
offices shall be FINAL and NOT APPEALABLE.

(3) Decide, except those involving the right to vote ( the


determination of the right to vote belongs to the courts), all
questions affecting elections, including determination of the
number and location of polling places, appointment of election
officials and inspectors, and registration of voters.

Notes: 1) Other provisions should be read in the text.

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2) The Commission may punish for contempt but such power
may not be exercised in connection with purely executive or
ministerial functions. Only in the exercise of quasi-judicial
and judicial functions may it punish for contempt.

3) The power to determine whether or not a person can exercise


or is precluded from exercising the right of suffrage is a
judicial question (Pungutan v. Abubakar, 43 SCRA 1, 12
(1972) (Bernas, The 1987 Constitution: A commentary p.
941).

4) Exempted from registration with the COMELEC are:

a) religious denomination and sects;


b) those which seek to achieve their goals through violence
and or unlawful means;
c) those which refuse to uphold and adhere to the
Constitution, and
d) those which are supported by any foreign government

5) Exclusive original jurisdiction over all pre-proclamation


controversies.

F.3.3 Section 5, Art. IX. No pardon, amnesty, parole, or suspension of


sentence for violation of election laws, rules and regulations shall
be granted by the President without favourable recommendation
of the Commission.”

F.3.4. “Section 9. Art. IX. “Unless otherwise fixed by the Commission in


special cases, the election period shall commence ninety (90) days
before the day of election and shall end thirty (30) days
thereafter.”
F.4. Commission on Audit

F.4.1 Section 1, Art. IX.


(1) “There shall be a Commission on Audit composed of a
Chairman and two Commissioners, who shall be natural-born
citizens of the Philippines and, at the time of their appointment,
at least thirty-five (35) years of age, certified public accountants
with not less than ten (10) years of auditing experience, or
members of the Philippine Bar who have been engaged in the
practice of law for at least ten (10) years, and must not have
been candidates for any elective position in the elections
immediately preceding the appointment. At no time shall all
members of the Commission belong to the same profession.

69
(2) The Chairman and the Commissioners shall be appointed by
the President with the consent of the Commission on
Appointments for a term of seven (7) years without
reappointment. Of those first appointed, the Chairman shall
hold office for seven (7) years, one Commissioner for five (5)
years, and the other Commissioner for three (3) years, without
reappointment. Appointment to any vacancy shall be only for
the unexpired portion of the term of the predecessor. In no
case shall any member be appointed or designated in a
temporary or acting capacity.”

F.4.2 (1) “The Commission on Audit shall have the power, authority, and
duty to examine, audit, and settle accounts pertaining to the
revenue and receipts of, and expenditures or uses of funds and
property, owned or held in trust by, or pertaining to, the
government, or an of its subdivisions, agencies, or
instrumentalities, including government-owned and controlled
corporations with original charters, and on a post audit basis:

(A) Constitutional bodies, commissions and offices that have


been granted fiscal autonomy under the Constitution;

(B) Autonomous state colleges and universities;

(C) Other government-owned or controlled corporations


and their subsidiaries; and

(D) Such non-governmental entities receiving subsidy or


equity, directly or indirectly, from or through the
government, which are required by law or the granting
institution to submit to such audit as a condition of
subsidy or equity. However, where the internal control
system of the audited agencies is inadequate, the
Commission may adopt such measures, including
temporary or special pre-audit as are necessary and
appropriate to correct the deficiencies. It shall keep the
general accounts of the government and, for such
period as may be provided by law, preserve the
vouchers and other supporting papers pertaining
thereto.

(2) The Commission shall have exclusive authority, subject to


the limitations in this Article, to define the scope of its audit
and examination, establish techniques and methods required
therefor, and promulgate accounting and auditing rules and
regulations, including those for the prevention and

70
disallowance or irregular, unnecessary, excessive,
extravagant, or unconscionable expenditures, or uses o0f
government funds and properties.”

G. Billl of Rights

G.1. Fundamental powers of the State (police power, eminent domain, taxation)

G.1.1 Police power is the power vested in the legislature by the constitution
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 of the subject of the
same” (Chief Justice Shaw in Commonwealth v. Alger, 7 Cush, 53
(Mass. 1851 quoted in U.S. v. Pompeya, 31 Phil 245).

G.1.2 Power of Eminent Domain is the ultimate right of the sovereign


power to appropriate, not only the public but private property of all
citizens within the territorial sovereignty to public purpose (Charles
River Bridge v. Warren Bridge 11 Pet. 420, (641) (U.S. 1837).

G.1.3 Power of Taxation – is the power to raise revenue for governmental


purposes.
G.2. Concept and application

G.1.2.1 Police power rests upon public necessity and upon the right of the
state and of the public to self-protection (U.S. v. Toribio; Cuunjing
v. Patstone, 42 Phil. 818 (1922);

G.1.2.2 Police power is present and felt in areas of:

1) Public health measures:

a) make house repairs


b) compulsory connection to sewerage system
c) license to practice medicine
d) regulation of cattle imports
e) sale of meat

2) Public safety measures:

a) building regulations
b) regulation of carrying deadly weapons
c) participation in rotational patrol duty
d) regulation of gasoline stations and movie theaters
e) use of city roads

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3) Public morals

a) regulating the operation of public dance halls


b) prohibiting gambling
c) licensing of cock-pits
d) prohibiting the operation of pinball machines
e) regulating the operation of motels and hotels
f) regulating establishment of massage parlors

3.1 Where a municipality refused to give any permit for nigh


clubs and any permit for night clubs and any license for
professional dances, the Court declared the ordinance
unconstitutional as going beyond more regulation into
prohibition of a profession or calling which properly
regulated, can be legitimate (de la Cruz v. Judge Paras,
G.R. 42571072, July 25, 1983).

4) General (public) welfare

a) regulating slaughter of carabaos


b) provisions for the suppression of agricultural pests
c) regulating nuisances
d) rules for the deportation of aliens
e) regulating building construction
f) prescribing registration of land under the Torrens System
g) zoning regulations
h) anti-graft laws designed to curb activities of public officials

G.3 Requisites for valid exercise:

G.3.1 The yardsticks for the exercise of the inherent powers of the
government are:

1. Due Process Clause


2. Equal Protection Clause

G.3.2. The two aspects of due process are:

1. Substantive due process


2. Procedural due process

Substantive due process simply means that the law be reasonable


and not arbitrary.

72
Procedural due process meant a law that hears before it condemns;
that proceeds upon inquiry, and renders judgment only after trial.

In the case of U.S. v. Ling Su Fan (10 Phil. 104-111-1 (1908) due
process simply means:

1) That there shall be a law prescribed in harmony with the general powers
of the legislative department of the Government;
2) That this law shall be reasonable in its operation;
3) That it shall be enforced according to the regular methods of procedure
prescribed; and
4) It shall be applicable alike to all citizens of a state or to all of a class.

In the case of Banco Espanol Filipino v. Palanca (37 Phil. 921, 934
(1918) the essentials of procedural due process in JUDICIAL
PROCEEDINGS are:

1) There must be a court or tribunal clothed with judicial power to hear


and determine the matter before it;

2) Jurisdiction must be lawfully acquired over the person of the defendant


or over the property which is the subject of the proceedings;

3) the defendant must be given opportunity to be heard; and

4) judgment must be rendered upon lawful hearing.

In the case of Ang Tibay v. Court of Industrial Relations, 69 Phil. 635


(1940), the “Cardinal primary requirements in ADMINISTRATIVE
PROCEEDINGS were summarized as follows:

1) The right to a hearing, which includes the right to present one’s case
and submit evidence thereof;

2) The tribunal must consider the evidence presented;

3) The decision must have something to support itself;

4) The evidence must be substantial (such reasonable evidence as a


reasonable mind might accept as adequate to support a conclusion).

5) The decision must be based on evidence presented at the hearing, or at


least contained in the record and disclosed to the parties affected;

73
6) The tribunal or body or any of its judges must act on its independent
consideration of the law and facts of the controversy, and not simpy
accept the views of a subordinate; and

7) The Board or body should, in all controversial questions, render its


decision in such manner that the parties to the proceeding can know
the various issues involved, and the reason for the decision rendered.

In Guzman v. National University, 142 SCRA 699, 706-7 (1986), the


Supreme Court provided the guidelines for the handling of disciplinary cases
in schools:

1) The students must be informed in writing of the nature and cause of


an accusation against them;

2) They shall have the right to answer the charges against them, 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.

H. Private acts (civil liberty) and the bill of rights

H.1. “Liberty is the freedom to do right and never wrong... ever guided by
reason and the upright and honourable conscience of the individual”
(Apolinario Mabini quoted in Rubi v. Provincial Board of Mindoro, 39
Phil. 660, 705 (1919).

H.2 “Civil liberty may be said to mean the measure of freedom which may be
enjoyed in a civilized community, consistently, with the peaceful enjoyment
of like freedom in others.. The right to liberty guaranteed by the
Constitution includes that right to exist and the right to be free from
arbitrary personal restraint or servitude..... The chief elements of the
guaranty are the right to contract, the right to choose one’s employment,
the right to labor, and the right of locomotions.”

H.3. The bill of rights is a guarantee that there are certain areas of life, liberty
and property which government power may not touch.

I. Due Process

74
I.1 Relativity of due process

In the case of U.S. v. Ling Su Fan (10 Phil. 104-111-1 (1908) due
process simply means:

1) That there shall be a law prescribed in harmony with the general powers
of the legislative department of the Government;

2) That this law shall be reasonable in its operation;

3) That it shall be enforced according to the regular methods of procedure


prescribed; and

4) It shall be applicable alike to all citizens of a state or to all of a class

I.2 Procedural and substantive due process

Substantive due process simply means that the law be reasonable


and not arbitrary.

Procedural due process meant a law that hears before it condemns;


that proceeds upon inquiry, and renders judgment only after trial.

I.3 Constitutional and statutory due process

I.3.1 “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” (Section 1, Art. III).

I.3.2 Statutory due process: “Laws shall take effect after fifteen (15) days
following the completion of their publication either in the Official
Gazette or in a newspaper of general circulation, unless it is otherwise
provided” (Art. 2 Civil Code of the Philippines).

I.4 Hierarchy of rights

I.4.1 When the constitution provides that “No person shall be deprived of
life, liberty or property”, would that mean that life and property
enjoy identical protection from the Constitution?

“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

75
breathing space to survive”, permitting government regulation only
“with narrow specificity.

“Property and property rights can be lost through


prescription; but human rights are imprescriptible. If human rights
are extinguished by the passage of time, then the Bill of Rights is a
useless attempt to limit the power of government and ceases to be an
efficacious shield against tyranny of officials, of majorities, of the
influential and powerful, and of oligarchs – political, economic or
otherwise.

“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 sanctions
not permitting dubious intrusion.

“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” ( Philippine Blooming Mills Employees
Organization v. Philippine Blooming Mills Co. Inc., 50 SCRA 189,
202-3 (1973 ) (Bernas, The 1987 Constitution: A Commentary pp.
103-104).

I.5 Judicial standards of review

I.5.1 The due process clause must be understood to guarantee not just
forms of procedure but also the very substance of life, liberty and
property. Due process clause meant application of both substantive
due process and procedural due process.

I.5.2 The Courts are at liberty – indeed, are under a solemn duty – to look
at the substance of things, whenever they enter upon the enquiry
whether the legislature has transcended the limits of its authority.

I.5.3 The Supreme Court gave generous latitude to legislation designed to


promote public health, public safety, or public welfare, nuisance,
social justice, care of the non-Christian inhabitants (Rubi v.
Provincial Board of Mindoro 39 Phil. 660 (1919), liberty of abode

76
and of changing the same (Villavicencio v. Lukban, 39 Phi. 778
(1919), right to contract (People v. Pomar 46 Phil. 440 (1924)

1.6 Void-for-vagueness doctrine

In People v. Nazario 186, 195-196 (1088) the Supreme Court said:

“As a rule, a statute or act may be said to be vague when it


lacks comprehensible standards that men “of common intelligence
must necessarily guess at its meaning and differ in its application.”

It is repugnant to the Constitution in two aspects 91) 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
becomes an arbitrary flexing of the Government muscle.

J. Equal protection

J.1. Concept

In Tolentino v. Board of Accountancy, 90 Phil. 83, 90 (1951), the


Supreme Court said: “The guarantee of equal protection means that no
person or class of persons shall be deprived of the same protection of the
laws which is enjoyed by other persons or other classes in the same place and
in like circumstances.”

J.2 “It is an established principle of constitutional law that the guaranty of the
equal protection of the laws is not violated by a legislation based on
reasonable classification. And the classification, to be reasonable,

(1) must rest on substantial distinction;

(2) must be germane to the purpose of the law;

(3) must not be limited to existing condition only; and

(4) must apply equally to all members of the same class.

J.3 Standards of judicial review on equal protection:

J.3.1 Rational Basis Test

“A law that touches on a constitutionally protected interest


must be rationally related to furthering a legitimate government

77
interest. In applying the rational basis test, courts begin with a strong
presumption that the law or policy under review is valid. The burden
of proof is on the party making the challenge to show that the law or
policy is unconstitutional. To meet the burden, the party must
demonstrate that the law or policy does not have a rational basis.
This is difficult to prove, because a court can usually find some
reasonable ground for sustaining the constitutionality of the
challenged law or policy.

For example, a state law that prohibits performing dentistry


without a license deprives lay persons of their constitutionally
protected rights to make contracts freely and discriminates against
those unable or unwilling to obtain a license. But a court would
undoubtedly uphold the constitutionality of the law because the
license requirement is a rational means of advancing the state’s
legitimate interests in public health and safety” (Wikipedia)

J. 3.2 Strict scrutiny test

To pass strict scrutiny, the law or policy must satisfy three (3) tests:

1) It must be justified by a compelling governmental interest. While


the Courts have never brightly defined how to determine if an
interest is compelling, the concept generally refers to something
necessary or crucial, as opposed to something merely preferred.
Examples include national security, preserving the lives of
multiple individuals, and not violating explicit constitutional
protections;

2) The law or policy must be narrowly tailored to achieve the goal or


interest. If the government action encompasses too much
(overbroad) or fails to address essential aspects of the compelling,
then the rule is not considered narrowly tailored; and

3) The law or policy must be the least restrictive means for achieving
that interest, that is, there cannot be a less restrictive way to
effectively achieve the compelling government interest. The test
will be met even if there is another method that is equally the least
restrictive. Some legal scholars consider this “least restrictive
means” requirement part of being narrowly tailored, though the
Court generally evaluates it separately.

In intermediate scrutiny test, it must be shown that the law or


policy being challenged furthers an important government interest in
a way that is substantially related to that interest.

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K. Search and seizures

Section 2. Art. III. “The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable search 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.”

K.1 Concept

K.1.1 It protects the privacy and sanctity of the person himself. It is a


guarantee of the right of the people to be secure in their persons
against unreasonable search and seizures. It is a guarantee against
unlawful arrest and other forms of restraint on the physical liberty
of the person.

K.1.2 Warrant Requirement

K.1.2.1 Requisites of a valid warrant:

1) It must be issued upon “probable cause”;

2) probable cause must be determined personally by a


judge;

3) such judge must examine under oath or affirmation the


complainant and the witnesses he may produce;

4) the warrant must particularly describe the place to be


searched and person to be seized.

NOTES:

1. Probable cause meant such reasons, supported by facts and


circumstances, as will warrant a cautious man in the belief that
his action and the means taken in prosecuting it, are legally just
and proper (People v. Syjuco, 64 Phil 667).

2. Probable cause for an arrest or for the issuance of a warrant of


arrest mean such facts and circumstances which would lead a
reasonably discreet and prudent man to believe that an offense
has been committed by the person sought to be arrested.

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3. Probable cause for a search meant 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
be searched.

4. “Personally examine the complainant and his witnesses” meant


the exclusive and personal responsibility of the issuing judge to
satisfy himself of the existence of probable cause. He is not
required to personally examine the complainant and his
witnesses and on the basis thereof, issue a warrant of arrest. He
may also rely on the fiscal’s report or if on the basis thereof he
finds no submission of supporting affidavits of witnesses to aid
him in arriving at conclusion as to the existence of probable
cause. Sound policy dictates this procedure; otherwise judges
would unduly laden with the preliminary examination and
investigation of criminal complaints instead of concentrating on
hearing and deciding cases filed before their courts” (Soliven v.
Judge Makasiar, Beltran v. Makasiar, G.?R. 8287, November
14, 1988).

5. Particularity of description meant “description that expresses a


conclusion of fact – not – 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” (Bache & Co. v.
Ruiz, 37 SCRA 823, 835 (1971).

6. “John Doe” satisfies the requirement of particularity of


description provided it contains a descriptio personae such as
will enable the officer to identify the accused” (People v. Veloso,
48 Phil. 169 (1925).

K.2 Warrantless searches

K.2.1 Not every warrantless search is illegal search. They are the
following:

1. When the right is voluntarily waived which means that:

a) the right exists

b) person involved had knowledge either actual or constructive

c) the person had an actual intention to relinquish the right

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2. When there is valid reason to “stop and frisk”

3. When the search is incidental to a lawful arrest.

4. Search of vessels and aircraft

5. Search of moving vehicle

6. Inspection of buildings and other premises for the enforcement


of sanitary and building regulations.

7. When prohibited articles are in plain view.

8. Search and seizure under exigent and emergency

9. “Areal target zoning” or “saturation drive” (valid exercise of


military powers of the President; Guanzon v. de Villa, 181
SCRA 263).

10. Searches of passengers at airport. R.A. 6235 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.

K. 3 Warrantless arrest

K.3.1 “A peace officer or private person may, without a warrant, arrest


a person:

(a) When, in his presence the person to be arrested has committed,


is actually committing, or attempting to commit an offense’

Notes: 1) “the officer arresting a person who has just committed, is


committing, or about to commit an offense must have
personal knowledge of that fact (People v. Burgos, 144
SCRA 1, 14 (September 4, 1986).

2) A buy-bust operation is an entrapment. Since the offense


happens right there and then, there is no need for a
warrant either for seizure of the goods or for the
apprehension of the offender (People v. Dela Cruz, G.R.
83260, April 18, 1990)

3) “A rebel, with or without warrant, may be arrested at any


time because rebellion is a continuing offense. H is

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deemed to be in the act of committing the offense at any
time of the day” (Umil v. Ramos, 187 SCRA 311).

4) “Speech which an officer’s estimation is criminally


seditious can justify warrantless arrest even if upon
prosecution the officer is proved wrong. The criminal
character of speech is something that is not easily
determined and must await court estimation” (Espiritu v.
Lim., G.R. 85727, October 3, 1991 (Bernas, 1987
Constitution: A Commentary, p 180).

(b) When an offense has in fact been committed, and he has


personal knowledge of facts indicating that the person to be
arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped


from a penal establishment or place where he is serving a
final judgment or temporarily confined while his case is
pending, or has escaped while being transferred from one
confinement to another.

“In cases falling under paragraphs (a) and (b)


hereof, the person arrested without a warrant shall be
forthwith delivered to the nearest police station or jail, and
he shall be proceeded against in accordance with Rule 112,
Section 7” (Section 5, Rule 113, Rules of Court).

K.4 Administrative arrests

K4.1 Warrants may be issued only by judges (Salazar v. Alchacoso,


G.R. 81510, March 14, 1990; Board of Commissioners v. de la
Rosa, 197 SCRA, 853, 879 ( 1991). With regard to overstaying
alien, the Commissioner of Immigration may order the arrest of
an alien in order to carry out a deportation order that has
become final.

K.4.2 Section 69 of the old Administrative Code provides:

“Section 69. Deportation of subject of foreign power. – A


subject of a foreign power residing in the Philippines shall not
be deported, expelled, or excluded from said Islands or
repatriated to his own country by the President of the
Philippines except upon prior investigation, conducted by said
Executive or his authorized agent, of the ground upon which
such action is contemplated. In such case the person concerned
shall be informed of the charge or charges against him and he

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shall be allowed not less than three (3) days for the preparation
of his defense. He shall also have the right to be heard by
himself and counsel, to produce witnesses in his own behalf,
and to cross-examine the opposing witnesses.”

K.5 Drug, alcohol and blood tests

“In essence, Pimentel claims that Sec. 36(g) of RA 9165 and


COMELEC Resolution No. 6486 illegally impose an additional
qualification on candidates for senator. He points out that, subject to
the provisions on nuisance candidates, a candidate for senator needs
only to meet the qualifications laid down in Sec. 3, Art. VI of the
Constitution, to wit: (1) citizenship, (2) voter registration, (3) literacy,
(4) age, and (5) residency. Beyond these stated qualification
requirements, candidates for senator need not possess any other
qualification to run for senator and be voted upon and elected as
member of the Senate. The Congress cannot validly amend or
otherwise modify these qualification standards, as it cannot
disregard, evade, or weaken the force of a constitutional mandate, or
alter or enlarge the Constitution.

“Pimentel’s contention is well-taken. Accordingly, Sec. 36 (g)


of RA 9165 should be, as it is hereby declared as, unconstitutional. It
is basic that if a law or an administrative rule violates any norm of
the Constitution, that issuance is null and void and has no effect. The
Constitution is the basic law to which all laws must conform; no act
shall be valid if it conflicts with the Constitution.1[8] In the discharge
of their defined functions, the three departments of government have
no choice but to yield obedience to the commands of the Constitution.
Whatever limits it imposes must be observed.

“The drug test prescribed under Sec. 36(c), (d), and (f) of RA
9165 for secondary and tertiary level students and public and private
employees, while mandatory, is a random and suspicionless
arrangement. The objective is to stamp out illegal drug and safeguard
in the process “the well being of [the] citizenry, particularly the
youth, from the harmful effects of dangerous drugs.” This statutory
purpose, per the policy-declaration portion of the law, can be
achieved via the pursuit by the state of “an intensive and unrelenting
campaign against the trafficking and use of dangerous drugs x x x
through an integrated system of planning, implementation and
enforcement of anti-drug abuse policies, programs and projects.”

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“Two cases and applied to this jurisdiction are: (1) schools and
their administrators stand in loco parentis with respect to their
students; (2) minor students have contextually fewer rights than an
adult, and are subject to the custody and supervision of their parents,
guardians, and schools; (3) schools, acting in loco parentis, have a
duty to safeguard the health and well-being of their students and may
adopt such measure . “In Board of Education, the Board of Education
of a school in Tecumseh, Oklahoma required a drug test for high
school students desiring to join extra-curricular activities. Lindsay
Earls, a member of the show choir, marching band, and academic
team declined to undergo a drug test and averred that the drug-
testing policy made to apply to non-athletes violated the Fourth and
14th Amendments. As Earls argued, unlike athletes who routinely
undergo physical examinations and undress before their peers in
locker rooms, non-athletes are entitled to more privacy.

The US Supreme Court, citing Vernonia, upheld the


constitutionality of drug testing even among non-athletes on the basis
of the school’s custodial responsibility and authority. In so ruling,
said court made no distinction between a non-athlete and an athlete.
It ratiocinated that schools and teachers act in place of the parents
with a similar interest and duty of safeguarding the health of the
students. And in holding that the school could implement its random
drug-testing policy, the Court hinted that such a test was a kind of
search in which even a reasonable parent might need to engage.

In sum, what can reasonably be deduced from the above two


cases and applied to this jurisdiction are: (1) schools and their
administrators stand in loco parentis with respect to their students;
(2) minor students have contextually fewer rights than an adult, and
are subject to the custody and supervision of their parents, guardians,
and schools; (3) schools, acting in loco parentis, have a duty to
safeguard the health and well-being of their students and may adopt
such measures as may reasonably be necessary to discharge such
duty; and (4) schools have the right to impose conditions on
applicants for admission that are fair, just, and non-discriminatory.

Supreme Court of the Philippines Ruling:

“Guided by Vernonia and Board of Education, the Court is of


the view and so holds that the provisions of RA 9165 requiring
mandatory, random, and suspicionless drug testing of students are
constitutional. Indeed, it is within the prerogative of educational
institutions to require, as a condition for admission, compliance with
reasonable school rules and regulations and policies. To be sure, the

84
right to enroll is not absolute; it is subject to fair, reasonable, and
equitable requirements.

“Just as in the case of secondary and tertiary level students,


the mandatory but random drug test prescribed by Sec. 36 of RA
9165 for officers and employees of public and private offices is
justifiable, albeit not exactly for the same reason. The Court notes in
this regard that petitioner SJS, other than saying that “subjecting
almost everybody to drug testing, without probable cause, is
unreasonable, an unwarranted intrusion of the individual right to
privacy,” has failed to show how the mandatory, random, and
suspicionless drug testing under Sec. 36(c) and (d) of RA 9165 violates
the right to privacy and constitutes unlawful and/or unconsented
search under Art. III, Secs. 1 and 2 of the Constitution” (SOCIAL
JUSTICE SOCIETY (SJS), G.R. No. 157870 -versus-DANGEROUS
DRUGS BOARD and PHILIPPINE DRUG ENFORCEMENT
AGENCY (PDEA);ATTY. MANUEL J. LASERNA, JR., G.R. No.
158633 -versus- DANGEROUS DRUGS BOARD and PHILIPPINE
DRUG ENFORCEMENTAGENCY)

L. Privacy of communication and correspondence


L.1 Private and public communications
Section 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.”
L.1.2 Privacy is inviolable except 1) upon lawful order of the court; 2) public
safety requires; 3) public order requires. Of course, upon showing of
probable cause.
L.1.3 Evidence obtained in violation is inadmissible in any proceeding
(criminal, civil and administrative proceedings).

Note: The inadmissibility of the evidence, however, does not mean that such
evidence is returned where it came from. If the evidence or object is not
prohibited, it must be returned (Bagalihog v. Fernandez, G.R. 96356,
June 27, 1991). But if the evidence or object is a contraband, such
evidence can be confiscated (Alih v. Castro 151 SCRA 279 (1987).

L.1.4 May an act of an individual, allegedly in violation of the other’s


constitutional rights, be invoked against the State? No in the absence of
governmental interference. “the protection against unreasonable search
and seizure cannot be extended to acts committed by private individuals

85
so as to bring it within the ambit of alleged unlawful intrusion by the
government” (People v. Andre Marti, G.r. No. 81561, 18 January 1991).

L.1.5 What is the writ of habeas data?


It is a remedy available to any person whose right to privacy in
life, liberty or security is violated or threatened by an unlawful act or
omission of a public official or employee, or of a private individual or
entity engaged in the gathering, collecting or storing of data or
information regarding the person, family, home and correspondence
of the aggrieved party.

L.1.6 Who may file a petition for the issuance of a writ of habeas data?

The petition may be filed by the aggrieved party. However, in


cases of extralegal killings and enforced disappearances, the petition
may be filed by:

(a) Any member of the immediate family of the aggrieved party,


namely: the spouse, children and parents; or
(b) Any ascendant, descendant or collateral relative of the
aggrieved party within the fourth civil degree of consanguinity
or affinity, in default of those mentioned in the preceding
paragraph.

Where can the petition be filed?

a. Regional Trial Court where the petitioner or respondent resides, or


that which has jurisdiction over the place where the data or
information is gathered, collected or stored, at the option of the
petitioner.

b. Supreme Court;

c. Court of Appeals; or

d. Sandiganbayan, when the action concerns public data files of


government offices No docket and other lawful fees shall be
required from an indigent petitioner. The petition of the indigent
shall be docketed and acted upon immediately, without prejudice
to subsequent submission of proof of indigency not later than 15
days from the filing of the petition.

M. Freedom of expression

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“No law shall be passed abridging the freedom of speech, of expression, or of
the press, or the right of the people peaceably to assemble and petition the
Government for redress of grievances” (Section 4, Article III).

M.1. Concept and scope

M.1.1 “The liberty of the press is indeed essential to the nature of a free
state: but this consists in laying no previous restraints upon
publication, and not in freedom from censure for criminal matter
when published. Every freeman has an undoubted right to lay
what sentiments he pleases before the public: to forbid this is to
destroy the freedom of the press: but if he publishes what is
improper, mischievous, or illegal, me must take the consequence of
his own temerity.”

M.1.2 Scope. Any and all modes of expression are embraced in the
guaranty including Section 18 (1) of Art. III, “No person shall be
detained solely by reason of his political beliefs and aspirations.”

M.1.3 The first prohibition pertains to “prior restraint”. It means


governmental restrictions on the press or other forms of expression
in advance of actual publication like licensing, judicial restraint in
the form of injunction or taxes measured by gross receipts for the
privilege or flat license fee for the privile of selling religious books.
Movie censorship though not of the same level as press censorship
is considered to belong to prior restraint. The power of the Movie
and Television Review and Classification Board (MTRCB) is to
“CLASSIFY” MOVIES NOT CENSORSHIP

M.1.4 Prior restraint is not at all absolute when the security of the
community life may be protected against incitements to acts of
violence and the overthrow by force of orderly government.

M.1.5 The second constitutional prohibition is “subsequent punishment”.

Freedom from subsequent punishment is an assurance so that an


individual may not hesitate to speak for fear that he might be held to
account for his speech or that may suffer the retaliation of the
officials he may have critized or cited. This freedom is also not
absolute but may be regulated in the interest of the public with
corresponding sanctions either penal or administrative in libel under
the Revised Penal Code (Art. 358) or for obscenity.

M.2 Content-based and content-neutral regulations

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Any content-based prior restraint on protected expression is
unconstitutional without exception. A protected expression means what it
says – it is absolutely protected from censorship. Thus, there can be no
prior restraint on public debates on the amendment or repeal of existing
laws, on the ratification of treaties, on expression not subject to prior
restraint is protected expression or high-value the imposition of new tax
measures, or on proposed amendments to the Constitution.

Prior restraint on expression is content-based if the restraint is


aimed at the message or idea of the expression. Courts will subject to
strict scrutiny content-based restraint. If the content-based prior
restraint is directed at protected expression, courts will strike down the
restraint as unconstitutional because there can be no content-based prior
restraint on protected expression. The analysis thus turns on whether
the prior restraint is content-based, and if so, whether such restraint is
directed at protected expression, that is, those not falling under any of
the recognized categories of unprotected expression.

If the prior restraint is not aimed at the message or idea of the


expression, it is CONTENT-NEUTRAL even if it burdens expression. A
content-neutral restraint is a restraint which regulates the time, place or
manner of the expression in public places without any restraint on the
content of the expression. Courts will subject content-neutral restraints
to intermediate scrutiny.

An example of a content-neutral restraint is a permit specifying


the date, time and route of a rally passing through busy public streets. A
content-neutral prior restraint on protected expression which does not
touch on the content of the expression enjoys the presumption of validity
and is thus enforceable subject to appeal to the courts. Courts will
uphold time, place or manner restraints if they are content-neutral,
narrowly tailored to serve a significant government interest, and leave
open ample alternative channels of expression.

In content-neutral prior restraint on protected speech, there


should be no prior restraint on the content of the expression itself. Thus,
submission of movies or pre-taped television programs to a government
review board is constitutional only if the review is for classification and
not for censoring any part of the content of the submitted materials.
However, failure to submit such materials to the review board may be
penalized without regard to the content of the materials. The review
board has no power to reject the airing of the submitted materials. The
review board’s power is only to classify the materials, whether for
general patronage, for adults only, or for some other classification. The
power to classify expressions applies only to movies and pre-taped
television programs but not to live television programs. Any

88
classification of live television programs necessarily entails prior
restraint on expression.

Expression that may be subject to prior restraint is unprotected


expression or low-value expression. By definition, prior restraint on
unprotected expression is content-based since the restraint is imposed
because of the content itself. In this jurisdiction, there are currently only
four categories of unprotected expression that may be subject to prior
restraint. This Court recognized false or misleading advertisement as
unprotected expression only in October 2007.

Only unprotected expression may be subject to prior restraint.


However, any such prior restraint on unprotected expression must
hurdle a high barrier. First, such prior restraint is presumed
unconstitutional. Second, the government bears a heavy burden of
proving the constitutionality of the prior restraint

The prevailing test in this jurisdiction to determine the


constitutionality of government action imposing prior restraint on three
categories of unprotected expression – pornography, advocacy of
imminent lawless action, and danger to national security - is the clear
and present danger test. The expression restrained must present a clear
and present danger of bringing about a substantive evil that the State has
a right and duty to prevent, and such danger must be grave and
imminent.

Prior restraint on unprotected expression takes many forms - it


may be a law, administrative regulation, or impermissible pressures like
threats of revoking licenses or withholding of benefits. The impermissible
pressures need not be embodied in a government agency regulation, but
may emanate from policies, advisories or conduct of officials of
government agencies.

M.3 Tests

M.3.1 “Dangerous Tendency Rule – For speech to be punishable, there


should be a rational connection between the speech and the evil
apprehended. Simply put, the determination by the question: Is the
statute reasonable?

M.3.2 Clear and Present Danger Rule: “The question in every case is
whether the words used in such circumstances are of such nature

89
as to create a clear and present danger that they will bring about
the substantive evils that Congress has a right to prevent. It is a
question of proximity and degree”(Schenck v. United States, 249
U.S. 47, 52 (1923).

M.3.3. Balancing of Interest test – “If on balance it appears that the public
interest served by restrictive legislation is of such a character that
it outweighs the abridgment of freedom, then the Court will find
the legislation valid”

M.4 Facial Challenge and the over breadth doctrine

The “as applied” approach embodies the rule that one can challenge the
constitutionality of a statute only if he asserts a violation of his own rights. The
rule prohibits one from challenging the constitutionality of the statute based
solely on the violation of the rights of third persons not before the court. This
rule is also known as the prohibition against third-party standing.

The U.S. Supreme Court has created a notable exception to the prohibition
against third-party standing. Under the exception, a petitioner may mount a
“facial” challenge to the constitutionality of a statute even if he claims no
violation of his own rights under the assailed statute. To mount a “facial”
challenge, a petitioner has only to show violation under the assailed statute of
the rights of third parties not before the court. This exception allowing “facial”
challenges, however, applies only to statutes involving free speech. The ground
allowed for a “facial” challenge is over breadth or vagueness of the statute.
Thus, the U.S. Supreme Court declared:

x x x the Court has altered its traditional rules of standing to


permit - in the First Amendment area - ‘attacks on overly broad
statutes with no requirement that the person making the attack
demonstrate that his own conduct could not be regulated by a statute
drawn with the requisite narrow specificity.’ x x x Litigants,
therefore, are permitted to challenge a statute not because their own
rights of free expression are violated, but because of a judicial
prediction or assumption that the statute's very existence may cause
others not before the court to refrain from constitutionally protected
speech or expression. (Emphasis supplied)

The rationale for this exception allowing a “facial” challenge is to counter


the “chilling effect” on protected speech that comes from statutes violating free
speech. A person who does not know whether his speech constitutes a crime
under an overbroad or vague law may simply refuse to speak to avoid being
charged of a crime. The overbroad or vague law chills him into silence.

90
Prof. Erwin Chemerinsky, a distinguished American textbook writer on
Constitutional Law, explains clearly the exception of over breadth to the rule
prohibiting third-party standing in this manner:

The third exception to the prohibition against third-party standing


is termed the “over breadth doctrine.” A person generally can argue that
a statute is unconstitutional as it is applied to him or her; the individual
cannot argue that a statute is unconstitutional as it is applied to third
parties not before the court. For example, a defendant in a criminal trial
can challenge the constitutionality of the law that is the basis for the
prosecution solely on the claim that the statute unconstitutionally
abridges his or her constitutional rights. The over breadth doctrine is an
exception to the prohibition against third-party standing. It permits a
person to challenge a statute on the ground that it violates the First
Amendment (free speech) rights of third parties not before the court,
even though the law is constitutional as applied to that defendant. In
other words, the over breadth doctrine provides that: “Given a case or
controversy, a litigant whose own activities are unprotected may
nevertheless challenge a statute by showing that it substantially abridges
the First Amendment rights of other parties not before the court.”

M.5 Commercial speech

The Supreme Court of the United States has prescribed the four-
prong Central Hudson test to determine whether a governmental
regulation of commercial speech is constitutional. This test asks initially (1)
whether the commercial speech at issue is protected by the First
Amendment (that is, whether it concerns a lawful activity and is not
misleading) and (2) whether the asserted governmental interest in
restricting it is substantial. “If both inquiries yield positive answers,” then
to be constitutional the restriction must (3) “directly advance the
governmental interest asserted,” and (4) be “not more extensive than is
necessary to serve that interest.

M.6 Private vs. Government speech

The government speech doctrine, in American Constitutional Law,


deals with speech made by the government. The doctrine says that the
government need not maintain viewpoint neutrality in its own speech,
broadly defined. For example, the Drug Enforcement Administration need
not present alternative viewpoints on the benignity of marijuana, but may
unequivocally propound its own viewpoint on marijuana's perniciousness.

On its face, the government speech doctrine is unobjectionable, as


it is difficult to imagine how a government could accomplish many goals
without adopting definite stances on issues.

91
The Government Speech doctrine establishes that the government
may advance its own speech without requiring viewpoint neutrality when
the government itself is the speaker. The doctrine was implied in Wooley v.
Maynard in 1971, when the Supreme Court acknowledged a legitimate
government interest in communicating an official, ideologically partial
message to the public. The government’s right to transit its message was
immediately contrasted with the private Free Speech rights conveyed by
the First Amendment. Thus, when the state is the speaker, it may make
content based choices. The simple principle has broad implications, and
has led to contentious disputes within the Supreme Court.

In Rust v. Sullivan, government-funded doctors in a government


health program were not allowed to advise patients on obtaining abortions.
The doctors challenged this law on Free Speech grounds. However, the
Court held that because the program was government-funded, the doctors
were therefore speaking on behalf of the government. Therefore, the
government could say what it wishes, and “the Government has not
discriminated based on viewpoint; it has merely chosen to fund one activity
to the exclusion of the other.” This case has been reinforced to represent
the seminal Government Speech Doctrine case, as seen in Rosenberger v.
Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995) as
well as Johanns v. Livestock Marketing Association, 544 U.S. 550 (2005). In
Legal Services Corp. v. Velazquez, the Supreme Court held that, although
providing government-funded legal services appeared similar to
government-funded doctors, the speech of the lawyers was private speech
because lawyers spoke on behalf of their clients. As a result, the
government could not prevent these attorneys from filing constitutional
suits against the government (Wikipedia).

M.7 “Heckler’s veto" refers to a tricky attempt to limit unpopular speech.


Say a very unpopular group wants to hold a parade and asks for a
permit. The government isn't allowed to refuse the permit based upon
the beliefs of the applicants. But the government denies the permit, saying
(and maybe really believing) that it isn't because the government
disapproves of the group's message, it's just afraid that so many people
will be outraged that there might be violent protests. Can the government
deny the permit?

No. Under the Free Speech Clause of the First Amendment, the
government may not silence speech based on the reaction (or anticipated
reaction) of a hostile audience, unless there is a "clear and present
danger" of grave and imminent harm, which isn't easy to prove.
Otherwise, a vocal minority (or for that matter, the majority) could
always prevent the expression of ideas it does not like.

92
Not only may government may not shut down a speaker out of fear of
others ‘reactions, it cannot punish or disadvantage a person on the basis
of his views out of concern that others may be offended or angered by
them. Thus, the doctrine has been applied beyond the free speech context
to such matters as the rights of gays in the military (saying that the mere
fact that some heterosexual soldiers may be offended by homosexuality
cannot justify discrimination against homosexual soldiers) and abortion
rights (saying that the fear that violent people will create disturbances
around clinics does not justify banning clinics).
As the Supreme Court put it in Brown v. Louisiana, 383 U.S. 131, 133 n. 1
(1966),"Participants in an orderly demonstration in a public place are not
chargeable with the danger, unprovoked except by the fact of the
constitutionally protected demonstration itself, that their critics might
react with disorder or violence."
Makes sense, doesn't it? Without the doctrine of the "Heckler's Veto" (or,
more accurately, the doctrine of not allowing heckler's veto’), we would be
handing the power to control speech over to the most violent and
obnoxious people, and soon we would hear only the views they like. “Susan
Gellman

M.8 Rules on assembly and petition

M.8.1 The rules are:

1) The applicant for a permit to hold an assembly should inform


the licensing authority of the date, the public place where and
the time when it will take place;

2) If it is a private place, only the consent of the owner or of the one


entitled to its legal possession is required;

3) Such application should be filed well ahead of time to enable the


public official concerned to appraise whether there may be valid
objections to the grant of the permit or to its grant but to
another public place;

4) It is an indispensable condition to such refusal or modification


that the clear and present danger test be the standard for the
decision reached.

The presumption must be to incline the weight of the


scales of justice on the side of liberty. If public authority is of the
view that there is such an imminent and grave danger of a
substantive evil, the applicants must be heard on the matter.
Thereafter, the decision of public authority, whether favorable or

93
adverse, must be transmitted to the applicants at the earliest
opportunity. Thus, if so minded, they can have recourse to the
proper judicial authority” (Resolution, J.B.L. Reyes v. Mayor
Bagatsing, G.R. 65366, October 25, 1983).

N. Freedom of religion

“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” (Section 5, Article III).

N.1 Non-establishment clause means that the State cannot establish or sponsor
an official religion. The non-establishment clause prohibits the State from
passing “laws which aid one religion, aid all religions, or prefer one
religion over another” The intermediate views are chiefly two (1) the non-
establishment clause prohibits ONLY DIRECT SUPPORT OF
INSTITUTIONAL RELIGION but not support INDIRECTLY accruing to
churches and church agencies through support given to members; (2) both
direct and indirect aid to religion are prohibited but ONLY IF THE
SUPPORT INVOLVES PREFERENCE OF ONE RELIGION OVER
ANOTHER OR PREFERENCE OF RELIGION OVER IRRELIGION”
(Bernas, The 1987 Constitution: A Commentary p. 303).

N.2 “The separation of church and state shall be inviolable” (Section 6, Art. II)

N.3 “Religious denominations and sects shall not be registered” (Section 2 (5)
Art. IX-C)

N.4 “The party-list x x x. For three consecutive terms x x x and such other
sectors as may be provided by law EXCEPT the religious sector” (Section 5
(2), Art. VI).

N.5 “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” (Section 29 (2) Art. VI).

N.6 The values non-establishment seeks to protect are voluntarism and


insulation of the political process from interfaith dissension. Such
voluntarism cannot be achieved unless the political process is insulated

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from religion and unless religion is insulated from politics. Benevolent
neutrality is summarized into four propositions or tests:

1) Government must not prefer one religion over another religion or


irreligion because such preference would violet voluntarism and breed
dissension;

2) Government funds must not be applied to religious purposes because this


too would violate voluntarism and breed interfaith dissension;

3) Government action must not aid religion because this too can violate
voluntarism and breed interfaith dissension; and

4) Government action must not result in excessive entanglement with


religion because this too can violate voluntarism and breed interfaith
dissension.

N.7 Free exercise clause

“Freedom of conscience and freedom to adhere to such religious


organization or form of worship as the individual may choose cannot be
restricted by law. On the other hand, it safeguards the free exercise of the
chosen for of religion. Thus the Amendment embraces two concepts –
freedom to believe and freedom to act. The first is absolute, but in the
nature of things, the second cannot be” Cantwell v. Connecticut, 310 U.S.
296, 303-4 (1940)

N.7.1 The judicial task in free exercise cases is one of balancing the secular
interest of the state with the interest of religion. The tests are:

1) Clear and present danger test - The question in every case is


whether the action used in such circumstances and are of such
nature as to create a clear and present danger that they will
bring about the substantive evils that Congress has a right to
prevent.

2) Compelling state interest test

Justice O’Connor asserted that “(t)he compelling state


interest test effectuates the First Amendment’s command that
religious liberty is an independent liberty, that it occupies a
preferred position, and that the Court will not permit
encroachments upon this liberty, whether direct or indirect,
unless required by clear and compelling government interest
‘of the highest order’”

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Benevolent neutrality

With religion looked upon with benevolence and not hostility, benevolent
neutrality allows accommodation of religion under certain circumstances.
Accommodations are government policies that take religion specifically into account
not to promote the government’s favoured form of religion, but to allow individuals
and groups to exercise their religion without hindrance. Their purpose or effect
therefore is to remove a burden on, or facilitate the exercise of, a person’s or
institution’s religion. As Justice Brennan explained, the “government [may] take
religion into account…to exempt, when possible, from generally applicable
governmental regulation individuals whose religious beliefs and practices would
otherwise thereby be infringed, or to create without state involvement an
atmosphere in which voluntary religious exercise may flourish.” Accommodation is
forbearance and not alliance. it does not agreement with the minority, but respect
for the conflict between the temporal and spiritual authority in which the minority
finds itself.
Balancing of Interests
In weighing the state’s interest and religious freedom, when these collide,.
three questions are answered in this process. First, “has the statute or government
action created a burden on the free exercise of religion?” The courts often look into
the sincerity of the religious belief, but without inquiring into the truth of the belief
because the Free Exercise Clause prohibits inquiring about its truth;
Second, the court asks: “is there a sufficiently compelling state interest to
justify this infringement of religious liberty?” In this step, the government has to
establish that its purposes are legitimate for the state and that they are compelling;
and
Third, the court asks: “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?” The analysis requires
the state to show that the means in which it is achieving its legitimate state objective
is the least intrusive means, i.e., it has chosen a way to achieve its legitimate state
end that imposes as little as possible on religious liberties.
Although our constitutional history and interpretation mandate benevolent
neutrality, benevolent neutrality does not mean that the Court ought to grant
exemptions every time a free exercise claim comes before it. But it does mean that
the Court will not look with hostility or act indifferently towards religious beliefs
and practices and that it will strive to accommodate them when it can within
flexible constitutional limits; it does mean that the Court will not simply dismiss a
claim under the Free Exercise Clause because the conduct in question offends a law
or the orthodox view for this precisely is the protection afforded by the religion
clauses of the Constitution, i.e., that in the absence of legislation granting exemption
from a law of general applicability, the Court can carve out an exception when the
religion clauses justify it. While the Court cannot adopt a doctrinal formulation

96
that can eliminate the difficult questions of judgment in determining the degree of
burden on religious practice or importance of the state interest or the sufficiency of
the means adopted by the state to pursue its interest, the Court can set a doctrine on
the ideal towards which religious clause jurisprudence should be directed. We here
lay down the doctrine that in Philippine jurisdiction, we adopt the benevolent
neutrality approach not only because of its merits as discussed above, but more
importantly, because our constitutional history and interpretation indubitably show
that benevolent neutrality is the launching pad from which the Court should take
off in interpreting religion clause cases. The ideal towards which this approach is
directed is the protection of religious liberty “not only for a minority, however
small- not only for a majority, however large- but for each of us” to the greatest
extent possible within flexible constitutional limits( Estrada vs Escritor : AM P-02-
1651 : August 4, 2003 : J. Puno . EN BANC. [A.M. No. P-02-1651. August 4, 2003].
ALEJANDRO ESTRADA, complainant, vs. SOLEDAD S. ESCRITOR,
respondent. D E C I S I O N. PUNO, J

Strict neutrality
Strict neutrality holds that government should base public policy solely on
secular considerations, without regard to the religious consequences of its actions.
The debate between accommodation (benevolent neutrality) and strict neutrality is
at base a question of means: “Is the freedom of religion best achieved when the
government is conscious of the effects of its action on the various religious practices
of its people, and seeks to minimize interferences with those practices? Or is it best
advanced through a policy of ‘religious blindness’ - keeping government aloof from
religious practices and issues?” An accommodationist holds that it is good public
policy, and sometimes constitutionally required, for the state to make conscious and
deliberate efforts to avoid interference with religious freedom. On the other hand,
the strict neutrality adherent believes that it is good public policy, and also
constitutionally required, for the government to avoid religion-specific policy even
at the cost of inhibiting religious exercise.

O. Liberty of Abode and Freedom of Movement

“The liberty of abode and of changing the same within the limits prescribed
by law shall not be impaired except upon lawful order of 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”(Section 6, Art. III).

O. 1 The Supreme Court stopped the City Mayor of Manila and Chief of Police
by sending women of ill repute to Davao “If the City Mayor and the Chief
of Police can take to themselves such power, then any official can do the
same. And if a prostitute could be sent against her wishes and under no
law from one locality to another within the country, then officialdom can

97
hold the same club over the head of any citizen (Villavicencio v. Lukban,
39 Phil. 778, 786 (1919).

O. 2. To promote better education, advancement and protection, the members of


certain non-Christian tribes were required to reside in a designated
reservation. The Supreme Court sustained such confinement in a
reservation (Rubi v. Provincial Board of Mindoro, 39 Phil. 660 (1919).

O.3. A domestic helper has the right to transfer another employer even if she
has an outstanding obligation to pay for her transportation from the
province by an employment agency which detained her and was released
through the writ of habeas corpus (Caunca v. Salazar, 82 Phil. 851).

O.4 The limitations on the right to travel are for the interest of:

a) national security
b) public safety; and
c) public health

The Supreme Court sustained the refusal the government to allow the
immediate return of Marcos and his family after the revolution on the
ground that it would endanger national security.

O.5 A lawful order of the court is a valid restriction on the right to travel.

O.6 Executive officers may limit the liberty of travel even without court order
on the basis of national security, public safety, and public health (Silverio
v. Court of Appeals, 195 SCRA 760)

O.7 Everyone has the right to leave any country, including his own and to return
to his country (Art.13. (2) Universal Declaration of Human Rights.

O.8 Marcos v. Sandiganbayan, G.R. 115132-34, August 9, 1995 “The right to


travel guaranteed in the Constitution involves the right to travel within the
country, the right to leave the country, but not the right to return to the
country”.

P. Right to information

“The right of the people to information on matters of public concern 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 citizen, subject to
such limitations as may be provided by law” (Section 7, Art. III)

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Note: Similarly, the state policy of full public disclosure extends only to
“transactions involving public interest” and may also be subject to
reasonable conditions prescribed by law. “Public interest” and “public
concern” was explained by the Court thus:

“In determining whether or not particular information is of public


concern there is no rigid test which can be applied. Public concern like
public interest is a term that eludes exact definition. Both terms embrace a
broad spectrum of subjects which the public may want to know, either
because these directly affect their lives, or simply because such matters
naturally arouse the interest of an ordinary citizen. In the final analysis, it is
the courts to determine on a case to case basis whether the matter at issue is
of interest or importance as it relates to or affects the public” (Valmonte v.
Belmonte, Jr. 170 SCRA 256, 1989).

Under R.A. 6713 public officials and employees are mandated to


provide information on their policies and procedures in clear and
understandable language, and ensure openness of information, public
consultations and hearing whenever appropriate x x x except when
“otherwise provided by law or when required by the public interest.” In
particular, the law mandates free access , at reasonable hours, to the annual
performance reports of offices and agencies of government and government
owned or controlled corporations; and the statements of assets, liabilities and
financial disclosures of all public officials and employees (Chavez v. PCGG.
299 SCRA744, December 9, 1998).

P.1 Access to official records may not be prohibited but may be regulated either
through a law or power of control of the officer over records under his
custody with appropriate classification on what matters are of public
concern and authority to determine the manner of access to said documents.
However, right of access may not be extended to trade secrets or confidential
commercial and financial information and matters of national security
(Garcia v. Board of Investments, September 7, 1989)

P.2 The right may be invoked even against government owned and controlled
corporation as they are also to serve the people.

P.3 The voting slips of individual members of the Censorship Board when they
pass judgment on movies may be opened for inspection (Aquino-Sarmiento
v. Morato, G.R. 92541, November 13, 1991).

P.4 While a government owned and controlled corporation like the GSIS may be
compelled to make available the documents evidencing clean loans to
legislators, the GSIS may not be compelled to compile a list or make
abstracts of the transactions.”

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P.5. The standards that have been developed for the regulation of speech and
press and assembly and petition and of association are applicable to the
right of access to information. Those are the dangerous tendency rule, the
clear and present danger and the balancing of interest test.

P.5.1 Dangerous tendency rule – that there be a rational connection


between the speech and the evil apprehended. Simply put, the
inquiry is the reasonableness of the statute.

P.5.2 Clear and present danger rule – the question in every case is whether
the words are used in such circumstances and are of such a nature as
to create a clear and present danger that they will bring about the
substantive evils that Congress has a right to prevent. It is a question
of proximity and degree.

P.5.3 Balancing of interest test – rests on the theory that it (balancing) is


the Court’s function in the case before it. If on balance it appears
that the public interest served by restrictive legislation is of such a
character that it outweighs the abridgment of freedom, then the
court will find the legislation valid.

P.6 Publication of laws and regulations

P.6.1. When the law or regulation requires publication there would be no


effective due process when the same are not publish.

P.6.2. Effect and Application of Laws

When law takes effect (Civil Code, Art. 2)

‘Laws shall take effect after fifteen (15) days following the
completion of their publication either in the Official Gazette or in a
newspaper of general circulation, unless it is otherwise provided.”

Q. Right of Association

“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” (Section 8, Article III).

Q.1 The right to form association does not include the right to compel others
to join an association. However, where a land buyer buys a lot with an
annotation or lien that the prospective lot owner shall become an
automatic member of a homeowners association becomes a member
thereof” (Bel Air Village Association v. Dionisio 174 SCRA, 589, 597
(1989)

100
Q.2. One who becomes an employee of an establishment that has a closed
shop agreement with the union thereby becomes a member of the union
(Tanduay Distillery Labor Union v. NLRC, 149 SCRA 470 (1l87).
However, a member of a church or sect whose teaching prohibits joining
an association cannot be compelled to be a member because freedom of
religion, in the hierarchy of values defined in Section 1, Art. III, is
superior to contract (Philippine Blooming Mills Employees v. Philippine
Blooming Mills, 51 SCRA 189 (1973).

R. Eminent Domain

“Private property shall not be taken for public use without just
compensation” (Section 9, Art. III)

R.1 It is the primordial right of the sovereign power to appropriate, not only
the public but the private property of all citizens within the territorial
sovereignty to public purpose.

R.2 By tradition, the power of eminent domain was lodged with the executive
arm of the government (Visayan Refining Co. v. Camus, 40 Phil. 550, 559
(1919) It lays dormant until the Legislature sets it in motion.

R.3 Expansive concept of public use. Public use is as broad as public welfare.
For whatever is beneficially employed for the community is a public
purpose (Sena v. Manila Railroad Co, 42 Phil. 102, 105 (1921).
Expropriation for socialized housing, expropriation for the construction
of irrigation systems to make water available for farmers, for urban and
housing reform and agrarian reform, are for public purpose.

In Province of Camarines Sur v. CA, 222 SCRA 173 (1993) the


Supreme Court considers action by the State to carry out its duty to
provide housing an exercise of police power superior to the obligation of
contracts.

R.4 Just compensation

a) “The just and complete equivalent of the loss which the owner of the
thing expropriated has to suffer by reason of the expropriation”
(Province of Tayabas v. Perez, 66 Phil. 467, 469 (1938);

b) “The compensation given to the owner is just if he receives for his


property a sum equivalent to its “market value”. “Market value” is
the price fixed by the buyer and seller in the open market in the
usual and ordinary course of legal trade and competition; the price
and value of the article established or shown by sale, public or

101
private, in the ordinary way of business; the fair value of property
between one who desires to purchase and one who desires to sell;
the current price; the general or ordinary price for which property
may be sold in that locality. To the market value must include
“CONSEQUENTIAL DAMAGES”. From the consequential
damages must be deducted the CONSEQUENTIAL BENEFITS,
which is the increase in the value of the other interests of the owner
that can be attributed to the new use to which his former property
will be put by the expropriating authority (Manila Railroad Co. v.
Rodriguez 13 Phil. 347 (1909).

c) The value of the property taken is computed as of the time of taking,


and between the actual taking and the actual payment legal interest
accrues (Commissioner of Public Highways v. Burgos 96 SCRA 831
(March 31, 1980).

d) Long line of cases state that compensation/ value of the property taken
is computed as of the time of taking by the expropriating authority,
and between the actual taking and the actual payment legal interest
accrues (Commissioner of Public Highways v. Burgos 96 SCRA 831
(March 31, 1980; Republic v. Sarabia, G.R. No. 157847, August 5,
2005). THIS IS THE CONTROLLING DOCTRINE.

e) Section 4, Rule 67 The value must be at the time of the filing of the
complaint for expropriation. Corollary, the filing of the case generally
coincides with the taking. If the filing of the case comes later than the
time of taking and meantime the value of the property has
appreciated/increased because of the use to which the expropriator has
put it, the value is that of the EARLIER taking. If the value
appreciated/increased independent of the expropriator’s act, the value
is of the LATER filing of the case (National Power Corporation v. CA,
G.R. No. 113194,March 11, 1996).

R.5 The elements of the taking which could be the subject of judicial review
are:

1) taking of private property’


2) taking must be for public use;
3) there must be just compensation

R.6 The circumstances for taking are:

1) entry upon the private property by the expropriator


2) entry must be permanent;
3) entry under warrant or colour of legal authority

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4) public use
5) ousted the owner of his beneficial use or enjoyment of the property

R.7 Kinds of expropriation (keyword: ONE)

1) Ordinary expropriation (Section 9, Article III) Private property for


public use.

2) Natural expropriation - Private property permanently inundated by


water like change of river course (Article

3) Extraordinary expropriation (Section 4, Article XIII) Private property


for distribution to private persons in the interest of agrarian reform.

R.8 If the expropriator failed to use the property for public use the expropriator
may still use the same for public purpose but if the expropriator CEASES
to use the property for a public purpose, property reverts to the owner in
fee simple (Heirs of Moreno v. Mactan-Cebu International Airport, G.R.
No. 156273, August 9, 2005). The owner may repurchase the property.

R.9 For purposes of determining just compensation, trial by commissioners is a


a substantive right which a judge may not dispense with (Manila Electric
Co. v. Pineda, 206 SCRA 196-204 (1992).

R.10 Exercise of local government expropriation requires an ORDINANCE( not


a resolution) passed by the council empowering the mayor to exercise
expropriation and at the same time appropriating budget thereof. Prior to
the exercise of eminent/inferior domain, the government must make a
prior offer to buy the land. If the owner refused, the local government may
initiate expropriation proceedings. The requirements are:

1) An ordinance passed by the council authorizing the mayor, in behalf of


the LGU, to exercise the power of eminent domain;
2) The power is exercised for public use, or public welfare, or for the
benefit of the poor and the landless;
3) Payment of just compensation;
4) A valid and definite offer has been previously made but said offer was
refused (Jesus is Lord School v. Municipality of Pasig, G.R. No. 152230,
August 9, 2005)

S. Contract Clause

“No law impairing the obligation of contracts shall be passed” Section 10,
Article III).

S.1 The provision is addressed to the Congress of the Philippines.

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S.2 The law impairs the obligation of contracts when:

1) it changes the terms of a legal contract between the parties, either in time
or mode of performance;
2) it imposes new conditions or dispenses with those expressed; and
3) it authorizes for its satisfaction something different from that provided in
the terms (Clemons v. Nolting, 42 Phil. 702 (1922).

T. Legal assistance and free access to courts

“Free access to courts, quasi-judicial bodies and adequate legal assistance


shall not be denied to any person by reason of poverty” (Section 11, Article III).

T.1 Section 7, Rule 5 of the New Rules of Court allows pauper litigants.

U. Rights of suspects (Section 12, Art. III)

Section 12
(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
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 of any other means which
vitiates the free will shall be used against him. Secret detention places,
solitary, incommunicado, or other similar form 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 of similar practices, and their families.”

U.1 The rights available to a person under investigation are:

1) the right to remain silent


2) the right to competent and independent counsel preferably of his own
choice;
3) the right to be informed of such rights.

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U.2. The reason for the rule on investigation is the recognition that psychological
if not physical atmosphere of custodial investigation, in the absence of
proper safeguards, is inherently coercive (Miranda v. Arizona 384 U.S. 436
(1966).

U.3 The constitutional right extends only to testimonial compulsion and not
when the body of the accused is to be examined (People v. Gamboa, G.R.
91374, February 25, 1991).

U.4 These rights begin to be available where 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 lends itself to eliciting
incriminating question; “after a person has been taken into custody or
otherwise deprived of his freedom of action in any significant way” (People
v. Loveria, G.R. No. 79138, July 21, 1990; People v. De la Cruz G.R. No.
118866-68 September 17, 1997)

U.5 “Custodial investigation” shall include the practice of issuing an


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 law (Republic Act 7438; People vs.
Dumantay, G.R. No. 130612, May 11, 1999)

U.6 The right to counsel attaches upon the start of the investigation. In a police
line up there is no investigation yet. However, a person already under an
investigation and placed in a police line-up is entitled to his right to
counsel.

U.7 “If however, he voluntarily admits the killing and it was precisely because
he surrendered to admit the killing, the constitutional safeguards to be
informed of the rights to silence and to counsel may not be invoked (People
v. Taylaran, 108 SCRA 373 (October 30, 1981).

U.8 The constitutional privilege applies to a re-enactment whenever there is


evidence “COMMUNICATIVE IN NATURE” acquired under duress.

U.9 Guidelines for arresting officers

1) The person arrested, detained, invited or under custodial investigation


must be informed in a language known to and understood by him of the
reason for the arrest and he must be shown the warrant of arrest, if any.
Every other warning, information or communication must be in a
language known to and understood by said person;

105
2) He must be warned that he has a right to remain silent and that any
statement he makes may be used as evidence against him;

3) He must be informed that he has the right to be assisted at all times and
have the presence of an independent and competent lawyer, preferably
of his own choice;

4) He must be informed that if he has no lawyer or cannot afford the


services of a lawyer, one will be provided to him; and that a lawyer may
also be engaged by any person in his behalf, or may be appointed by the
Court upon petition of the person arrested or one acting in his behalf;

5) That whether or not the person arrested has a lawyer, he must be


informed that no custodial investigation in any form shall be conducted
except in the presence of his counsel or after a valid waiver has been
made;

6) The person arrested must be informed that, at any time, he has the right
to communicate or confer by the most expedient means, e.g., by
telephone, radio, letter or messenger, with his lawyer (either retained or
appointed), any member of his immediate family, or any medical doctor,
priest or minister chosen by him or by anyone of his immediate family
or by his couinsel, or be visited by/confer with duly accredited national
or international non-government organization. It shall be the
responsibility of the officer to ensure that this is accomplished.

7) He must be informed that he has the right to waive any of said rights
provided it is made voluntarily, knowingly, and intelligently, and ensure
that he understood the same;

8) In addition, if the person arrested waives his right to a lawyer, he must


be informed that it must be done i writing and in the presence of
counsel, otherwise, he must be warned that the waiver is void even if he
insists on his waiver and chooses to speak;

9) The person arrested must be informed that he may indicate in any


manner at any time or stage of the process that he does not wish to be
questioned with a warning that once he makes such indication the police
may not interrogate him if the same had not yet commenced, or the
interrogation must cease if it has already begun;

10) The person arrested must be informed that his initial waiver of his right
to remain silent, the right to counsel or any of his rights does not bar
him from invoking it at any time during the process, regardless of
whether he may have answers some questions or volunteered some
statements; and

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11) He must be informed that any statement or evidence, as the case may be,
obtained in violation of any of the foregoing, whether inculpatory or
exculpatory, in whole or in part, shall be inadmissible in evidence (People
v. Mahinay, G.R. No. 122485, February 1, 1999).

Notes: 1) Confession or admission obtained in violation of Sections 12 and


17 shall be inadmissible in evidence. They are the “fruit of the
poisonous tree”. The Court declared: “We have also adopted the
libertarian exclusionary rule known as the “fruit of the poisonous
tree”, a phrase minted by Mr. Justice Felix Frankfurter in
Nardone v. U.S that once the primary source (“the tree”) is
shown to have been unlawfully obtained, any secondary or
derivative evidence (“the fruit”) derived from it is also
inadmissible.

2) For failure of the accused to object to the offer in evidence, the


uncounselled confession was admitted in evidence. There is
waiver of the exclusionary rule (People v. Gonzales, G.R. 142932,
May 29, 2002).

V. Rights of the accused

Section 14, Article III “No person shall be held to answer for a criminal
offense without due process of law”.

V.1 Criminal due process. In Nunez v. Sandiganbayan, 111 SCRA 433 January
30, 1082 citing Vera v. People, 31 SCRA 711 February 18, 1970, “due
process is satisfied if the accused is “informed as to why he is proceeded
against and what charge he has to meet, with his conviction being made to
rest on evidence that is not tainted with falsity after full opportunity for
him to rebut it and the sentence being imposed in accordance with a valid
law. It is assumed of course, that the court that rendered the judgment is
one of competent jurisdiction.

V.1.1 Emphasis was given as part of due process is the right to be tried by an
impartial judge. “All suitors, we must say, are entitled to nothing short of
the cold neutrality of an independent, wholly free, disinterested and
impartial tribunal” (Luque v. Kayanan, 29 SCRA 165, 178 ,October 6,
1995)

V.1.2 “All persons, except those charged with offenses punishable by reclusion
perpetua when evidence is strong, shall, before conviction, be bailable by
sufficient sureties, or be released on recognizance as may be provided by
law. The right to bail shall not be impaired even when the privilege of the

107
writ of habeas corpus is suspended. Excessive bail shall not be required”
(Section 13, Article III).

V.1.3 A judge who inherits a case from another judge may decide a case. “This is
rooted in practical considerations x x x . It is sufficient that in such
circumstances the judge, in deciding the case must base it completely on
the cold record before him, in the same manner as appellate courts when
they review the evidence of the case raised to them on appeal” (People v.
Narajos, 149 SCRA 99, 105 (1987).

V.2.1 Factors to consider in determining bail:

1) Nature of the offense;


2) Ability of the accused to post bail;
3) Penalty imposed by law;
4) Strength of the evidence;
5) Character and reputation of the accused;
6) Health of the accused;
7) Probability of the accused appearing for trial;
8) The forfeiture of bonds;
9) whether the accused is a fugitive from justice when arrested; and
10) whether the accused is under bond in other cases (Sunga v. Judge Salud,
109 SCRA 253 (November 19, 1981).

V.3 Presumption of innocence

(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 the
failure to appear is unjustifiable.”

V.3. 1 Ingredients of due process as applied in criminal proceedings:

1) the accused has been heard in a court of competent


jurisdiction;
2) the accused is proceeded against under the orderly processes
of law;
3) the accused has been given notice and the opportunity to be
heard; and
4) the judgment was within the authority of a constitutional law
(Mejia v. Pamaran, 160 SCRA 457)

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V.3.2 The basic rights of the accused are:

1) the right to be presumed innocent;


2) to be heard by himself and counsel;
3) to be informed of the nature and cause of the charge
4) to have a speedy, impartial and public trial;
5) the right of confrontation; and
6) the right to have compulsory process

V.3.3 There is denial of right to be informed of the nature and cause of the
charge where the statute is couched in such indefinite language that it
is not possible for men of ordinary intelligence to determine what acts
or omissions are punished and for which reason, the law is deemed
void. This is the void for vagueness rule/doctrine (Joseph Ejercito
Estrada v. Sandiganbayan G.R. No. 148560, November 19, 2001).

V.3.4 The right to be informed of the nature and cause of the accusation
against may not be waived, but the defense may waive the right to
enter a plea as the court would enter a plea of “not guilty”.

V.3.5 The right to have a speedy trial is violated only when the proceeding
is attended by vexatious, capricious and oppressive delays, or when
unjustified postponements of the trial are asked for and secured, or
when without cause or justifiable motive, a long period of time is
allowed to elapse without the party having his case tried (Tai Lim v.
CA, G.R. No. 131483, October 26, 1999).

V.3.6 Republic Act 8493 (The Speedy Trial Act) among others provide:

1) the arraignment of a accused shall be held within 30 days from filing


of the information, or from the date the accused has appeared
before the justice, judge or court in which the charge is pending,
whichever date last occurs.

2) where a plea of not guilty is entered, the accused shall have at least
15 days to prepare for trial.

3) trial shall commence within 30 days from arraignment as fixed by


the court.
4) in no case shall the entire trial period exceed 180 days from the first
day of trial, except as otherwise authorized by the Chief Justice of
the Supreme Court.

V.3.7 The right to have compulsory process for the attendance of witnesses.

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In order to establish the right to continuance by reason of the
absence of witnesses the accused must show:

1) that the witness is really material;


2) that he is not guilty of any neglect in previously obtaining
attendance of said witness;
3) that the witness will be available at the time desired; and
4) that no similar evidence could be obtained (U.S. v. Ramirez, 39
Phil 738 (1919).

W. Habeas Corpus

“The privilege of the writ of habeas corpus shall not be suspended


except in cases of invasion or rebellion when public safety requires it”
(Section 15, Article III).

W.1. Writ of habeas corpus is a writ issued by a court directed to a person


detaining another, commanding him to produce the body of the
prisoner at a designated time and place, with the day and cause of his
caption and detention, to do, to submit to and to receive whatever the
court or judge awarding the writ shall consider in his behalf.

W.2. The ultimate purpose of the writ is to relieve a person from unlawful
restraint.

W.3. If the detention is at its inception illegal, supervening events like the
issuance of a judicial process may prevent the discharge of the
detained person (Jackson v. Macalino, G.R. No. 139255, November 24,
2003).

W.4. Grounds for suspension of the privilege of habeas corpus; duration;


power of Congress; review power of the Supreme Court; application
of suspension; martial law and suspension of the privilege.

“In case of invasion or rebellion, when the public safety requires it,
the President may for a period not exceeding sixty (60) days, suspend the
privilege of the writ of habeas corpus x x x. Within forty-eight (48) hours
from x x x the suspension of the privilege of the writ of habeas corpus, the
President shall submit a report in person or in writing to the Congress. The
Congress, VOTING JOINTLY, by a vote of at least a majority of all its
members in regular or special session, may REVOKE such proclamation or
suspension, which revocation shall not be set aside by the President. Upon
the initiative of the President, the Congress may in the same manner,
EXTEND such proclamation or suspension for a period to be determined by
the Congress if the invasion or rebellion shall persist and public safety
requires it. The Supreme Court may review, in an appropriate proceeding

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filed by any citizen, the sufficiency of the factual basis for 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 thirty (30) days
from filing x x x. The suspension of the privilege of the writ shall apply 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,
any person thus arrested or detained shall be judicially charged within three
(3) days, otherwise he shall be released” (Section 18, Article VII).

W.4.1 Significant number of days in case of the suspension of the privilege of


habeas corpus:

1) President to suspend the privilege of habeas corpus – 60 days


any extension is upon the initiative of the President the period
of which is subject to determination by the Congress on
persistence of invasion or rebellion and public safety requires
it.
2) President to report in person or in writing to the Congress – 48
hours from the suspension of the privilege of the writ of habeas
corpus
3) The Supreme Court may review and render decision thereon
within 30 days from filing
4) Any person arrested should be judicially charged within 3
days if not, shall be released.

Note: To revoke either the proclamation of martial law or suspension of


the privilege of habeas corpus CONGRESS HAS TO MEET AND
VOTE JOINTLY BY A VOTE OF MAJORITY of all its
members in regular or special session Section 18, Art. VII).

W.4.2 Suspension of privilege of habeas corpus does not suspend the right
to bail ( Section 13, Art. III).

X. Writ of Amparo

The petition for a writ of amparo is a remedy available to any person


whose right to life, liberty and security is violated or threatened with violation
by an unlawful act or omission of a public official or employee, or of a private
individual or entity. The writ shall cover extralegal killings and enforced
disappearances or threats thereof (Section 1)

X.1 Who May File. – The petition may be filed by the aggrieved party or by any
qualified person or entity in the following order:

(a) Any member of the immediate family, namely: the spouse, children
and parents of the aggrieved party;

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(b) Any ascendant, descendant or collateral relative of the aggrieved party
within the fourth civil degree of consanguinity or affinity, in default
of those mentioned in the preceding paragraph; or

(c) Any concerned citizen, organization, association or institution, if there


is no known member of the immediate family or relative of the
aggrieved party.

The filing of a petition by the aggrieved party suspends the right of


all other authorized parties to file similar petitions. Likewise, the filing of
the petition by an authorized party on behalf of the aggrieved party
suspends the right of all others, observing the order established herein
(Section 2).

X.2 Where to File. – The petition may be filed on any day and at any time with
the Regional Trial Court of the place where the threat, act or omission
was committed or any of its elements occurred, or with the
Sandiganbayan, the Court of Appeals, the Supreme Court, or any justice
of such courts. The writ shall be enforceable anywhere in the Philippines.
When issued by a Regional Trial Court or any judge thereof, the writ
shall be returnable before such court or judge.
When issued by the Sandiganbayan or the Court of Appeals or any of
their justices, it may be returnable before such court or any justice
thereof, or to any Regional Trial Court of the place where the threat, act
or omission was committed or any of its elements occurred. When issued
by the Supreme Court or any of its justices, it may be returnable before
such Court or any justice thereof, or before the Sandiganbayan or the
Court of Appeals or any of their justices, or to any Regional Trial Court
of the place where the threat, act or omission was committed or any of its
elements occurred (Section 3).

Y. Self-Incrimination clause

“No person shall be compelled to be a witness against himself” (Section 17,


Article III).

Y.1 The guarantee was stated by the Court:

1) It was established on the ground of public policy and humanity: Of


policy, because, if the party were required to testify, it would place the
witness under the strongest temptation to commit perjury;

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2) Of humanity, because it would prevent the extorting of confession by
duress; and

3) To prohibit compulsory oral examination of prisoners before trial, or


upon trial for the purpose of extorting unwilling confessions or
declarations implicating them in the commission of a crime (U.S. v. Tan
Teng 23 Phil. 145, 152 (1912).

Y.2 The right against self-incrimination is available not only in criminal


prosecutions but also in other government proceedings, civil actions, and
administrative or legislative investigations. It may be claimed not only by
the accused but any witness to whom the incriminating question is
directed. It may be invoked only by “natural individuals”. Search and
seizure clause protects both natural and corporations but not the right
against self-incrimination for corporations. Thus, a corporation may be
compelled to submit to the visitorial powers of the state even if this results
in disclosure of criminal acts of the corporation.

Y.3 The rule is that this right may be invoked only when an incriminating
question is propounded upon an ordinary witness calling for an
incriminating answer as the ordinary witness has no technical way of
knowing in advance the nature and effect of the question asked of him. A
mere witness, who is not an accused in order to avail himself of his right,
must await the incriminating question.

Y.4 Under the right against self-incrimination, the accused may not be compelled
to take the witness stand” (U.S. v. Junio, 1 Phil. 50 (1910; Chavez v. Court
of Appeals, 24 SCRA 663).

Y.5 In Pascual, Jr., vs. Board of Medical Examiners, the respondent in an


administrative investigation for immorality and malpractice was extended a
similar right since the revocation of license as a medical practitioner is more
serious deprivation than forfeiture of property.

Y.6 This right does not prohibit a party litigant from using his adversary as a
witness when the case is not criminal case where the intended witness is the
defendant himself.

Y.7 The right includes a right to “refuse to testify to a fact which would be a
necessary link in a chain of evidence to prove the commission of a crime by
a witness” (Fernando v. Maglanoc, 95 Phil. 431 (1954)

Y.8 Prohibited by the constitutional guarantee is the use of physical or moral


compulsion to EXTORT COMMUNICATION from the witness, NOT AN
INCLUSION OF HIS BODY IN EVIDENCE, when it may be material like
substance emitting from the body of the defendant in a case of acts of

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lasciviousness (U.S. v. Tan Teng, 23 Phil 145 (1912); subjection to ultra-
violet examination (People v. Tranca, 235 SCRA 455 (1994); an order by the
judge for the witness to put on a pair of pants for size (People v. Otadora,
86 Phil. 244 (1950); morphine forced out of the mouth of the accused (U.S. v
Ong Siu Hong, 36 Phil. 735 (1917).

Y.9 The “kernel of the privilege” (scope) is the prohibition of ‘TESTIMONIAL


COMPULSION” (Villaflor v. Summers, 41 Phil. 62, 68 (1920) precisely, the
Court has compelled a woman charged of adultery to submit to the test of
pregnancy.

Y.10 In a preliminary investigation the guarantee should also be observed hence,


a witness may not be compelled to take a dictation with the end-in-view of
comparing his handwriting with alleged falsified document (Beltran v.
Samson 53 Phil. 570 (1921). The Court said:

“writing is something more than moving the body, or the hand, or the
fingers; writing is not a purely mechanical act because it requires the
application of the intelligence and attention... We say that, for the purpose
of the constitutional privilege, there is a similarity between one who is
compelled to produce a document, and one who is compelled to furnish a
specimen of his handwriting, for in both cases, the witness is required to
furnish evidence against himself. And we say that the present case is more
serious... because here the witness is compelled to write and create, by
means of an act of writing evidence against him.”

Y.11 The guarantee/immunity of the witness may be transactional immunity and


“use and fruit immunity” (Immunity statutes)

a) Transactional immunity is one granted by the Commission on Human


Rights to any person whose testimony or whose possession of
documents or other evidence is necessary or convenient to determine
the truth in any investigation conducted by CHR which makes the
witness immune from criminal prosecution for an offense to which
his compelled testimony relates (Art XIII, Section 18 (8).

b) Use and Fruit immunity is one which prohibits the use of the
witness’compelled testimony and of its fruits in any manner in
connection with the criminal prosecution of the witness (Galman v.
Pamaran, 138 SCRA 274)

Y.12 Waiver of right against self-incrimination

There are two ways of waiving this right :

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a) Directly done – an accused who takes the witness stand voluntarily
and offers testimony in his behalf may be cross-examined and asked
incriminating questions on any matter he testified to on direct
examination

b) Failure to invoke it.

Y.13 In Evangelista v. Jarencio, 68 SCRA 99 (November 29, 1975, the guarantee


was not applied to a fact-finding hearing prior to filing of charges. It was
not also applied to a trial for the annulment of a provincial budget
(Bagadiong v. Gonzales, 94 SCRA 906 (December 28, 1979)

Z. Involuntary Servitude and political prisoners

“No person shall be detained solely by reason of his political beliefs or


aspirations” (Section 18 (1), Art. III).

“No involuntary servitude in any form shall exist except as a


punishment for a crime whereof the party shall have been duly convicted” (
Section 18 (2), Art. III).

Z.1 “The penalty of prision mayor and a fine of not exceeding Ph 10,000 shall be
imposed upon anyone who shall purchase, sell, kidnap or detain human
being for the purpose of enslaving him” (Art. 272, RPC).

Z.2 Exceptions are:

a) punishment for a crime whereof the party shall have been convicted’
b) service in defense of the State (Section 4, Art II);
c) naval (merchant marine) enlistment
d) posse comitatus
e) return to work order in industries affected with public interest
f) patria potestas

AA. Proscribed punishments

“(1) Excessive fines shall not be imposed, nor cruel, degrading or inhuman
punishment inflicted. Neither shall death be imposed, unless for compelling
reasons involving heinous crimes, the Congress hereafter provides for it.
Any death penalty already imposed shall be reduced to reclusion perpetua.

(2) The employment of physical, psychological, or degrading punishment against


prisoner or detainee, or the use of substandard or inadequate penal
facilities under subhuman conditions shall be dealt with by law” (Section
19, Art. III).

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AA.1 To come in the ambit of the proscription the punishment must not only be
unusual but must also cruel. In Legarda v. Valdez (1 Phil 146 (1902), cruel
and unusual are inseparable fair; that the constitutional limit must be
reckoned on the basis of the nature and mode of punishment measured in
terms of physical pain (Bernas, The 1987 Constitution: A Commentary).

AA.2 The penalty must be flagrantly and plainly oppressive wholly


disproportionate to the nature of the offense as to shock the moral sense
of the community (People v. Estoista, 93 Phil. 647, 1953).

AA.3 The death penalty is not cruel or unusual punishment but an exercise of the
State’s power to secure society against the threatened and actual evil
(People v. Echegaray, 267 SCRA 682).

AB. Non-imprisonment for debts

“No person shall be imprisoned for debt or non-payment of a poll tax” (Section
20, Art. III).

AB.1 Poll-tax or a cedula tax is a capitation tax imposed on all persons of certain
age. It is now called community tax certificate which serves as a personal
identification instrument.

AB.2 While it is true that the debtor cannot be imprisoned for failure to pay his
debt, he can be validly punished in a criminal action when he contracted
his debt through fraud, as the responsibility arises not from the contract
of loan, but from the commission of the crime (Lozano v. Martinez, 146
SCRA 323).

AB.3 Batas Pambansa 115 (Trust Receipt Law) was declared constitutional seen
as an exercise of the police power of the State because the law seeks not to
enforce a loan but to punish dishonesty and abuse of confidence in the
handling of money or goods to the prejudice of another. Violation of BP
115 is estafa an office against public order and not an offense against
property (Tiomico v. CA G.R No 122539, March 4, 1999).

AC. Double jeopardy

“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” (Section 21, Art. III ).

AC.1 To raise the defense of double or second jeopardy, three (3) requisites
must be shown:

116
1) a first jeopardy must have attached prior to the second (fjaps)
2) the first jeopardy must have terminated (fjt)
3) the second jeopardy must be for the same offense as that of the first
(sjsoaf)

AC.2 For jeopardy to attach

Jeopardy attaches:

1) upon good indictment (gi) or valid complaint


2) filed before a competent court (cc)
3) after arraignment (aa)
4) after plea (ap)
5) defendant was previously acquitted or convicted, or the case
dismissed or otherwise terminated without his express consent.

AC.3 Double jeopardy does not attach in preliminary investigation (Icasiano v.


Sandiganbayan, 209 SCRA 377).

AC.4 No double jeopardy where the accused made plea-bargaining and


sentenced without the consent of the fiscal (People v. Villarama, 210
SCRA 246).

AC.5 Double jeopardy has not attached when a criminal case was mistakenly
dismissed by the court during a hearing that had been earlier cancelled
and removed from the calendar of the court for that day (Gorion v.
RTC of Cebu, 213 SCRA 138)

AC.6 When the dismissal is made at the instance of the accused, there is no
double jeopardy (People v. Quizada, 160 SCRA 516).

AC.7 Dismissal of criminal action on procedural grounds, not being an


acquittal, does not give rise to double jeopardy (Paulin v. Judge
Gimenez, 217 SCRA 386).

AC.8 The grant of a demurrer to evidence is equivalent to an acquittal, and


any further prosecution of the accused is double jeopardy ( Sanvicente
v. People, G.R. No. 132081, November 2, 2002).

AC.9 When the accused has joined the prosecution in moving for the dismissal
of the case and the same was granted, double jeopardy has attached
since the basis for the dismissal was the insufficiency of evidence of the
prosecution (People v. Verra, G.R. No. 134732, May 29, 2002).

AC.10 The dismissal of the action may either be a permanent dismissal or a


provisional dismissal.

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1) Permanent dismissal:
1) A permanent dismissal of a criminal case could be termination on
the merits resulting either the conviction or acquittal of the
accused.

2) There could be dismissal of the case on the ground of failure of the


prosecution to prosecute; and

3) There could be dismissal on the ground of unreasonable delay in


the proceedings in violation of the right of the accused to speedy
trial.

2) Provisional dismissal – is dismissal without prejudice to


reinstatement thereof before the order of dismissal becomes final,
or to the subsequent filing of new information within the period
allowed under the RPC or the RRC.

AC.11 Doctrine of supervening event. The accused may still be prosecuted for
another offense if a subsequent development changes the character of
the first indictment under which the accused may have already been
charged or convicted. Thus, under Section 7, rule 117, Rules of Court,
the conviction of the accused shall not be a bar to another prosecution
for an offense which necessarily includes the offense charged in the
original complaint or information when:

1) the graver offense developed due to supervening facts arising


from the same act or omission;

2) the facts constituting the graver offense arose or were discovered


only after the filing of the former complaint or information; or

3) the plea of guilty to a lesser offense was made without the consent
of the fiscal or the offended party (People v. Villarama, 210
SCRA 246).

AD. Ex post facto law and bill of attainder

“No ex post facto law or bill of attainder shall be enacted” (Section 22, Art. III).
Kinds of ex post facto law:

1) Every law that makes criminal an action done before the passage of
the law and which was innocent when done, and punishes such
action (“Nulla poena sine lege”, there is no crime when there is no
law punishing it). Art. 21 of RPC provides: “No crime of

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misdemeanour shall be punished by a penalty which was not
established by law prior to its commission.”

2) Every law that aggravates a crime, or makes it greater than it was


when committed;

3) Every law that changes punishment, and inflicts a greater punishment


than the law annexed to the crime when committed;

4) Every law that alters the legal rules of evidence, and receives less or
different testimony than the law required at the time of the
commission of the offense, in order to convict the defendant (Mekin
v. Wolfe, 2 Phil. 74, 77-8 (1903);

5) Every law which, assuming to regulate civil rights and remedies only
in effect imposes a penalty or the deprivation of a right for
something which when done was lawful (In re Kay Villegas Kami, 35
SCRA 429, 431 October 22, 1970).

6) Every law which deprives persons accused of a crime of some lawful


protection to which they have become entitled such as the protection
of a former conviction or acquittal, or of a proclamation of amnesty.

AD.1 Bill of attainder is a legislative act which inflicts punishment without


judicial trial (Cummings v. Missouri) If the penalty be less than death,
the act is termed bill of pains and penalties.

AE. Citizenship

“The following are citizens of the Philippines:

(1) Those who are citizens of the Philippines at the time of the adoption of
this Constitution;
(2) Those whose fathers or mothers are citizens of the Philippines;

(3) Those born before January 17, 1973, of Filipino mothers, who elect
Philippine citizenship upon reaching the age of majority; and

(4) Those who are naturalized in accordance with law.

AE.1 Citizenship is personal and more or less permanent membership in a


political community.

AE.2 Three distinct modes of acquiring citizenship:

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1) jus sanguinis – acquisition of citizenship on the basis of blood
relationship;

2) jus soli – acquisition of citizenship on the basis of place of birth;

3) naturalization – the legal act of adopting an alien and clothing him


with the privilege of a native born citizen.

AE.3 Basic Philippine law follows the rule of jus sanguinis.

AE.4 Justice Warren said: “Citizenship is man’s basic right for it is nothing
less than the right to have rights”. It is the capacity to enjoy political
rights, that is, to participate in government principally through the right
to vote, the right to hold public office, and the right to petition the
government for redress of grievances.

AE.5 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.

AE.6 If a natural-born Filipino citizen loses his citizenship by renunciation or


by any other mode recognized by law, would he still be considered
natural born if he subsequently reacquires citizenship? “Since
repatriation is the reacquisition of lost citizenship and not the
acquisition of a new citizenship, one who is repatriated regains the level
of his former citizenship. If he was previously a natural born Filipino
citizen, upon repatriation, he or she regains her/her natural born
citizenship” ( Bengson v. Cruz, G.R. No. 142840, May 7, 2001) See R.A.
965 and 2360 Reason: There are only two kinds of citizenship natural
and naturalized. Since, however one who is repatriated is not
naturalized he must be a natural-born citizen.

AE.7 Repatriation must be filed with the RTC which, after being satisfied that
the applicant has the right to be repatriated, may authorize the taking of
the oath of allegiance which shall be filed with the civil registrar. Mere
taking of oath without going through proof of qualification is not
enough.

“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 renounce it (Section 4, Art. IV)

“Dual allegiance of citizens is inimical to the national interest and shall


be dealt with by law” (Section 5, Art. IV).

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AE.8 Denaturalization

“Upon motion made in the proper proceedings by the


Solicitor- General or his representatives, or by the proper
Provincial Fiscal, the competent Judge may cancel that
naturalization certificate issued and its registration in the Civil
Registry.
AE.8.1 A decision in a naturalization case can never be res judicata as to
any of the reasons or matter which would support a judgment
cancelling the certificate of naturalization for illegal or
fraudulent procurement (Rep v. Co Bon Lee, L11499 April 29,
1961). Reason: naturalization case is not res judicata as it is not
an adversary proceeding.

AE.8.2 Should the ground for denaturalization affects the intrinsic


validity of the proceedings, the denaturalization shall divest the
wife and children of their derivative naturalization. If the ground
was personal to the denaturalized Filipino, his wife and children
would retain their Philippine citizenship.

AE.8.3 “Strictly speaking, the problem of dual or multiple nationalities or


citizenship can hardly arise because citizenship is a matter to be
exclusively determined by the country’s OWN LAW. In other
words, Philippine law are only allowed to determine who are
Filipino citizens and who are not” (Paras, Conflict of Laws” pp.
106-109, 1996 Edition). We may only say that the person is not a
Filipino.

“Any question as to whether a person possesses the nationality of


a particular state should be determined in accordance with the
law of the State” (Art. 2 Hague Convention on Conflict of
Nationality Laws (April 2, 1930).

AE.8.4 Approval of the administrative naturalization in favour of the


husband applicant would entitle the lawful wife and minor
children to file a petition for the cancellation of their alien
certificate of registration (ACR). If the applicant is the married
woman, the approval of her administrative naturalization would
not benefit the husband, however, the minor children may still ask
the Committee to cancel their ACR.

AE.8.5 R.A. 9225 entitled “An Act Making the Citizenship of Philippine
Citizens Who Acquire Foreign Citizenship Permanent; September
17, 2003. The law declared the policy of the State that all
Philippine citizens who become citizens of another country shall

121
be deemed not to have lost their Philippine citizenship under the
conditions of this Act.

Conditions:

1) Taking an oath of allegiance


2) Upon taking the oath their Philippine citizenship is retained;
3) Unmarried child, whether legitimate, illegitimate or adopted,
below 18 years of age of those who reacquire Philippine citizenship
upon the effectivity of the act are deemed citizens of the
Philippines (Section 4, R.A. 9225.

AE.8.6 Doctrine of implied election of Philippine citizenship – The period


to elect citizenship should be done within three (3) years from
reaching the age of majority except when there is justifiable
reason. In Cuenco v. Secretary of Justice, 5 SCRA 110, the
Supreme Court as justifiable reason for the delay was the thought
all along as being a Filipino. In Re: Mallari, 59 SCRA 45, the
doctrine of implied election was enunciated. The Supreme Court
affirmed the ruling of the HRET that the exercise of the right of
suffrage and participation in election exercises constituting as acts
of election of Philippine citizenship (Nachura, Outline Reviewer in
Political Law, 2005 Edition).

AE.8.7 “Dual allegiance of citizens is inimical to the national interest and


shall be dealt with by law” (Section 5, Art. IV)

AE.8.8. Section 40 R.A. 7160 (Local Government Code), dual citizenship is


one of the disqualifications for running for local elective office. The
Supreme Court in Mercado v. Manzano, 307 SCRA 630 declared
that: “dual citizenship” as a disqualification must refer to citizens
with “dual allegiance”. As a result, persons with mere dual
citizenship do not fall under the disqualification as reiterated in
Valles v. Comelec, G.R. No. 137000, August 9, 2000. NOW, in the
case of Sobejana-Condon vs. COMELEC the Supreme Court
ruled:

“Failure to renounce foreign citizenship in accordance with the exact


tenor of Section 5 (2) of RA 9225 renders a dual citizen ineligible to run for
and thus hold any elective public office.”

While the Court has previously declared that the filing by a person
with dual citizenship of a certificate of candidacy is already considered a
renunciation of foreign citizenship, such ruling was already adjudged
superseded with the enactment of RA 9255 on August 29, 2003 which

122
provides for the additional condition of a personal and sworn renunciation of
foreign citizenship.

“The foreign citizenship must be formally rejected through an


affidavit duly sworn before an officer authorized to administer oath.”

The Court said: “the fact that Condon won the elections cannot cure
the defect of her candidacy since “garnering the most number of votes does
not validate the election of a disqualified candidate because the application
of the constitutional and statutory provisions on disqualification is not a
matter of popularity.”

AF. Administrative Law

“Administrative law” embraces all the law that controls or is intended to


control, the administrative operations of government (1 American
Jurisprudence 2d 806). The chief concern of administrative law, which is the
protection of private rights, the subject of which is the nature and the mode of
exercise of administrative power and the system of reliefs against
administrative action ( 1 Am. Jr. 2d 807-809)

AF.1 Administrative agencies, boards and commissions are public offices.


“Public office refers to right, authority, and duty, created and conferred
by law, which, for a given period either fixed by law or enduring at the
pleasure of the appointing authority, an individual is invested with some
portion of sovereign function of government, to be exercised by that
individual for the benefit of the public” (Fernandez v. Sto. Tomas, 59
SCAD 488, 248 SCRA 194 (1995).

AF.2 Manner of creation

A public office is created by the Constitution or by law or by an officer or


tribunal to which the power to create the office has been delegated by the
legislature.

AF.2.1 Constitutional offices performing administrative functions:


1) President
2) The Constitutional Commissions
3) The Office of the Ombudsman
4) The NEDA
5) The Commission on Human Rights
6) The National Police Commission

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Other administrative agencies or bodies other than those
established by the Constitution are created by statutes or by officers
or tribunals authorized by Congress to do so expressly.

AF.2.2 kinds of agencies

1) Agencies wherein the government is offering some gratuity,


grant, or special privileges. Examples, Phil. Veterans
Administration, GSIS and SSS;.

2) Agencies to carry out governmental functions. Examples,


Bureau of Immigration, BIR, Central Bank, CSC, PNR, Civil
Aeronautics Administration

3) Agencies to regulate business with public interest. Examples,


Fiber Inspection Board, Philippine Patent Office, Office of the
Insurance Commissioner.

4) Agencies to regulate private business and individuals.


Examples, SEC, Board of Food Inspectors, MTRCB,
Professional Regulations Commission.

5) Agencies to adjust individual controversies. Like, NLRC,


Bureau of Labor Standards

6) Agencies to conduct investigations and gather evidence for


information, or prosecution of crimes. Examples, CHR, NBI
and Prosecutors’ Office.

AF.3 Powers of Administrative Agencies

1) Quasi-legislative (rule making) power

“Rule-making power of administrative agencies refers to the


power to issue rules and regulations which result from delegated
legislation in the administrative level. The grant of rule-making power
to administrative agencies is a relaxation of the principle of separation
of powers and is an exception to the non-delegation of legislative power”
(People v. Maceren, 79 SCRA 450 (1977)

a) Kinds of administrative rules and regulations

aa) Administrative rule that implements or interprets a law; fixes


and describes the procedures in, or practice requirements of an
agency, including its regulations.

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ab) Administrative rules and regulations which result from delegated
legislation in the administrative level

ac) Administrative rules and regulations promulgated in pursuance of


the authority conferred upon an agency to create new or
additional legal provisions that have the effect of law (People v.
Maceren)

b) Requisites for validity

“There are two accepted tests to determine whether or not


there is a valid delegation of legislative power, viz., the completeness
test and the sufficient test .

“Completeness test” – the law must be complete in all its terms


and conditions when it leaves the legislative such that when it reaches
the delegate the only thing he will do is enforce it.”

“Sufficient standard test” – there must be adequate guidelines


or limitations in the law to map out the boundaries of the delegate’s
authority and prevent the delegation from running riot” (Tatad v.
Secretary of the Department of Energy, 89 SCAD 335, 282 SCRA 330
(1997).

Both tests are intended to prevent total transference of


legislative authority to the delegate, who is not allowed to step into the
shoes of the legislature and exercise a power essentially legislative.

2) Quasi-judicial (adjudicatory) power

“Quasi-judicial power (function) a term applied to action,


discretion, of public administrative officers or bodies required to
investigate facts, or ascertain the existence of facts, hold hearings, and
draw conclusions from them, as a basis for their official action, and
to exercise discretion of a judicial nature” (Black’s Law Dictionary).

a) Administrative due process

The cardinal primary requirements of due process in


administrative proceedings are:
a1) the right to a hearing which includes the right to present
one’s case and submit evidence in support thereof;
a2) the tribunal must consider the evidence presented;
a3) the decision must have something to support itself;

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a4) the evidence must be substantial, and substantial evidence
means such evidence as a reasonable mind might accept as
adequate to support a conclusion;
a5) the decision must be based on the evidence presented at the
hearing, or at least contained in the record and disclosed to
the parties affected;
a6) the tribunal or body or any of its judges must act on its own
or his own independent consideration of the law and facts
of the controversy, and not simply accept the views of his
subordinates;
a7) the board or body should, in all controversial questions,
render its decision in such manner that the parties to the
proceedings can know the various issues involved, and the
reason for the decision rendered; and
a8) the officer or tribunal conducting the investigation must be
vested with competent jurisdiction and so constituted as to
afford a person charged administratively a reasonable
guarantee of honesty and impartiality” (Jose Rizal College
v. NLRC, 156 SCRA 27 (1987).

b) Administrative appeal and review

In the absence of any specific rules applicable to a particular


agency, the appeal, if allowed by law, should comply with Book VII of
the 1987 Administrative Code, which provides for the appeal
procedure. The pertinent provisions are:

“Section 19. Appeal. – Unless otherwise provided by law or


executive order, an appeal from a final decision of the agency may be
taken to the Department Head.

Section 20. Perfection of Administrative Appeal –

(1) Administrative appeals under this Chapter shall be perfected


within fifteen (15) days after receipt of a copy of the decision
complained of by the party adversely affected, by filing with
the agency which adjudicated the case a notice of appeal,
serving copies thereof upon the prevailing party and the
appellate agency, and paying the required fees.

(2) If a motion for reconsideration is denied, the movant shall have


the right to perfect his appeal during the remainder of the
period for appeal, reckoned from receipt of the resolution of
such denial. If the decision is reversed on reconsideration, the
aggrieved party shall have fifteen (15) days from receipt of the
resolution of reversal within which to perfect his appeal.

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(3) The agency shall, upon perfection of the appeal, transmit the
records of the case to the appellate agency.

Section 21. Effect of Appeal. The appeal shall stay the decision appealed
from unless otherwise provided by law, or the appellate agency
directs execution pending appeal, as it may deem just,
considering the nature and circumstances of the case.

Section 22. Action on Appeal – The appellate agency shall review the
records of the proceedings and may, on its own initiative or
upon motion, receive additional evidence.”

The perfection of appeal in the manner and within the period


prescribed by law is not only mandatory but jurisdictional. If
appeal is not perfected, the decision becomes final and
executory and can no longer be reviewed by a higher
administrative agency or by the courts (Estoesta v. CA, 179
SCRA 203).

c) Administrative review

The power of review is exercised to determine whether it is


necessary to correct the acts of a subordinate and to see to it that he
perform his duties in accordance with law (Cansino v. CA, 204
SCRA 449 (1951)

d) Administrative res judicata

It refers to the rule that a final judgment or decree on the


merits by a court of competent jurisdiction is conclusive of the
rights of the parties or privies in all later suits on points and matters
determined in the former suit (Gutierrez v. CA 193 SCRA 437).

The elements of res judicata are:

1) the presence of a final former judgment;


2) the former judgment is by a court of competent jurisdiction;
3) the former judgment is a judgment on the merits;
4) there is, as between the first and the second actions, identity of
parties, of subject matter and of cause of action.

This doctrine applies to final decisions of public, executive or


administrative officers and boards acting within their jurisdiction

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and exercising their quasi-judicial powers. Such decisions are
conclusive upon the rights of the affected parties as though the same
had been rendered by a court of competent jurisdiction (Public v.
Neri, 213 SCRA 812 (1992).

e) Fact-finding, Investigative, Licensing and Rate-fixing Powers

“Investigations are useful for all administrative functions, not


only for rule-making, adjudication, and licensing, but also for
prosecuting, for supervising and directing, for determining general
policy, for recommending legislation and for purposes no more
specific than illuminating obscure areas to find out what if anything
should be done. An agency may conduct general inquiries into evils
calling for correction, and to report findings to appropriate bodies
and make recommendations for actions. Where it is empowered to
issue subpoena to compel witnesses to give testimonies or to produce
documents in connection with said investigations, the subpoena meets
the requirements for enforcement if the inquiry is :

1) within the authority of the agency;


2) the demand is not too indefinite; and
3) the information is reasonably necessary ( Evangelista v. Jarencio,
68 SCRA 99 (1975).

e.1) The power to investigate may not, however be construed to


include what is not necessarily implied therefrom. Precisely, the
power granted to the Commission on Human Rights by the
Constitution to investigate all forms of human rights violation
involving civil and political rights includes ONLY power to
receive evidence and make findings of fact as regards the claims.
It does not include the power to adjudicate, nor decide cases as
courts or quasi-judicial bodies to do (Carino v. Commission on
Human Rights, 204 SCRA 483 (1991). In like manner, the NBI is
basically investigatory and informational in nature. (R.A. 157).

e.2) The legislature usually delegates its rate-fixing power to


administrative agencies, for the latter to fix rates which public
utility companies may charge the public, either:
1) by issuing rules and regulations in the exercise of their quasi-
legislative power, or
2) by issuing order affecting a specified person in the exercise of
its quasi-judicial power.

If it were a legislative function, the grant of prior notice


and hearing to the affected parties is not a requirement of due
process,

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As regards rates prescribed by an administrative
agency in the exercise of its quasi-judicial function, prior
notice and hearing are essential to the validity of the rates
(Phil. Communications Satellite Corp. Alcuaz, 180 SCRA 218
(1989).

AG. Judicial Recourse and Review

AG.1 Doctrine of Primary Administrative Jurisdiction

The doctrine of primary jurisdiction requires that a plaintiff


should first seek relief in an administrative proceeding before he
seeks a remedy in court, even though the matter is properly presented
to the court, which is within its jurisdiction. “Where the claim is
originally cognizable in the court and its enforcement requires
resolution of issues which, under a regulatory scheme, has been
placed within the competence of an administrative agency, the
judicial process is SUSPENDED pending referral of such claim to the
administrative agency for its views. The court cannot or will not
determine a controversy involving a question within the jurisdiction
of an administrative tribunal:

1) where the question demands administrative determination


requiring special knowledge, experience, and services of
administrative tribunal;
2) where the question requires determination of technical and
intricate issues of fact; and
3) where uniformity of ruling is essential to comply with the
purposes of the regulatory statute administered (2 Am Jur. 2d,
688-689 cited in Philippine Administrative Law by Agpalo, 1999).

AG.2 Doctrine of Exhaustion of Administrative Remedies

“As a general rule, recourse through court action cannot


prosper until all the remedies have been exhausted in the
administrative level. When an adequate remedy has been provided
within the executive department of the government, but nevertheless,
a litigant fails or refuses to avail himself of the same, the court will
decline to interfere (Rosales v. CA, 165 SCRA 344 (1988). The party
aggrieved by a decision of an administrative official should first apply
for review of such decision by higher administrative authority before
seeking judicial relief; otherwise, his court suit may be dismissed for
prematurity or lack of cause of action (De los Santos v. Limbaga, 4
SCRA 224 (1962) (Cited in Administrative Law by Agpalo 1999)

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AG.2.1 The doctrine of exhaustion of administrative remedies in the
following:
1) when there is a violation of due process;
2) when the issue involved is purely a legal question;
3) when the administrative action is patently illegal
amounting to lack or excess of jurisdiction;
4) when there is estoppels on the part of the administrative
agency concerned;
5) when there is irreparable injury;
6) when the respondent is a department secretary whose acts
as an alter ego of the President bears the implied and
assumed approval of the latter;
7) when to require exhaustion of administrative remedies
would be unreasonable;
8) when it would amount to a nullification of a claim;
9) when the subject matter is a private land in land cases or
proceedings;
10) when the rule does not provide a plain speedy and
adequate remedy, and
11) there are circumstances indicating the urgency of judicial
intervention.

Note: The rule requiring exhaustion of administrative remedies


applies only where the agency concerned exercises judicial or
quasi-judicial functions. It does not apply in the exercise of
quasi-legislative function (Association of Phil. Coconut
Desicator v. Philippine Coconut Authority, 63 SCRA (1975).

AG.3 Doctrine of finality of administrative action

The right to appeal is merely a statutory right and may be


exercised only in the manner and in accordance with the provision of
law. Failure to do so will cause loss of the right to appeal and render
the decision final. For administrative proceedings must end
sometime, just as public policy demands that finality be written on
judicial controversies (Tiatco v. CSC, 216 SCRA 749 (1992)

AH. Law on Public Officers

AH.1 Public Office a public trust

“The basic idea of government of the Republic of the


Philippines is that of a representative government, the officers being

130
mere agents and not rulers of the people, one where no man or set of
men has a proprietary or contractual right to an office, but where
every officer accepts office pursuant to the provisions of law and
holds the office as a trust of the people whom he represents” (Cornejo
v. Gabriel, 41 Phil. 188 (1920) ; cited in The 1987 Philippine
Constitution: A Commentary)

AH.2 Public Office is the right or authority or duty, created 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 power of
government to be exercised by him for the benefit of the public
(Fernandez v. Sto. Tomas, G.R. 116418, March 7, 1995, cited in Outline
Reviewer in Political Law by Antonio B. Nachura, 2005 Edition).

AH.3 A public office refers either to either of two concepts:

a) a functional unit of government; or


b) a position

AH.4 The broadest classification of public officers is into civil and military.
The public officers or employees of the government are either national or
local, elective or appointive, whose offices or positions are either created
by the Constitution or by statutes.

AH.5 The bulk of the personnel in bureaucracy is composed of the civil service
officers and employees. They are all appointive officers or employees.
They are either presidential or non-presidential. The Civil Service Law
classifies employment in Government into career and non-career service.

The career service is characterized by:


1) entrance based on merit and fitness to be determined as far as
practicable by competitive examination, or based on highly technical
qualifications;
2) opportunities for advancement to a higher career positions; and
3) security of tenure.

The non-career service is characterized by:


a) entrance on bases other than those of the usual test of merit and
fitness;
b) tenure which is limited to a period specified by law, or which is
coterminous with that of the appointing authority or subject t his
pleasure or which is limited to the duration of a particular project for
which purpose, employment was made.

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AH.6 Eligibility and qualification requirements

AH.6.1 The question of when eligibility of persons seeking public office


must exist to qualify him for the position is a mater of legislative
intent. The Constitution or the statute usually fixes the time
when the qualifications must be possesses by the appointee or
elective candidate for office, either expressly or impliedly.

AH 6.2 Appointive officers must have the qualifications and none of the
disqualifications as of the date of their appointment.

AH. 6.3 Lost of any of the qualifications during the incumbency will be a
ground for termination (Frivaldo v. Comelec, 174 SCRA 245;
Labo v. Comelec, 176 SCRA 1).

AJ. Election Law

Aj.1 Suffrage

“Suffrage may be exercised by:

1) all citizens of the Philippines not otherwise disqualified by law,


2) who are at least eighteen (18) years of age,
3) 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 (6)
months immediately preceding the election”( Section 1, Art. V).

Aj.1.2 Suffrage is a right and a duty.

Aj.1.3 Disqualified to vote are the following:

a) Any person who has been sentenced by final judgment to suffer


imprisonment of not less than one year, such disability not
having been removed by plenary pardon: Provided, however,
that any person disqualified to vote under this paragraph shall
AUTOMATICALLY reacquire the right to vote upon
expiration of five years after service of sentence;

b) Any person who has been adjudged by final judgment by


competent court or tribunal of having committed any crime
involving disloyalty to the duly constituted government, such as
rebellion, sedition, violation of the anti-subversion and firearms
laws, or any crime against national security, unless restored to
his full civil and political rights in accordance with law:

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provided, that he shall regain to vote automatically upon
expiration of five years after service of sentence.

c) Insane or incompetent persons as declared by competent


authority.

AJ. 2 Registration of voters

In order that a qualified elector may vote in any election, plebiscite


or referendum, he must be registered in the permanent list of voters for the
city or municipality in which he resides (Section 115, PD 1986).

AJ.2.1 Registration does not make a person a qualified voter. It is simply


a step towards voting. It does not confer the right to vote; it is but
a condition precedent to the exercise of the right. In short,
registration is a regulation, not a qualification (Yra v. Abano, Phil.
380).

AJ.2.2 The municipal and metropolitan trial courts (M, MTC) shall have
original and exclusive jurisdiction over all matters of inclusion and
exclusion of voters from the list in their respective municipalities
and cities. Decisions of the (M, MTC) may be appealed directly by
the aggrieved party to the proper RTC within five (5) days from
receipt of notice thereof, otherwise said decision of the M, MTC
shall become final and executory. The RTC shall decide the appeal
within 10 days from the time the appeal was received and its
decision shall be immediately final and executory. No motion for
reconsideration shall be entertained by the courts (Section 138, PD
1986).

AJ.3 Political party means an organized group of persons pursuing the same
ideology, political ideas or platforms of government and includes its
branches and divisions.

AJ.3.1 To acquire juridical personality, qualify it for subsequent


accreditation, and to entitle it to the rights and privileges, a
political party shall first be duly registered with the
Commission. Any registered political party that, singly or in
coalition with others, fails to obtain at least 10% of the votes
cast in the constituency in within it nominated and supported a
candidate or candidates in the election next following
registration shall, after notice and hearing, be deemed to have
FORFEITED such status as a registered political party (Section
60, Art. VIII R.A. 7166)

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AJ.3.2 Registration of Political Party. “Any organized group of persons
seeking registration as a national or regional political party may
file with the Commission a verified petition attaching thereto its
constitution and by-laws, platform or program of government
and such other relevant information as may be required by the
Commission. The Commission shall, after due notice and
hearing, resolve the petition within ten (10) days from the date it
is submitted for decision. No religious sect shall be registered as
a political paty and no political party which seeks to achieve it
goal through violence shall be entitled to accreditation.

AJ.4 Candidacy. “No person shall be eligible for any elective public office unless
he files a sworn certificate of candidacy within the period fixed by law.
A person who has filed a certificate of candidacy may, prior to election,
withdraw the same by submitting to the office concerned a written
declaration underoath.

No person shall be eligible for more than one office to be filled in the same
election, and if he files his certificate of candidacy for more than one
office, he shall not be eligible for any of them. However, before the
expiration of the period for the filing of cc, the person who has filed more
than one certificate of candidacy may declare under oath the office for
which he desires to be eligible and cancel the certificate of candidacy for
the other office or offices.

AJ.4.1 Substitution of candidates

If after the last day for the filing of certificate of candidacy,


as 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
certificate of candidacy to replace the candidate who died,
withdrew or was disqualified. The substitute candidate
nominated by the political party concerned may file his certificate
of candidacy for the office affected in accordance with the
preceding sections NOT LATER THAN MID-DAY of the election.
If the day before the election and mid-day of election day, said
certificate may be filed with any board of election inspectors in the
political subdivision where he is a candidate, or, in the case of
candidates to be voted for by the entire electorate of the country,
with the Commission.

AJ.5 Quo Warranto

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It is a proceeding to determine the right to use or exercise an office
and to oust the holder from its enjoyment, if his claim is not well founded or
if he has forfeited his right to enjoy the privilege. It is a special civil action
commenced within one (1) year fro the date the petitioner is ousted from his
position, by a verified complaint filed in court against a person who usurps,
intrudes into, or unlawfully holds or exercises a public office or position, or
who does or suffers an act which, by the provision of law, constitutes a
ground for forfeiture of his office, in accordance with Rule 66 of the 1997
Rules of Civil Procedure of the Rules of Court (Tarrosa v. Singson, 51
SCAD 406, G.R. 111243, May 25, 1994).

AJ.6 The Lone Candidate Law

Republic Act No. 8295 enacted on June 6, 1997. Section 2 thereof provides:

“Upon the expiration of the deadline for the filing of the certificate of
candidacy in a special election called to fill a vacancy in an elective position
other than for President and Vice-President, when there is only one (1)
qualified candidate for such position, the lone candidate shall be proclaimed
elected to the position by proper proclaiming body of the Commission on
Election without holding the special election upon certification by the
Commission on Elections that he is the only candidate for the office and is
thereby deemed elected.”

AJ.7 May a disqualified candidate and whose certificate of candidacy was denied
due course and/or cancelled by the COMELEC be validly substituted?

“Even on the most basic and fundamental principles, it is readily


understood that 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 des not exist or who never was. The Court has no other choice but to
rule that in all instances enumerated in Section 77 of the Omnibus Election
Code, the existence of a valid certificate of candidacy seasonably filed is a
requisite sine qua non.

“All told, 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 certificate of candidacy,
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 Code (Miranda v. Abaya, G.R.
136351, July 28, 1999, en banc).

AJ.8 Distinguish Election Protest from Petition for Quo Warranto

“In Samad v. COMELEC, we explained that a petition for quo


warranto under the Omnibus Election Code raises in issue the disloyalty or

135
ineligibility of the winning candidate. It (quo warranto) is a proceeding to
unseat the respondent from office but not necessarily to install the petitioner
in his place. An election protest is a contest between the defeated and
winning candidates on the ground of frauds or irregularities in the casting
and counting of the ballots, or in the preparation of the returns. It (election
protest) raises the questions of who actually obtained the plurality of the
legal votes and therefore is entitled to hold office (Dumayas, Jr., v.
COMELEC, G.R. No. 141952-53, April 20, 2001, en banc).

AJ.9 “While the right to a public office is personal and exclusive to the public
officer, an election protest is not purely personal and exclusive to the
protestant or to the protestee such that after the death of either would oust
the court of all authority to continue the protest proceedings. An election
content, after all, involves not merely conflicting private aspirations but is
imbued with paramount public interests. The death of the protestant neither
constitutes a ground for the dismissal of the contest or nor ousts the trial
court of its jurisdiction to decide the election contents” (De Castro v.
COMELEC, 267 SCRA 806, Feb. 7, 1987).

AK. National Economy and Patrimony

“The goals of the national economy are:

a) a more equitable distribution of opportunities, income, and wealth;


b) a sustained increase in the amount of goods and services produced by the
nation for the benefit of the people; and
c) an expanding productivity as the key to raising the quality of life for all,
especially the underprivileged” (Section 1 Art. XII).

AK.1. To attain the goals of the national economy,

“The State shall promote industrialization and full


employment based on sound agricultural development and
agrarian reform, through industries that make full and efficient
use of human and natural resources, and wbich are competitive in
both domestic and foreign markets. However, the State shall
protect Filipino enterprises against unfair (anything harmful to the
Philippine enterprises) foreign competition and trade practices”
(par.2 Section 1, Art. XII).

“In the pursuit of these goals, all sectors of the economy and
all regions of the country shall be given optimum opportunity to
develop, private enterprises, including corporations, cooperatives,

136
and similar collective organizations, shall be encouraged to
broaden the base of their ownership” (Section 1, Art. XII).

AK.2 Nationalist and Citizenship Requirement Provisions

AK.2.1 What are owned by the State?

“All lands of the public domain, waters, minerals, coal,


petroleum, and other mineral oils, all forces of potential energy,
fisheries, forests or timber, wildlife, flora and fauna, and other
natural resources are owned by the State.

AK.2.2 Among the natural resources, what may be alienated?

“With the exception of AGRICULTURAL LANDS, all other


natural resources shall not be alienated”.

AK.2.3 “The exploration, development, and utilization (edu) of natural


resources shall be under the FULL CONTROL AND
SUPERVISION of the State.

AK.2.4 Two ways of managing the (edu) of natural resources:

“The State may :

a) directly undertake such activities of (edu)


b) enter into co-production, joint venture, or production sharing
agreements with Filipino citizens or corporations at least 60%
or whose capital is owned by such citizens.

AK.2.5 Periods of edu agreements

a) “Such agreements may be for a period not exceeding 25 years,


renewable for not more than 25 years and under such terms and
conditions as may be provided by law.

b) In cases of water rights for irrigation, water supply, fisheries, or


industrial uses – BENEFICIAL USE may be the measure and
limit of the grant

c) Water power – 25 year limit applies.

AK. 3 Classification of lands of the public domain

“Lands of the public domain are classified into agricultural, forest or


timber, mineral lands, and national parks.

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AK.3.1 Which land classification may further be classified by law?

“Agricultural lands of the public domain may be further classified


by law according to uses to which they may be devoted.

AK.3.2 Alienable lands of the public domain shall be limited to agricultural


lands.

AK.3.3 In what manner may private corporations hold lands of the public
domain?

“Private corporations or associations may not hold such lands


of the public domain except by lease, for a period not exceeding 25
years, renewable for not more than 25 years and not to exceed 1,000
hectares in area.

AK.3.4 May citizens of the Philippines lease lands of the public domain?

“Citizens of the Philippines may lease not more than 500 hectares.

AK.3.5 May citizens of the Philippines acquire lands of the public domain?

“Citizens of the Philippines may lease not more than 500 hectares, Or
ACQUIRE not more than 12 hectares thereof by purchase,
homestead, or grant.”

AK.3.6 What are the considerations and conditions Congress shall take into
account in the determination of the size of lands of the public
domain that may be acquired, develop or lease?

a) requirements of conservation and land reform


b) ecology
c) development (Section 3 par.2, Art. XII)

AK.3.7 The acquisition of alienable public lands is open only to qualified


natural persons. One purpose of the constitutional prohibition is to
equitably diffuse land-ownership or to encourage owner cultivatorship
and economic family size farms and thereby prevent the recurrence of
huge land holdings by corporations or private persons (Ayog v. Judge
Cusi 118 SCRA492). It is also aimed against undue exploitation of
our public lands and natural resources by large corporation
(Republic v. Judge Villanueva and Iglesia ni Kristo (114 SCRA 875,
898, June 29, 1982).

AK.3.8 May qualified corporations acquire private land?

138
While corporations cannot acquire land of the public domain,
they can acquire private land. “Alienable land held by possessor,
personally or through his predecessor-in-interest, openly,
continuously and exclusively for the prescribed statutory period (30
years under the Public Land Act), as amended is converted to
private property by the mere lapse or completion of said period ipsa
jure” (Director of Lands v. Intermediate Appellate Court 146 SCRA
509 (December 29, 1986).

AK.3.9 “Save in cases of hereditary succession, no private lands shall be


transferred or conveyed except to individuals, corporations, or
associations qualified to acquire or hold lands of the public domain.”

Note: “We are of the opinion that the constitutional provision...does not
extend to testamentary succession for otherwise the provision will be
naught and meaningless (111 SCRA 704)

AK.3.10 Who may acquire private land?

a) Filipino citizens;
b) Filipino corporations under Section 2
c) Aliens, but only by hereditary succession;
d) Natural born citizen of the Philippines who has lost citizenship

AK.3.11 “Notwithstanding the provision of Section 7 of this Article, a natural-


born citizen of the Philippines who has lost his citizenship may be a
transferee of private lands, subject to limitations provided by law”
(Section 8, Art. XII).

AK.3.12 BP 185 Natural born citizen who has lost his citizenship may be the
transferee of private land up to 1,000 square meters. It was
amended by R.A. 8179 to apply to commercial/industrial not
exceeding 5,000 square meters if urban land and 3,000 if rural land.
AM. Franchises, authority and certificates for public utilities

“No franchise, certificate, or any other form of authorization for the


operation of a public utility shall be granted except to citizens of the
Philippines or to corporations or associations organized under the laws of
the Philippines at least sixty per centum of whose capital is owned by such
citizens, nor shall such franchise, certificate or authorization be exclusive in
character or for a longer period than fifty years. Neither shall any such
franchise or right be granted except upon the condition that it shall be
subject to amendment, alteration, or repeal by the Congress when the
common good so requires. The State shall encourage equity participation in
public utilities by the general public. The participation of foreign investors in

139
the governing body of any public utility enterprises shall be limited to their
proportionate share in its capital, and ALL the executive and managing
officers of such corporation or association must be citizens of the
Philippines” (Section 11, Art. XII).

“The sustained development of a reservoir of national talents


consisting of Filipino scientist, entrepreneurs, professionals, managers, high-
level technical manpower and skilled workers and craftsmen in all fields
shall be promoted by the State. The State shall encourage appropriate
technology and regulate its transfer for the national benefit.

“The practice of all professions in the Philippines shall be limited to


Filipino citizens save in cases prescribed by law” (Section 14, Art. XII).

“In times of national emergency, when the public interest so requires,


the State may, during the emergency and under reasonable terms prescribed
by it, temporarily take over or direct the operation of any privately owned
public utility or business affected with public interest” (Section 17, Art. XII).

“The State may, in the interest of national welfare or defense,


establish and operate vital industries and, upon payment of just
compensation, transfer to public ownership utilities and other private
enterprises to be operated by the government” (Section 18, Art. XII)

The State shall regulate or prohibit monopolies when the public


interest so requires. No combinations in restraint of trade or unfair
competition shall be allowed” (Section 19, Art. XII).

The Constitution does not absolutely prohibit monopolies. Thus, an


award for stevedoring and arrastre services to only one corporation is valid
(PPA v. Mendoza, 138 SCRA 496). (Cited in Outline Reviewer in Political
Law, Nachura, 2005 edition).

AL. Social Justice and Human Rights

“The Congress shall give highest priority to the enactment of


measures:

a) that protect and enhance the right of all the people to human dignity,
b) reduce social, economic, and political inequalities, and
c) removal cultural inequities by equitably diffusing wealth and political
power for the common good” (Section 1, Art XIII).

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(Route to social justice) “To this end, the State shall regulate the
acquisition, ownership, use and disposition of property and its
increments.

AL.1 What does promotion of social justice include? “The promotion of social
justice shall include the commitment to create economic opportunities
based on freedom of initiative and self reliance.

AL.1.1 Social justice is the equalization of economic, political, and social


opportunities with special emphasis on the duty of the state to
tilt the balance of social forces by favouring the disadvantage.
In the 1935 Constitution, it is justice for the common tao. In the
1973 Constitution, “those who have less in life must have more
in law.”

AL.1.2 Human right is the supreme, inherent, and inalienable right to


life, to dignity, and to self development. It is concerned with
issues in both areas of civil and political rights, and economic,
social and cultural rights founded on internationally accepted
human rights obligations to which the Philippine Government is
a state party.

AM. Commission on Human Rights

“The Commission shall be composed of a chairman and four (4)


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.

AM.1 The principal function of the Commission is investigatory in “all


forms of human right violations involving civil and political rights”
whether committed by public officers or by civilian or rebels. It has
no adjudicatory power; no power to issue restraining order or writ
of injunction. In Simon v. Commissioner on Human Rights, 229
SCRA 117, the Supreme Court ruled that eviction of squatters is not
a violation of human rights.

AM.2 What is transactional immunity statute?

It pertains to item (8) of Section 18 Commission on Human


Rights which provides: “Grant immunity from prosecution to any
person whose testimony or whose possession of documents or other

141
evidence is necessary or convenient to determine the truth in any
investigation conducted by it or under its authority.”

AM.3 Commission on Human Rights’ power to cite contempt. “Adopt


operational guidelines and rules or procedure, and cite for contempt
for violations thereof in accordance with the rules of court” (Section
18 (2), Art. XIII).

AM.4 “Urban or rural poor dwellers shall not be evicted nor their dwellings
demolished, except in accordance with law and in a just and humane
manner.

“No resettlement of urban or rural dwellers shall be


undertaken without adequate consultation with them and the
communities where they are to be relocated” (Section 10, Art. XIII).

AN. Education, science technology, arts, culture and sports

AN.1 “Section 3. Art. XIV.


“(1) All educational institutions shall include the study of the
Constitution as part of the curricula.

(2) They 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.

(3) 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 in which the children or wards belong, without
additional cost to the government.”

AN.2 “All revenues and assets of non-stock, non-profit educational institutions


used actually, directly, and exclusively (ade) for educational purposes
shall be exempt from taxes and duties. Upon the dissolution or cessation
of the corporate existence of such institutions, their assets shall be
disposed of in the manner provided by law” (Art. XIV, Section 4 (3).

AN.3 “Academic freedom shall be enjoyed in all institutions of higher learning


(Section 5 (2), Art. XIV)

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Academic freedom from the perspective of a faculty member
meant the right of a faculty member to pursue his studies in his
particular specialty and thereafter make known or publish the result of
his endeavours without fear that retribution would be visited on him in
the event that his conclusions are found distasteful or objectionable to the
powers that be, whether in the political, economic or academic
establishments,” reinforce a professor’s security of tenure” (Montemayor
v. Araneta University Foundation, 77 SCRA 321 May 31, 1977; Araneta
University v. Argel, G.R. 48076, March 13, 1980.

Academic freedom from the perspective of the learning


institution – the right of the institution to decide on academic grounds:

1) what should be taught;


2) how it should be taught;
3) who may teach;
4) who may be taught.

Academic freedom as basis, the right of a school to dismiss a


student for academic deficiency was upheld (Tangonan v. Pano, 137
SCRA 245 (June 27, 1987); the right of the school to dismiss a student for
disciplinary reasons was also upheld (Ateneo de Manila v. Court of
Appeals, 145 SCRA 100 (October 16, l986).

AO. Local Government

AO. 1 Constitutional bases:

a) “The territorial and political subdivisions of the Republic of the


Philippines are the provinces, cities, municipalities, and barangays.
There shall be autonomous regions in Muslim Mindanao and the
Cordilleras as hereinafter provided” (Section 1, Art. X).

b) “The State shall ensure the autonomy of local governments.” (Section


25, Art. II

c) The territorial and political subdivisions shall enjoy local autonomy”


(Section 2, Art. X).

AO.2 In a unitary system of government, local government can only be an


infra-sovereign subdivision of one sovereign nation. It cannot be an
imperium in imperio (Basco v. Pagcor, 197 SCRA 52).

AO.3 “Autonomy is either:

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a) decentralization of administration; or
b) decentralization of power.

Decentralization of administration – this means


decentralization of administrative powers to broaden the base of
government power and in the process make local governments more
responsive and accountable, and ensure their fullest development as
self-reliant communities and make them effective partners in the
national development and social progress

Decentralization of power – is the abdication of political power


for the local government to charts its destiny and shape its future with
minimum intervention fro the central government.

AO.4. “Even as we recognize that the Constitution guarantees autonomy to


local government units, the exercise of local autonomy remains subject
to the power and control by Congress, and the power of general
supervision by the President (Judge Dadole v. Commission on Audit,
G.R. No. 125350, December 3, 2002).

AO.5 The verifiable indicators for the creation, division, merger, or abolition
of local government units are: land area, income and population
(keyword : LIP)

AO.6 Municipal corporations perform dual functions, one governmental and


another corporate. The exercise of corporate activities makes the
municipality a municipal corporation and on the same level as any
private corporation while, when exercising governmental functions,
municipal corporations become agents of the national government (
Read Section 15, R.A. 7160)

AO.7 Eminent Domain – “A local government unit may, through its chief
executive and acting pursuant to an ordinance, exercise the power of
eminent domain for public use, or purpose, or welfare for the benefit
of the poor and landless, upon payment of just compensation,
pursuant to the provision of the Constitution and pertinent laws:
Provided, however, that the power of eminent domain may not be
exercised UNLESS A VALID AND DEFINITE OFFER has been made
to the owner, and such offer was not accepted: Provided , further, that
the local government unit may immediately take possession of the
property upon making a deposit with the proper court of at least
fifteen percent (15%) of the fair market value of the property based on
the current tax declaration of the property expropriated: Provided,
finally, that the amount to be paid for the expropriated property shall

144
be determined by the proper court, based on the fair market value at
the time of the taking of the property” (Section19, R.A. 7160)

Note: In the exercise of eminent domain by the national government there is no


prerequisite of a valid and definite offer which distinguishes eminent
domain in the local government.

AO.7.1 A mere resolution would not suffice in the exercise of eminent


domain by the local government. There must be an ordinance
(Municipality of Paranaque v. V.M. Realty Corporation, 292
SCRA 678).

AO.8 Reclassification of lands – “Where approval by a national agency is


required for reclassification, such approval shall not be unreasonably
withheld. Failure to act on a proper and complete application for
reclassification within three (3) months from receipt of the same shall
be deemed approval thereof” (Sectioon20 (d)).

AO.8.1 The issue of whether or not the power of the local government
units to reclassify lands is subject to the approval of the
DAR is no longer novel, this having been decided by this
Court in the case of Province of Camarines Sur v. CA, 222
SCRA 173 wherein we held that local government units
need not obtain the approval of the DAR to convert or
reclassify lands from agricultural to non-agricultural use
(Forthich v. Corona, 298 SCRA 678, November 17, 1998).

AO.8.2 “A camino vicinal is a municipal road. It is also property for


public use.
The Municipality of Liloan had the unassailable authority to:
a) prepare and adopt a land use map,
b) promulgate a zoning ordinance which may consider,
among other things, the municipal roads to be constructed,
maintained, improved or repaired and
c) close any municipal road (Pilapil v. CA, 216 SCRA 33,
November 26 1992) See also Section 21, R.A. 7160 Closure
and opening of roads)

AO.9 The holding of the fiesta was an exercise of proprietary function. It is


an act for the specific benefit of the community and not for the general
welfare of the public performed in pursuance of a policy of the state.
Hence, the municipality is liable for damages. However, the councillors
should be absolved from liability. The liability of public officers for
damages under Art 27 of NCC applies to NONFEASANCE and not to
negligence or misfeasance. The councillors are similar to the board of
directors of a corporation, since the celebration of the town fiesta is

145
not a governmental function. As such, they are not liable for damages
for negligence of the agent and employees of the municipality unless
there is a showing of bad faith or gross negligence on their part”(Torio
v. Fontanilla, 85 SCRA 599, October 23, 1978).

AO.10 Power of Local Chief Executives over the Units of the Philippine
National Police Section 28 R.A. 7160 in relation to R.A. 6975 – “The
authority of the mayor is very limited. In reality, he has no power of
appointment; he has only the limited power of selecting one from
among the list of eligibles to be named the Chief of Police. Actually,
the power to appoint the Chief of Police of Cebu City is vested in the
Regional Director. Much less may the mayor require the Regional
Director, Regional Police Command, to include the name of any
officer, no matter how qualified, in the list of five to be submitted to
the mayor. The purpose is to enhance police professionalism and to
isolate the police service from political domination”

AO.11 Disqualifications from running for any elective local position, Section
40 (e) Fugitives from justice in criminal or non-political 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.”

AO.12 Dual citizenship – a disqualification

Section 40 R.A. 7160 (Local Government Code), dual


citizenship is one of the disqualifications for running for local elective
office. The Supreme Court in Mercado v. Manzano, 307 SCRA 630
declared that: “dual citizenship” as a disqualification must refer to
citizens with “dual allegiance”. As a result, persons with mere dual
citizenship do not fall under the disqualification as reiterated in Valles
v. Comelec, G.R. No. 137000, August 9, 2000.

NOW, in the case of Sobejana-Condon vs. COMELEC the Supreme


Court ruled:

“Failure to renounce foreign citizenship in accordance with


the exact tenor of Section 5 (2) of RA 9225 renders a dual citizen
ineligible to run for and thus hold any elective public office.”

While the Court has previously declared that the filing by a


person with dual citizenship of a certificate of candidacy is already
considered a renunciation of foreign citizenship, such ruling was
already adjudged superseded with the enactment of RA 9255 on

146
August 29, 2003 which provides for the additional condition of a
personal and sworn renunciation of foreign citizenship.

“The foreign citizenship must be formally rejected through an


affidavit duly sworn before an officer authorized to administer oath.”

The Court said: “the fact that Condon won the elections
cannot cure the defect of her candidacy since “garnering the most
number of votes does not validate the election of a disqualified
candidate because the application of the constitutional and statutory
provisions on disqualification is not a matter of popularity.”

AO.13 The vacancy in the position of vice-mayor due to the ineligibility of the
winning candidate should be filled up in accordance with Section 44 of
the LGC which provides that the highest ranking sanggunian member
shall become vice-mayor.

AO.14. Where vacancy is caused by a Sanggunian Bayan member not belonging


to a political party, the Governor, upon recommendation by the
Sanggunian Bayan, appoints the replacement (Farinas v. Barba, 256
SCRA 396, April 19 1996).

AO.15 A vice-governor who is concurrently an Acting Governor is actually a


quasi-Governor. This means, that for purposes of exercising his
legislative prerogatives and powers, he is deemed as a non-member of
the SP for the time being. The continuity of the Acting Governor’s
(Vice-governor) powers as presiding officer of the SP is suspended so
long as he is in such capacity. Under Section 49 (b) “in the event of the
inability of the regular presiding officer to preside at the sanggunian
session, the members present and constituting a quorum shall elect
from among themselves a temporary presiding officer” (Gamboa v.
Aguirre, 310 SCRA 867, July 20 1999).

AP. Public International Law

AP. 1 Concepts

1. Obligations erga omnes

In international law it has been used as a legal term describing


obligations owed by states towards the community of states as a whole.
An erga omnes obligation exists because of the universal and
undeniable interest in the perpetuation of critical rights (and the
prevention of their breach). Consequently, any state has the right to
complain of a breach. Examples of erga omnes norms include piracy,
genocide, slaver, torture, and racial discrimination.

147
The concept was recognized in the International Court of
Justice's decision in the Barcelona Traction case [(Belgium v Spain)
(Second Phase) ICJ Rep 1970 3 at paragraph 33]:

"… an essential distinction should be drawn between the


obligations of a State towards the international community as a
whole, and those arising vis-à-vis another State in the field of
diplomatic protection. By their very nature, the former are the
concern of all States. In view of the importance of the rights involved,
all States can be held to have a legal interest in their protection; they
are obligations erga omnes. [at 34] Such obligations derive, for
example, in contemporary international law, from the outlawing of
acts of aggression, and of genocide, as also from the principles and
rules concerning the basic rights of the human person, including
protection from slavery and racial discrimination. Some of the
corresponding rights of protection have entered into the body of
general international law . . . others are conferred by international
instruments of a universal or quasi-universal character( Wikipedia).

2. Jus cogens

Jus cogens are a body of peremptory principles of


international law that are universal and non-derogable. In effect, jus
cogens (Latin for "compelling law) represent fundamental norms of
international law that apply to all states. Jus cogens is the highest
branch of law because it supersedes all other types of law. In fact, if a
treaty is drafted in violation of jus cogens than the treaty is rendered
null and void.

The following are generally considered jus cogens norms (this


is not necessarily an exhaustive list): the prohibition on the aggressive
use of force, war crimes, genocide, crimes against humanity, slavery,
racial discrimination, piracy, and torture. Since the Nuremberg
Tribunal it has also been accepted that jus cogens is applicable to
individual, criminal liability. The concept of jus cogens is closely
related to universal jurisdiction as all crimes that are jus cogens also
enjoy universal jurisdiction. For example, the International Criminal
Tribunal for the Former Yugoslavia (ICTY) determined in
Prosecutor v. Furundžija that there is a jus cogens for the prohibition
against torture. It also stated that universal jurisdiction applied to
torture as "the torturer has become, like the pirate and the slave
trader before him, hostis humani generis, an enemy of all mankind."

3. Concept of aeguo et bono

148
Ex aequo et bono (Latin for "according to the right and good"
or "from equity and conscience") is a phrase derived from Latin that
is used as a legal term of art. In the context of arbitration it refers to
the power of the arbitrators to dispense with consideration of the law
and consider solely what they consider to be fair and equitable in the
case at hand.

Article 38(2) of the Statute of the International Court of


Justice (ICJ) provides that the court may decide cases ex aequo et
bono, but only where the parties agree thereto. In 1984 the ICJ
decided a case using "equitable criteria" in creating a boundary in
the Gulf of Maine for Canada and the US.

Article 33 of the United Nations Commission on International Trade


Law's Arbitration Rules (1976) provides that the arbitrators shall
consider only the applicable law, unless the arbitral agreement allows
the arbitrators to consider ex aequo et bono, or amiable compositeur,
instead. This rule is also expressed in many national and subnational
arbitration laws, for example s. 22 of the Commercial Arbitration Act
1984 (NSW) (Wikipedia)

AP. B International and national law

International law is where many countries agree on a law, while


national law applies only to the country that made them.

AP.B.1 In case of conflict between international law and national


(municipal) law, which should prevail?

1. When our Court shall decide:

a) When the conflict is with the Philippine Constitution, our Court


shall rule in favour of our Constitution because of Section 5
(2)(a) Art. VIII.

b) When the conflict is with our statute the principle of lex


posterior derogat priori (that which comes last in time) will
usually be upheld by the municipal/national tribunal.
However, there were cases that our Court still decided in
favour of the local situation like exercise of police power.

2. When International tribunal will decide:

149
The international tribunal shall sustain international law at it
provides the standard in the determination of the legality of State’s
conduct.

AP. C. Sources of international law

1. Primary (direct) sources are:

a) treaties or conventions
b) customs
c) general principles of law (estoppel, pacta sunt servanda, consent, res
judicata)

2. Secondary (indirect) sources are:

a) decisions of courts, and


b) writings of publicists

AP.D Subjects of International law

1. States
2. International organizations
3. Individuals

AP.E Diplomatic and consular law

The right of legation or diplomatic intercourse is one of the most


effective ways of facilitating and promoting mutual interests. Consensual as
it is, the maintenance of diplomatic relations is not a demandable right on
the part of either the sending or receiving state.

AP.E.1 Agents of Diplomatic intercourse

a) Head of State
b) The Foreign Office

a) The Head of State is the embodiment of or at least represents the


sovereignty of his state and is entitled to certain immunities and
honours befitting his status. He is entitled to special protection
for his physical safety and the preservation of his honour and
reputation. His quarters, archives, property and means of
transportation are inviolate under the principle of
Exterritoriality. He is exempt/immune from criminal and civil
jurisdiction, except when he himself is the plaintiff and is not

150
subject to tax or exchange or currency restrictions. Ceremonial
amenities should also accord him unless he travels in cognito.

b) The Foreign Office

The day-to-day foreign affairs are entrusted to a Foreign office


headed by a Secretary or Minister, who may make binding
declarations on behalf of the government (Legal Status of
Eastern Greenland, April 5, 1933)

AP. E.2 The heads of diplomatic missions are classified as follows:

(1) Ambassadors or nuncios accredited to heads of state.


(2) Envoys, ministers or internuncios accredited to heads of
state’
(3) Charge’s d’ affaires accredited to ministers for foreign affairs

Included in the diplomatic mission are:


(1) diplomatic staff
(2) administrative and technical staff
(3) service staff

AP.E.3 The Diplomatic Corps is a body consisting of the different


diplomatic representatives who have been accredited to the same
local or receiving state, headed by a doyen de corps who, by
tradition, is the oldest member with the highest rank or, in
Catholic countries, the Papal Nuncio. It does not possess any legal
power or attributes.

AP.E.4 Agreation – informal inquiries addressed to the receiving state


regarding a proposed diplomatic representative of the sending
state. Appointment of the representative is made only when the
receiving state manifests its agreement or consent. This is done to
avoid Art 4 of the Diplomatic Convention which provides that
“the receiving state is not obliged to give reasons for a refusal of
agreement.

AP.E.5 The Diplomatic Convention provides: “The person of a diplomatic


agent shall be inviolable. He shall not be liable to any form of
arrest or detention. The receiving state shall treat him with due
respect and shall take appropriate steps to prevent any attack on
his person, freedom or dignity” (Art. 29).

Republic Act No. 75 provides: “any person who assaults, strikes,


wounds, imprisons or in any other manner offers violence to the

151
person of an ambassador or public minister, in violation of the law
of nations, with imprisonment for not more than three (3) years
and a fine not exceeding two hundred pesos in addition to the
penalties prescribed by the RPC. (note : the attack is to the person
not honour or reputation.

AP.E.6 Article 31 of the Diplomatic Convention provides: “A diplomatic


agent shall enjoy immunity from the criminal jurisdiction of the
receiving state. He shall enjoy immunity from its civil and
administrative jurisdiction EXCEPT in case of:
(a) a real action relating to private immovable property situated in
the territory of the receiving state, unless he holds it in behalf
of the sending state for the purposes of the mission;

(b) an action relating to succession in which the diplomatic agent is


involved as executor, administrator, heir or legatee as a
private person and not on behalf of the sending state;
(c) an action relating to any professional or commercial activity
exercised by the diplomatic agent in the receiving state outside
his office ial functions”

“Any writ of process sued out or prosecuted by any


person in any court of the Republic of the Philippines, or by
any judge or justice, whereby the person of any ambassador or
public minister of any foreign state, authorized and received as
such by the President, or any domestic servant of any such
ambassador or minister is arrested or imprisoned, or his goods
or chattels are distrained, seized or attached, shall be deemed
void, and every person by whom the same is obtained and
prosecuted, whether as party or as attorney, and every officer
concerned in executing it, shall, upon conviction, be punished
by imprisonment for the more than three (3) years and a fine
not exceeding two hundred pesos in the discretion of the
court” (R.A. 75)

Note: The diplomatic retinue consists of the diplomatic staff,


administrative and technical staff enjoys the same rights as the
diplomatic staff EXCEPT that immunity from civil and
administrative jurisdiction shall not extend to unofficial acts.

The private servants of the official members of the


mission, if they are not nationals or permanent residents of the
receiving state, ENJOY ONLY exemption from dues and taxes
on their income from the mission and such other immunities
and privileges as may be granted by the receiving state (Art.
37, 38, Diplomatic Convention).

152
AP.7 Diplomatic asylum has not received universal recognition except when it is
extended for humanitarian reasons, as when the fugitive seeking
sanctuary is in immediate danger of his life or safety. Asylum may also be
granted on the strength of usage , particularly in favour of political
refugees, or of treaty stipulations.

AQ. Treaties

AQ.1 Treaty-making process:


a) Negotiation
b) Signature
c) Ratification
d) Exchange

AQ.2 Under the Philippine Constitution, “the power to ratify treaties is vested
in the President and not, as commonly believed, in the legislature. The
role of the Senate is confined simply to giving or withholding its consent
( a “veto power” as Corwin calls it) to the ratification . For that matter,
it is competent for the President to refuse to submit a treaty to the
Senate or, having secured its consent for its ratification, to refuse to
ratify it. But as a rule, he cannot ratify a treaty without the concurrence
of two-thirds of all members of the senate” International Law. Cruz
1998 Edition)

AQ.3 Observance of treaty (pacta sunt servanda) “international agreements


must be performed in good faith.” This principle has exception under
the doctrine of “rebus sic stantibus” – would justify non-performance of
a treaty obligation if the conditions with relation to which the parties
contracted have changed so materially and so unexpectedly as to create
a situation in which exaction of performance would be unreasonable
(Cruz, International Law, 1998 Edition).

Note: a) “rebus sic stantibus applies only to treaties of indefinite duration;


b) the vital change must have been unforeseen or unforeseeable and
should not have been caused by the party invoking it;
c) reasonable time to invoke
d) cannot operate retroactively upon the provisions of the treaty already
executed prior to the change of circumstances.

AR. Nationality and statelessness

AR.1 Nationality is the legal tie that binds an individual to his state, from
which he can claim protection and whose laws he is bound to obey. It is
a membership in a political community with corresponding rights and
obligations.

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AR.2 Doctrine of indelible allegiance – an individual may be compelled to
retain his original nationality notwithstanding that he has already
renounced or forfeited it under the laws of the second state whose
nationality he has acquired.

AS. Treatment of Aliens

AS.1 It is the cardinal rule of international law that the foreigner must accept
the institutions of the local state as he finds them. “When in Rome, do as
the Romans do”

AS. 2 The state is not an insurer of the life or property of the alien when he is
within the territory.

AS.3 “The doctrine of state responsibility” – a state may be held responsible


for:

a) an international delinquency;
b) directly or indirectly imputable to it;
c) which causes injury to the national of other state.

Note: Liability shall attach to the state where its treatment of the alien falls
below the international standard of justice or where it is remiss in
according him the protection or redress that is warranted by the
circumstances. This often applies to tortuous liability instead of
contractual liability because states are unwilling to act as collection
agencies for their nationals. To avoid such alien’s state intervention,
the local states incorporates the CALVO CLAUSE whereby the alien
waives or restricts his right to appeal to his own state over his claim
arising from the contracts thereby agreeing to the remedies available
under the laws of the local state. However, despite of such agreement
the alien’s state is not deprived to exercise its prerogative to apply
international remedies.

AS.4 Deportation is the removal of an alien out of the country as his presence
is deemed inconsistent with the public welfare, and without any
punishment being imposed or contemplated, either under the laws of
the country out of which he is sent, or under those of the country to
which he is taken. Exclusion is the denial of entry to an alien.

AS.5 Extradition is the surrender of a person by one state to another state


where he is wanted for prosecution or, if already convicted, for
punishment.

AS.5.1 Fundamental principles of extradition

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Basis of Extradition : Treaty, goodwill or gesture of comity.

1) It is based on the consent of the state of asylum as expressed in a


treaty or manifested as an act of goodwill;

2) A fugitive, who is extradited, may be tried only for the crime specified
in the request for extradition and included in the list of offenses in
the extradition treaty. This is known as “principle of specialty”.
Therefore, if the extradite is charged with any other offense
committed before his escape, the state of refuge, NOT THE
ACCUSED, has a right to object. Without objection, the state
prosecution may proceed.

3) Who may be extradited? Any person whether a national of the


requesting state, of the state of refuge or of another state.

4) Generally not covered by extradition are religious and political


offenders.
Note: Attentant clause – the murder of the head of state or any member
of his family is not regarded as a political offense for purposes
of extradition.

5) The act for which the extradition is sought must be punishable in both
the requesting and requested states. This is known as “rule of double
criminality.

AS.5.2 The procedure for extradition are:

1) Request for the surrender of the fugitive supported with his


identity and the crime he is alleged to have committed or
convicted is presented through diplomatic channels;

2) The state of refuge will conduct a judicial investigation to


determine:
a) if the crime is covered by the extradition treaty and b) if
there is prima facie case against the fugitive to issue a
warrant of surrender to effect delivery of said fugitive.

AS.5.3 Extradition proceedings are sui generis and are not criminal
proceedings to make operational all the rights of an accused as
guaranteed in the Bill of rights (Secretary of Justice v. Lantion,
G.R. 139465 October 17, 2000).

Note: Extradition treaties with Indonesia (1976), Australia (1988),


Canada (1989), Switzerland (1989) and Micronesia (1990)

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are “non-list” extradition treaties and would need no
application of the “double criminality principle”.

AS.5.4 Letters Rogatory. - A formal written request made by one judicial


body to another court in a different, independent jurisdiction
that a witness who resides in that jurisdiction be examined
through the use of interrogatories accompanying the request

AS. 6 Deportation vs. Extradition

Deportation is a unilateral act of the local state; extradition is


upon request of the other state; deportation is based on causes occurred
in the local state; extradition is based on offenses committed in the state
of origin; deportation is expulsion of an alien, extradition is for the
return of the fugitive to the state of origin.

AT. International Human Rights Law

International human rights law refers to the body of international law


designed to promote and protect human rights at the international, regional
and domestic levels. As a form of international law, international human
rights law is primarily made up of treaties, agreements between states,
intended to have binding legal effect between the parties that have agreed to
them; and customary international laws, rules of law derived from the
consistent conduct of states acting out of the belief that the law required
them to act that way. Other international human rights instruments while
not legally binding contribute to the implementation, understanding and
development of international human rights law and have been recognized as
a source of political obligations (Wikipedia)

AT.1 Universal Declaration of Human Rights

PREAMBLE

Whereas recognition of the inherent dignity and of the equal and inalienable rights
of all members of the human family is the foundation of freedom, justice and peace
in the world,

Whereas disregard and contempt for human rights have resulted in barbarous acts
which have outraged the conscience of mankind, and the advent of a world in which
human beings shall enjoy freedom of speech and belief and freedom from fear and
want has been proclaimed as the highest aspiration of the common people,

Whereas it is essential, if man is not to be compelled to have recourse, as a last


resort, to rebellion against tyranny and oppression, that human rights should be
protected by the rule of law,

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Whereas it is essential to promote the development of friendly relations between
nations,

Whereas the peoples of the United Nations have in the Charter reaffirmed their
faith in fundamental human rights, in the dignity and worth of the human person
and in the equal rights of men and women and have determined to promote social
progress and better standards of life in larger freedom,

Whereas Member States have pledged themselves to achieve, in co-operation with


the United Nations, the promotion of universal respect for and observance of
human rights and fundamental freedoms,

Whereas a common understanding of these rights and freedoms is of the greatest


importance for the full realization of this pledge,

Now, Therefore THE GENERAL ASSEMBLY proclaims THIS UNIVERSAL


DECLARATION OF HUMAN RIGHTS as a common standard of achievement for
all peoples and all nations, to the end that every individual and every organ of
society, keeping this Declaration constantly in mind, shall strive by teaching and
education to promote respect for these rights and freedoms and by progressive
measures, national and international, to secure their universal and effective
recognition and observance, both among the peoples of Member States themselves
and among the peoples of territories under their jurisdiction.

Article 1.

 All human beings are born free and equal in dignity and
rights.They are endowed with reason and conscience and should
act towards one another in a spirit of brotherhood.

 other limitation of sovereignty.

Article 3.

 Everyone has the right to life, liberty and security of person.

Article 4.

 No one shall be held in slavery or servitude; slavery and the slave


trade shall be prohibited in all their forms. Article 5.

 No one shall be subjected to torture or to cruel, inhuman or


degrading treatment or punishment.

Article 5.

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 Everyone has the right to recognition everywhere as a person
before the law.

Article 6.

 All are equal before the law and are entitled without any
discrimination to equal protection of the law. All are entitled to
equal protection against any discrimination in violation of this
Declaration and against any incitement to such discrimination.

Article 7.

 Everyone has the right to an effective remedy by the competent


national tribunals for acts violating the fundamental rights granted
him by the constitution or by law.

Article 8.

 No one shall be subjected to arbitrary arrest, detention or exile.

Article 10.

 Everyone is entitled in full equality to a fair and public hearing by


an independent and impartial tribunal, in the determination of his
rights and obligations and of any criminal charge against him.

Article 11.

 (1) Everyone charged with a penal offence has the right to be


presumed innocent until proved guilty according to law in a public
trial at which he has had all the guarantees necessary for his
defence.
 (2) No one shall be held guilty of any penal offence on account of
any act or omission which did not constitute a penal offence, under
national or international law, at the time when it was committed.
Nor shall a heavier penalty be imposed than the one that was
applicable at the time the penal offence was committed.

Article 12.

 No one shall be subjected to arbitrary interference with his privacy,


family, home or correspondence, nor to attacks upon his honour
and reputation. Everyone has the right to the protection of the law
against such interference or attacks.

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Article 13.

 (1) Everyone has the right to freedom of movement and residence


within the borders of each state.
 (2) Everyone has the right to leave any country, including his own,
and to return to his country

Article 14.

 (1) Everyone has the right to seek and to enjoy in other countries
asylum from persecution.
 (2) This right may not be invoked in the case of prosecutions
genuinely arising from non-political crimes or from acts contrary
to the purposes and principles of the United Nations.

Article 15.

 (1) Everyone has the right to a nationality.


 (2) No one shall be arbitrarily deprived of his nationality nor
denied the right to change his nationality.

Article 16.

 Men and women of full age, without any limitation due to race,
nationality or religion, have the right to marry and to found a
family. They are entitled to equal rights as to marriage, during
marriage and at its dissolution.

 (2) Marriage shall be entered into only with the free and full
consent of the intending spouses.
 (3) The family is the natural and fundamental group unit of society
and is entitled to protection by society and the State.

Article 17.

 (1) Everyone has the right to own property alone as well as in


association with others.
 (2) No one shall be arbitrarily deprived of his property.

Article 18.

 Everyone has the right to freedom of thought, conscience and


religion; this right includes freedom to change his religion or belief,
and freedom, either alone or in community with others and in

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public or private, to manifest his religion or belief in teaching,
practice, worship and observance.

Article 19.

 Everyone has the right to freedom of opinion and expression; this


right includes freedom to hold opinions without interference and to
seek, receive and impart information and ideas through any media
and regardless of frontiers.

Article 20.

 (1) Everyone has the right to freedom of peaceful assembly and


association.
 (2) No one may be compelled to belong to an association.

Article 21.

 (1) Everyone has the right to take part in the government of his
country, directly or through freely chosen representatives.
 (2) Everyone has the right of equal access to public service in his
country.
 (3) The will of the people shall be the basis of the authority of
government; this will shall be expressed in periodic and genuine
elections which shall be by universal and equal suffrage and shall
be held by secret vote or by equivalent free voting procedures.

Article 22.

 Everyone, as a member of society, has the right to social security


and is entitled to realization, through national effort and
international co-operation and in accordance with the organization
and resources of each State, of the economic, social and cultural
rights indispensable for his dignity and the free development of his
personality.

Article 23.

 (1) Everyone has the right to work, to free choice of employment, to


just and favourable conditions of work and to protection against
unemployment.
 (2) Everyone, without any discrimination, has the right to equal
pay for equal work.
 (3) Everyone who works has the right to just and favourable
remuneration ensuring for himself and his family an existence

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worthy of human dignity, and supplemented, if necessary, by other
means of social protection.
 (4) Everyone has the right to form and to join trade unions for the
protection of his interests.

Article 24.

 Everyone has the right to rest and leisure, including reasonable


limitation of working hours and periodic holidays with pay.

Article 25.

 (1) Everyone has the right to a standard of living adequate for the
health and well-being of himself and of his family, including food,
clothing, housing and medical care and necessary social services,
and the right to security in the event of unemployment, sickness,
disability, widowhood, old age or other lack of livelihood in
circumstances beyond his control.
 (2) Motherhood and childhood are entitled to special care and
assistance. All children, whether born in or out of wedlock, shall
enjoy the same social protection.

Article 26.

 (1) Everyone has the right to education. Education shall be free, at


least in the elementary and fundamental stages. Elementary
education shall be compulsory. Technical and professional
education shall be made generally available and higher education
shall be equally accessible to all on the basis of merit.
 (2) Education shall be directed to the full development of the human
personality and to the strengthening of respect for human rights and
fundamental freedoms. It shall promote understanding, tolerance
and friendship among all nations, racial or religious groups, and
shall further the activities of the United Nations for the maintenance
of peace.
 (3) Parents have a prior right to choose the kind of education that
shall be given to their children.

Article 27.

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 (1) Everyone has the right freely to participate in the cultural life of
the community, to enjoy the arts and to share in scientific
advancement and its benefits.
 (2) Everyone has the right to the protection of the moral and
material interests resulting from any scientific, literary or artistic
production of which he is the author.

Article 28.

 Everyone is entitled to a social and international order in which the


rights and freedoms set forth in this Declaration can be fully
realized.

Article 29.

 (1) Everyone has duties to the community in which alone the free
and full development of his personality is possible.
 (2) In the exercise of his rights and freedoms, everyone shall be
subject only to such limitations as are determined by law solely for
the purpose of securing due recognition and respect for the rights
and freedoms of others and of meeting the just requirements of
morality, public order and the general welfare in a democratic
society.
 (3) These rights and freedoms may in no case be exercised contrary
to the purposes and principles of the United Nations.

Article 30.

 Nothing in this Declaration may be interpreted as implying for any


State, group or person any right to engage in any activity or to
perform any act aimed at the destruction of any of the rights and
freedoms set forth herein.

AT.2 International Covenant on Civil and Political Rights (ICCPR)

The International Covenant on Civil and Political Rights


(ICCPR) is a multilateral treaty adopted by the United Nations
General Assembly on December 16, 1966, and in force from March
23, 1976. It commits its parties to respect the civil and political rights
of individuals, including the right to life, freedom of religion, of
speech, freedom of assembly, electoral rights and rights to due
process and a fair trial. As of March 2012, the Covenant had 74
signatories and 167 parties.

The ICCPR is part of the International Bill of Human Right,


along with the International Covenant on Economic, Social and

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Cultural Rights(ICESCR) and the Universal Declaration of Human
Rights (UDHR)

The ICCPR is monitored by the Human Rights Committee (a


separate body to the Human Rights Council), which reviews regular
reports of States parties on how the rights are being implemented.
States must report initially one year after acceding to the Covenant
and then whenever the Committee requests (usually every four
years). The Committee normally meets in Geneva and normally holds
three sessions per year.

AT.3 International Covenant on Economic, Social, and Cultural Right

The International Covenant on Economic, Social and Cultural


Rights (ICESCR) is a multilateral treaty adopted by the United
Nations General Assembly on 16 December 1966, and in force from 3
January 1976. It commits its parties to work toward the granting of
economic, social, and cultural rights (ESCR) to individuals, including
labour rights and the right to health, the right to education, and the
right to an adequate standard of living. As of July 2011, the covenant
had 160 parties. A further seven countries, including the United
States of America, had signed but not yet ratified the Covenant.

The ICESCRT is part of the International Bill of Human


Rights, along with the Universal DeInternational humanitarian law
(IHL), claration of Human Rights (UDHR) and the International
Covenant on Civil and Political Rights (ICCPR), including the latter's
first and second Optional Protocols.

AU. International Humanitarian Law and neutrality

or the law of armed conflict, is the law that regulates the conduct of
armed conflicts (jus in bello). It comprises "the Geneva Conventions
and the Hague Conventions, as well as subsequent treaties, case law,
and customary international law.] It defines the conduct and
responsibilities of belligerent nations, neutral nations and individuals
engaged in warfare, in relation to each other and to protected persons,
usually meaning civilians.

Serious violations of international humanitarian law are called war


crimes. International humanitarian law, jus in bello regulates the
conduct of forces when engaged in war or armed conflict. It is distinct
from jus ad bellum which regulates the conduct of engaging in war or
armed conflict and includes crimes against peace and of war of
aggression. Together the jus in bello and jus ad bellum comprise the

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two strands laws of war governing all aspects of international armed
conflicts.

The law is mandatory for nations bound by the appropriate treaties.


There are also other customary unwritten rules of war, many of
which were explored at the Nuremberg War Trials. By extension,
they also define both the permissive rights of these powers as well as
prohibitions on their conduct when dealing with irregular forces and
non-signatories.

International humanitarian law operates on a strict division between


rules applicable in international armed conflict and those relevant to
armed conflicts not of an international nature. This dichotomy is
widely criticized.(Wikipedia)

AU.1 Internal or non-international armed conflict

International humanitarian law distinguishes two types of armed


conflicts, namely:

 international armed conflicts, opposing two or more States, and

 non-international armed conflicts, between governmental forces


and non-governmental armed groups, or between such groups
only. IHL treaty law also establishes a distinction between non-
international armed conflicts in the meaning of common Article 3
of the Geneva Conventions of 1949 and non-international armed
conflicts falling within the definition provided in Art. 1 of
Additional Protocol II.

AU.2 War of National liberation


In Marxist terminology, wars of national liberation or
national liberation revolutions are conflicts fought by oppressed
nationalities against imperial powers to establish separate sovereign
states for the subjugated nationality. From a Western point of view,
these same wars are called insurgencies or rebellions, or more
positively, wars of independence.

AU.3 Fundamental principles of humanitarian law

International humanitarian law aims to limit the suffering caused by


war by forcing parties engaged in a conflict to:

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● engage in limited methods and means of warfare;
● differentiate between civilian population and combatants, and
work to spare civilian population and property;
● abstain from harming or killing an adversary who surrenders or
who can no longer take part in the fighting;
● abstain from physically or mentally torturing or performing cruel
punishments on adversaries.

AU.4 Treatment of civilians

Before 1949 the Geneva Conventions protected wounded, sick,


shipwrecked and captured combatants. The “civilians’ convention”
recognized the changing nature of warfare and established legal
protection for any person not belonging to armed forces or armed
groups. The protection also included civilian property. Such
protection was later reinforced with the adoption of the Additional
Protocols to the Geneva Convention in 1977.
IHL provides that civilians under the power of enemy forces must be
treated humanely in all circumstances, without any adverse
distinction. They must be protected against all forms of violence and
degrading treatment, including murder and torture. Moreover, in
case of prosecution, they are entitled to a fair trial affording all
essential judicial guarantees.
The protection of civilians extends to those trying to help
them, in particular medical units and humanitarian or relief bodies
providing essentials such as food, clothing and medical supplies. The
warring parties are required to allow access to such organizations.
The Fourth Geneva Convention and Additional Protocol I specifically
require belligerents to facilitate the work of the ICRC.
While IHL protects all civilians without discrimination,
certain groups are singled out for special mention. Women and
children, the aged and sick are highly vulnerable during armed
conflict. So too are those who flee their homes and become internally
displaced or refugees. IHL prohibits forced displacements by
intimidation, violence or starvation.

AU.5 Prisoners of War

“Adopted on 12 August 1949 by the Diplomatic Conference for the


Establishment of International Conventions for the Protection of
Victims of War, held in Geneva from 21 April to 12 August 1949
Entry into force: 21 October 1950

Part I
GENERAL PROVISIONS

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Article 1

The High Contracting Parties undertake to respect and to ensure respect for
the present Convention in all circumstances.

Article 2

In addition to the provisions which shall be implemented in peace time, the


present Convention shall apply to all cases of declared war or of any other
armed conflict which may arise between two or more of the High
Contracting Parties, even if the state of war is not recognized by one of them.

The Convention shall also apply to all cases of partial or total occupation of
the territory of a High Contracting Party, even if the said occupation meets
with no armed resistance.
Although one of the Powers in conflict may not be a party to the present
Convention, the Powers who are parties thereto shall remain bound by it in
their mutual relations. They shall furthermore be bound by the Convention
in relation to the said Power, if the latter accepts and applies the provisions
thereof.

Article 3

In the case of armed conflict not of an international character occurring in


the territory of one of the High Contracting Parties, each party to the
conflict shall be bound to apply, as a minimum, the following provisions:

1. Persons taking no active part in the hostilities, including members


of armed forces who have laid down their arms and those placed
hors de combat by sickness, wounds, detention, or any other cause,
shall in all circumstances be treated humanely, without any
adverse distinction founded on race, colour, religion or faith, sex,
birth or wealth, or any other similar criteria.
To this end the following acts are and shall remain prohibited at
any time and in any place whatsoever with respect to the above-
mentioned persons:
(a) Violence to life and person, in particular murder of all kinds,
mutilation, cruel treatment and torture;

(b) Taking of hostages;

(c) Outrages upon personal dignity, in particular, humiliating and


degrading treatment;

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(d) The passing of sentences and the carrying out of executions
without previous judgment pronounced by a regularly
constituted court affording all the judicial guarantees which
are recognized as indispensable by civilized peoples.

2. The wounded and sick shall be collected and cared for.

An impartial humanitarian body, such as the International


Committee of the Red Cross, may offer its services to the Parties to
the conflict.

The Parties to the conflict should further endeavor to bring


into force, by means of special agreements, all or part of the other
provisions of the present Convention.
The application of the preceding provisions shall not affect the
legal status of the Parties to the conflict.”

AV. Laws on Neutrality

The state of a nation that takes no part in a war between two or more other
powers.

Since the nineteenth century, International Law has recognized the right of a
nation to abstain from participation in a war between other states. In an
international war, those taking no part are called neutrals. This means that a
neutral state cannot provide assistance to the belligerents, the principal
hostile powers, or to their allies, who cooperate and assist them.

AW. International Environment Law

Environmental laws are the standards that governments establish to manage


natural resources and environmental quality. The broad categories of
“natural resources” and “environmental quality” include such areas as air
and water pollution, forests and wildlife, hazardous waste, agricultural
practices, wetlands, and land use planning

(a) Taking of hostages;

(b) Outrages upon personal dignity, in particular, humiliating and


degrading treatment;
(c) The passing of sentences and the carrying out of executions without
previous judgment pronounced by a regularly constituted court
affording all the judicial guarantees which are recognized as
indispensable by civilized peoples.

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1. The wounded and sick shall be collected and cared for.

An impartial humanitarian body, such as the International


Committee of the Red Cross, may offer its services to the Parties to
the conflict.

The Parties to the conflict should further endeavor to bring into


force, by means of special agreements, all or part of the other
provisions of the present Convention.
The application of the preceding provisions shall not affect the legal
status of the Parties to the conflict.”

AV. Laws on Neutrality

The state of a nation that takes no part in a war between two or more other
powers.

Since the nineteenth century, International Law has recognized the right of a
nation to abstain from participation in a war between other states. In an
international war, those taking no part are called neutrals. This means that a
neutral state cannot provide assistance to the belligerents, the principal
hostile powers, or to their allies, who cooperate and assist them.

AW. International Environment Law

Environmental laws are the standards that governments establish to


manage natural resources and environmental quality. The broad categories
of “natural resources” and “environmental quality” include such areas as air
and water pollution, forests and wildlife, hazardous waste, agricultural
practices, wetlands, and land use planning.

AW.1 Principle 21 of Stockholm Declaration

“The Stockholm Declaration was the first major step of States to try
and bring about some control over the activities of man affecting the human
environment and to create awareness about the environment and the need to
preserve it. It was adopted in the hope that states will follow and act in the
particular way stated and may even suggest that they are legally obliged to
do so. Principle 21 has now become a customary law, which generally
applies to all states and not only to the parties to a particular instrument.
Principle 21 focuses on transboundary harm or State responsibility”
Transboundary Damage and State Responsibility

“Large-scale industrial, agricultural and technical activities of one


country can cause damage to the environment of another nation or simply
cause detrimental effects to its people at large. Such damage can be caused

168
through water, soil, and air and to one or more nations or quite possibly to
the global commons (areas beyond the control of any one particular
government). Such transboundary damage gives rise to the question of State
responsibility and compensation for damage caused.

Treaties of various numbers have come into existence like pollution of


international waters, long-range air pollution, land source damage to the
ocean and oil pollution to give a few examples. Most treaties only lay down
preventive methods compensation, however, the challenge posed is how State
liability for environmental damage caused accidentally and non-accidentally
should differ, and, what liability can be imposed; who decides such liability
compensation? What about liability enforcement? In the determination of
liability there are human activities and also some natural factors so much so
that in principle, transboundary damage should have “proximate causal”
relation to human conduct.

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