CONSTITUTIONAL LAW 1

GENERAL CONSIDERATIONS Political Law - That branch of public law which deals with the organization and operation of the government organs of the state and defines the relations of the state with the inhabitants of its territory. Constitutional Law - designates the law embodied in the constitution and the legal principles growing out of the interpretation and application made by courts of its provisions in specific cases. Constitution - the written instrument, by which the fundamental powers of government are established, limited and defined, and by which those powers are distributed among the several departments for their safe and useful exercise for the benefit of the body politic. Types of Constitutions Classification of Constitutions 1. Written and Unwritten (a) Written - one the provisions of which have been reduced to writing and embodied in one or more instruments at a particular time. Ex: The US Constitution. - also called conventional or enacted, because they are given definite form by a constituted body, the constitutional convention, at a particular time. (b) Unwritten -one w/c has not been committed to writing at any specific time but is the accumulated product of gradual political and legal development. Ex.: The English Constitution. - also known as cumulative or evolved, because they are not formulated at any definite time but are rather the outcome of a political evolutionary process. 2. Flexible and Rigid Constitutions. a. Rigid - when it may not be amended except through a special process distinct from and more involved than the method of changing ordinary laws. b. Flexible - when it may be changed in the same manner and through the same body that enacts ordinary legislation. e.g. British Constitution The Philippine Constitution is written and rigid The 1987 Constitution took effect on February 2, 1987, the date of the plebiscite for its ratification and not on the date its ratification was proclaimed (De Leon v. Esguerra, 153 SCRA 602) Doctrine of Constitutional Supremacy if a law or contract violates any norm of the Constitution, that law or contract, whether promulgated by the legislative or by the executive branch or entered into by private persons for purposes, is null and void and without any force and effect. (Manila Prince Hotel v. GSIS, 267 SCRA 408 [1997]) Self-executing and non-self executing provisions of the Constitution A provision which lays down a general principle, such as those in Article II of the 1987 Constitution, is usually not self-executing. But a provision which is complete in itself and becomes operative without the aid of supplementary or enabling legislation, or that which supplies sufficient rule by means of which the right it grants may be enjoyed or protected, is self-executing. Thus a provision is self-executing if the nature and extent of the right conferred and the liability imposed are fixed by the Constitution itself, so that they can be determined by an

examination and construction of its terms, and there is no language indicating that the subject is referred to the legislature for action. Unless it is expressly provided that a legislative act is necessary to enforce a constitutional mandate, the presumption now is that all provisions in the Constitution are self-executing. If the constitutional provisions are treated as requiring legislation instead of self-executing, the legislature would have the power to ignore and practically nullify the mandate of the fundamental law. (Manila Prince Hotel v. GSIS)) Q: Is the Filipino First Policy expressed in Section 10, Article XII of the Constitution a self-executing provision? A: Yes. It is a mandatory, positive command which is complete in itself and which needs no further guidelines or implementing laws or rules for its enforcement. It is per se judicially enforceable. When our Constitution mandates that [i]n the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos, it means just that qualified Filipinos must be preferred. (Manila Prince Hotel v. GSIS) Non-self executing provisions of the Constitution: Article II Declaration of principles and state policies. These principles are not intended to be self-executing principles ready for enforcement through the courts. They are used by the judiciary as aids or as guides in the exercise of its power of judicial review, and by the legislature in its enactment of laws. (Tanada v. Angara, 272 SCRA 18 [1997], En Banc [Panganiban]) Acts of persons considered State Action covered by the Constitution: when the activity it engages in is a public function when the government is so significantly involved with the private actor as to make the government responsible for his action; and when the government has approved or authorized the action. (Manila Prince Hotel v. GSIS]) Notes from the case of MIRIAM DEFENSOR SANTIAGO, ET AL vs. COMELEC and PIRMA (G.R. No. 127325 3/19/97) Section 2 of Article XVII of the Constitution is not self-executory. Per Com. Joaquin Bernas: Without implementing legislation Section 2 cannot operate. Thus, although this mode of amending the Constitution is a mode of amendment which bypasses congressional action, in the last analysis it still is dependent on congressional action. Thus, while the Constitution has recognized or granted that right, the people cannot exercise it if Congress, for whatever reason, does not provide for its implementation. It was made clear during the interpellations that Section 2 is limited to proposals to AMEND not to REVISE the Constitution. R.A. No. 6735 was intended to cover initiative to propose amendments to the Constitution. But it is not a full compliance with the power and duty of Congress to "provide for the implementation of the exercise of the right." Initiative on the Constitution is confined only to proposals to AMEND. The people are not accorded the power to "directly propose, enact, approve, or reject, in whole or in part, the Constitution" through the system of initiative. They can only do so with respect to "laws, ordinances, or resolutions." RA 6735 is not adequate, hence Art. XVII, Sec. 2 remains to be non-self executing, as regards to revision of the Constitution. The law is limited only to amendments. FUNDAMENTAL POWERS OF THE STATE Police Power Power promoting public welfare by restraining and regulating the use of liberty and property Basis: PUBLIC NECESSITY AND THE RIGHT OF THE State and of the public to self-protection and selfpreservation

Who may exercise: generally the Legislature but also upon valid delegation to: 1. the President 2. Administrative bodies 3. law-making bodies or LGUs under the general welfare clause Justification for police power is found in the ancient Latin maxims, Salus populi est suprema lex (the welfare of the people is the supreme law) and Sic utere tuo ut alienum non laedas (so use your own property so as not to impair other) Requisites (Limitations): (Lawful Subject) The interests of the public generally, as distinguish from those of a particular class; 2. (Lawful Means) The means employed are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals. Additional limitations when exercised by delegates: 1. express grant by law 2. within territorial limits 3. must not be contrary to law Power of Eminent Domain Right or power of a sovereign state to appropriate private property to particular uses to promote public welfare. The exercise of the right of eminent domain, whether directly by the State, or by its authorized agents, is necessarily in derogation of private rights; hence it must be strictly construed. Who can exercise: generally, the legislature but can be delegated to: 1. The President 2. administrative bodies 3. public corporations 4. quasi-public corporations Requisites: Necessity when exercised by: Congress political question Delegate - justiciable question The power is only necessary when the owner does not want or opposes the sale of his property. Thus, if a valid contract exists between the government and the owner, the government cannot exercise the power of eminent domain as a substitute to the enforcement of the contract Private property All private property capable of ownership may be expropriated EXCEPT: money Choses in action Private property already devoted to public use cannot be expropriated by a delegate of legislature acting under a general grant of authority Taking Elements: a. The expropriator enters the property b. The entrance must not be for a momentary period c. Entry is made under a warrant or color of legal authority d. Property is devoted to public use e. Utilization of the property must be in such a way as to oust the owner and deprive him of the beneficial enjoyment of his property Public use Has been broadened to include not only uses directly available to the public but also those which redound to their indirect benefit; that only a few would actually benefit from the expropriation of the property does not necessarily diminish the essence and character of public use

Examples of public use: land reform and socialized housing. Just compensation The full and fair equivalent of the property taken Fair market value - the price that may be agreed upon by parties who are willing but are not compelled to enter into contract Formula FMV + consequential damages-consequential benefits Reckoning point of market value date of filing of the complaint or actual taking whichever comes first Exception: When the filing of the case comes later than the time of taking and meanwhile the value of the property has increased because of the use to which the expropriator has put it, the value is that of the time of the earlier taking. BUT if the value increased independently of what the expropriator did, then the value is that of the latter filing of the case. NOTE: Even before compensation is given, entry may be made upon the property condemned. The deposit of money or an equivalent form of payment such as government bonds is necessary and sufficient to satisfy the requirement. Any law fixing the amount of just compensation is not binding on the courts because it is a question of fact which is always subject to review by the courts. Due process of law The defendant must be given the opportunity to be heard Judicial review of the exercise of the power of eminent domain a) Determine the adequacy of the compensation b) Determine the necessity of the taking c) To determine the public use character of the taking. However, if the expropriation is pursuant to a specific law passed by Congress, the courts cannot question the public use character of the taking. When municipal property is taken by the State: Compensation is required if the property is a patrimonial property, that is, property acquired by the municipality with its private funds in its corporate or private capacity. However, if it is any other property such a public buildings or legua comunal held by the municipality for the State in trust for the inhabitants, the State is free to dispose of it at will. Requisites for the valid exercise of the power of eminent domain by LGUs: 1. An ordinance is enacted by the local legislative council authorizing the local chief executive, in behalf of the LGU to exercise the power of eminent domain or pursue expropriation proceedings over a particular private property; 2. Power of eminent domain is exercised for public use, purpose or welfare, or for the benefit of the poor and the landless; 3. There is payment of just compensation; 4. A valid and definite offer has been previously made to the owner of the property sought to be expropriated, but said offer was not accepted. (JIL Christian Sch Foundation, Inc. vs. Mun of Pasig, 466 SCRA 235 Aug. 9, 2005) Commissioner of Internal Revenue v Central Luzon Drug Corp (456 SCRA 414) The tax benefit granted to the establishments can be deemed as their just compensation for private property taken by the State for public use The taxation power can also be used as an implement for exercise of the power of eminent domain Power of Taxation the inherent power of the sovereign, exercised through the legislature, to impose burdens upon the

subjects and objects within its jurisdiction, for the purpose of raising revenues to carry out the legitimate objects of the government. Who can exercise: generally, the Legislature, but also upon valid delegation: 1. law-making bodies of LGUs and 2. the President when granted delegated tariff powers TAXES - Enforced proportional contributions from properties and persons levied by the State by virtue of its sovereignty for the support of the government and for public needs. BASIS OF TAXATION - GOVERNMENTAL NECESSITY. (lifeblood doctrine) LIFEBLOOD DOCTRINE Taxes are the lifeblood of the nation and should be collected without unnecessary hindrance. But their collection should not be tainted with arbitrariness Without revenue raised from taxation, the government will not survive, resulting in detriment to society. Without taxes, the government would be paralyzed for lack of motive power to activate and operate it. (CIR vs. ALGUE) THEORY OF TAXATION - RECIPROCAL DUTIES OF SUPPORT AND PROTECTION 1) Support on the part of the taxpayers 2) Protection and benefits on the part of the government LORENZO vs. POSADAS - The only benefit to which the taxpayer is entitled is that derived form the enjoyment of the privileges of living in an organized society established and safeguarded by the devotion of taxes to public purpose. The government promises nothing to the person taxed beyond what maybe anticipated from an administration of the laws for the general good. REQUISITES of a VALID TAX 1) It should be for a public purpose 2) The rule of taxation should be uniform 3) That either the person or property taxed be within the jurisdiction of the taxing authority 4) That the assessment and collection be in consonance with the due process clause 5) The tax must not infringe on the inherent and constitutional limitations of the power of taxation NATURE OF TAXATION - Inherent in sovereignty and legislative in character TOLENTINO vs. SEC. of FINANCEIn the selection of the object or subject of taxation the courts have no power to inquire into the wisdom, objectivity, motive, expediency or necessity of such tax law. The power to tax includes the power to destroy if it is used as an implement of the police power (regulatory) of the State. However, it does not include the power to destroy if it is used solely for the purpose of raising revenue. (ROXAS vs. CTA) NOTES: If the purpose of taxation is regulatory in character, taxation is used to implement the police power of the state If the power of taxation is used to destroy things, businesses, or enterprises and the purpose is to raise revenue, the court will come in because there will be violation of the inherent and constitutional limitations and it will be declared invalid. NATURE OF THE TAXING POWER 1) Attribute of sovereignty and emanates from necessity, relinquishment of which is never presumed 2) Legislative in character, and 3) Subject to inherent and constitutional limitations Constitutional limitations

a. b. c. d. e. f.

Due process clause Equal protection clause Freedom of the press Religious freedom Non-impairment clause Law-making process 1. One-subject One-title Rule 2. 3 readings on 3 separate days Rule except when there is a Certificate of Emergency 3. Distribution of copies 3 days before the 3rd reading. g. Presidential power to grant reprieves, commutations and pardons, and remit fines and forfeitures after conviction by final judgment. h. Revenue bill must originate exclusively in H.R. but the Senate may propose amendments. i. Non-imprisonment for non-payment of poll tax. j. Taxation shall be uniform and equitable. k. Congress shall evolve a progressive system of taxation. l. Tax exemption of charitable institutions, churches and personages or convents appurtenant thereto, mosques, non-profit cemeteries, and all lands, buildings and improvements ADE (actually, directly, exclusively) used for charitable, religious, and educational purposes. m. Tax exemption of all revenues and assets used ADE for educational purposes of 1. Non-profit non-stock educational institutions. 2. Proprietary or cooperative educational institutions subject to limitations provided by law including a) Restriction on dividends b) Provisions for re-investments. n. Tax exemption of grants, endowments, donations or contributions ADE for educational purposes, subject to conditions prescribed by law. o. No tax exemption without the concurrence of a majority of all members of Congress. p. SC power to review judgments or orders of lower courts in all cases involving Legality of any tax, impost or toll, legality of any penalty imposed in relation thereto. Inherent limitations a. public purpose b. non-delegability of power c. territoriality or situs of taxation d. exemption of government from taxation e. international comity Public purpose is determined by the use to which the tax money is devoted If it benefits the community in general then it is for a public purpose no matter who collects it A tax levied for a private, not public purpose constitutes taking of property without due process of law as it is beyond the powers of the government to impose it. Although private individuals are directly benefited, the tax would still be valid, provided such benefit is only incidental If what is incidental is the promotion of a private enterprise, as long as there is a link to the public welfare, the purpose is still public The test that must be applied in determining whether the purpose is public or private 1) The character of the direct object 2) The ultimate result not the immediate result 3) The general welfare for public good LEGISLATIVE PREROGATIVE RULE: It is Congress which has the power to determine whether the purpose is public or private TAXPAYERS SUIT - a case where the act complained of directly involves the illegal disbursement of public funds derived from taxation

> Taxpayers have sufficient interest of preventing the illegal expenditures of money raised by taxation (NOT DONATIONS AND CONTRIBUTIONS) > A taxpayer is not relieved from the obligation of paying a tax because of his belief that it is being misappropriated by certain officials > A taxpayer has no legal standing to question executive acts that do not involve the use of public funds. (GONZALES vs. MARCOS) REQUISITES FOR A TAXPAYERS PETITION 1) That money is being extracted and spent in violation of specific constitutional protections against abuses of legislative power 2) That public money is being deflected to any improper purpose 3) That the petitioner seeks to restrain respondents from wasting public funds through the enforcement of an invalid or unconstitutional law. Public purpose is continually expanding. Areas formerly left to private initiative now loose their boundaries and may be undertaken by the government, if it is to meet the increasing social challenges of the times

Public purpose is determined at the time of enactment of the tax law and not at the time of implementation TAX As to Basis power of taxation to raise revenues As to limitation Rate or amount to be collected unlimited provided not confiscatory As to object Imposed on persons or property LICENSE FEE Police power regulate to

Amount limited to cost of: (a) issuing the license and (b) necessary inspection or police surveillance

Paid for privilege of doing something but privilege is REVOCABLE As to effect of non-payment Business or activity Business becomes does not become illegal illegal POLICE POWER Regulates both liberty and property Exercised only by the government EMINENT DOMAIN Affects only property rights May be exercised private entities TAXATION Affects only property rights Exercised only by the government

Public necessity and the right of the state and of the public to selfpreservation and selfprotection Property intended for a noxious purpose is taken and destroyed Compensatio n is the intangible, altruistic feeling that the individual had contributed to the society Contracts may be impaired

Necessity of the public for the use of private property

Public necessity

Property is wholesome and is devoted for public use or purpose Compensatio n is full and fair , equivalent to the property taken

Contracts may be impaired

Property is wholesome and is devoted for public use or purpose Compensatio n is the protection and public improvement s instituted by the government for the taxes paid Contracts may not be impaired

Double taxation additional taxes are laid: On the same subject; By the same taxing jurisdiction During the same taxing period; and For the same purpose Despite lack of specific constitutional prohibition, double taxation will not be allowed if the same will result in a violation of the equal protection clause. Tax exemptions Law granting tax exemptions should be passed with the concurrence of a majority of all the Members of Congress Where tax exemption is granted gratuitously, it may be revoked at will; but not if granted for a valuable consideration. ARTICLE I THE NATIONAL TERRITORY The national territory of the Philippines comprises: 1. The Philippine archipelago 2. With all the islands and waters embraced therein 3. And all other territories over which the Philippines has sovereignty or jurisdiction 4. Consisting of its terrestrial, fluvial; and aerial domains 5. Including its territorial sea, seabed, subsoil, insular shelves; and other submarine areas 6. 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. (Archipelagic Doctrine)

Archipelago - a body of water studded with islands. all other territories over which the Philippines has sovereignty or jurisdiction It includes any territory that presently belongs or might, in the future, belong to the Philippines through any of the internationally accepted modes of acquiring territory. Elements of archipelagic principle Two elements: 1. The definition of internal waters 2. The straight baseline method of - drawing straight lines connecting appropriate points on the coast without departing to any appreciable extent from the general direction of the coast. Important distances with respect to the waters around the Philippines 1. Territorial sea portion of the open sea adjacent to the shores of a State over which that state exercises jurisdiction; 12 nautical miles (n.m.) from the low water mark 2. Contiguous zone extends up to 12 n.m. from the territorial sea. Although not part of the territory, the coastal State may exercise jurisdiction to prevent infringement of customs, fiscal, immigration or sanitary laws; 12 n.m. from the edge of the territorial sea 3. 200 N.M. Exclusive economic zone (EEZ) not part of the national territory but exclusive economic benefit is reserved for the country ARTICLE II DECLARATION OF PRINCIPLES AND STATE POLICIES I. SEPARATION OF POWERS Purpose: to prevent the concentration of authority in one person or group of persons that might lead to irreparable error or abuse in its exercise to the detriment of republican institutions Principle of Blending Powers instance when powers are not confined exclusively within one department but are assigned to or shared by several departments Principle of Checks and Balances allows one department to resist encroachments upon its prerogatives or to rectify mistakes or excesses committed by the other departments II. DELEGATION OF POWERS General Rule: potestas delegate non potest delegare based on the ethical principle that delegated power constitutes not only a right but also a duty to be performed by the delegate through the instrumentality of his own judgment and not through the intervening mind of another. Permissible delegation Code: PETAL 1. Delegation to the People 2. Emergency powers of the President 3. Tariff powers of the President 4. Delegation to Administrative bodies 5. Delegation to LGUs Test for Valid Delegation:

Completeness test law must be complete in all its essential terms and conditions when it leaves the legislature so that there will be nothing left for the delegate to do when it reaches him except to enforce it. Sufficient standard test maps out the boundaries of the delegates authority by defining the legislative policy and indicating the circumstances under which it is to be pursued. Both test must concur SELECTED PRINCIPLES SEC 1. The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them. State A community of persons, more or less numerous, permanently occupying a definite portion of territory, independent of external control, and possessing a government to which a great body of the inhabitants render habitual obedience Elements of a State (for municipal law purposes) 1. People inhabitants of the State, the number of which is capable for self-sufficiency and selfdefense, of both sexes for perpetuity 2. Territory a fixed portion of the surface of the earth inhabited by the people of the State 3. Government agency or instrumentality through which the will of the State is formulated, express and realized Functions: Governmental or constituent involves the exercise of sovereignty, therefore compulsory Proprietary or ministrant exercise of proprietary functions and thus considered as optional Doctrine of Parens Patriae The Government may act as guardian of the rights of people who may be disadvantaged or suffering from some disability or misfortune Classification of Governments: De jure - one established by the authority of the legitimate sovereign - has the rightful title but no power or control, either because the same has been withdrawn from it or because it has not yet actually entered into the exercise thereof De facto - one established in defiance of the legitimate sovereign - actually exercises power or control but without legal title i. De facto proper - government that gets possession and control of or usurps by force or by the voice of majority the rightful legal government and maintains itself against the will of the latter. ii. Government of paramount force- established and maintained by military forces who invade and occupy a territory of the enemy in the course of war iii. Independent government - that established as an independent government by the inhabitants of a country who rise in insurrection against the parent state. Functions of Government a. governmental or constituent involves the exercise of sovereignty and therefore compulsory b. proprietary or ministrant exercise of proprietary functions and thus optional 4. governed Sovereignty supreme and uncontrollable power inherent in a State by which that State is

Imperium The States authority to govern embraced in the concept of sovereignty; includes passing laws governing a territory, maintaining peace and order over it, and defending it against foreign invasion

Distinction between sovereignty and dominion. Sovereignty - the right to exercise the functions of a State to the exclusion of any other State. It is often referred to as the power of imperium, which is defined as the government authority possessed by the State. Dominion or dominium - the capacity of the State to own or acquire property such as lands and natural resources. (Separate opinion, Kapunan, J. in Cruz v. DENR, G.R. No. 135385, December 6, 2000.) Effect of belligerent occupation no change in sovereignty. However, political laws, except those of treason, are suspended; municipal laws remain in force unless changed by the belligerent occupant Principle of Jus Postliminium at the end of the occupation, political laws are automatically revived (Peralty vs. Dir of Prisons, 75 Phil 285) Jurisdiction manifestation of sovereignty I. Territorial authority to have all persons and things within its territorial limits be completely subject to its control and protection Exceptions: a. foreign states, heads of state, diplomatic representatives, consuls to a certain degree b. foreign state property, including embassies, consulates, and public vessels engaged in noncommercial activities c. acts of state d. foreign merchant vessels exercising the rights of innocent passage or involuntary entry; e.g. arrival under stress e. foreign armies passing through or stationed in its territory with its permission f. such other persons or property over which it may, by agreement, waive jurisdiction; e.g. United Nations II. Personal authority over its nationals, their persons, property, or acts, whether within or outside its territory III. Extraterritorial authority over persons, things or acts, outside its territorial limits by reason of their effects to its territory Doctrine of AUTO-LIMITATION: any state may by its consent, express or implied, submit to a restriction of its sovereign rights. There may thus a curtailment of what otherwise is a power plenary in character. The Doctrine of State Immunity from Suit There can be no legal right as against the authority that makes the law on which the right depends GR: The State may not be sued without its consent. Exceptions: 1. When the State consents. Express consent through a general law (i.e., CA No. 327, as amended by PD No. 1445 [Sections 49-50], which requires that all money claims against the government must first be filed with the Commission on Audit which must act upon it within sixty days. Rejection of the claim will authorize the claimant to elevate the matter to the Supreme Court on certiorari and, in effect, sue the State thereby) or a special law. In this jurisdiction, the general law waiving the immunity of the state from suit is found in Act No. 3083, where the Philippine government consents and submits to be sued upon any money claim involving liability arising from contract, express or implied, which could serve as a basis of civil action between the private parties. Implied consent: a) When the State itself commences litigation, thus opening itself to a counterclaim b) When it enters into a contract in the exercise of its sovereign function.(as opposed to a contract entered in its proprietary capacity.) Sovereign and governmental acts (jure imperii) private, commercial and proprietary acts (jure gestionis). State immunity now extends only to acts jure imperii

Test to determine if suit is against the State If the enforcement of a decision rendered against the public officer or agency impleaded require an affirmative act from the State such as the appropriation of the needed amount to satisfy the judgment Suit against public officers without prior consent of the State: when proper To compel him to do an act required by law To restrain him from enforcing an act claimed to be unconstitutional To compel the payment of damages from an already appropriated assurance fund or to refund tax over-payments from a fund already available for the purpose To secure a judgment that the officer may satisfy by himself Where the government itself has violated its own laws Public official is sued in his personal capacity Instances when a suit against the State is proper. 1) When the Republic is sued by name; 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. (Sandoval,supra) Garnishment of government funds: GR: NO. Whether the money is deposited by way of general or special deposit, they remain government funds and are not subject to garnishment. EXCEPT: When a law or an ordinance has been enacted, appropriating a specific amount to pay a valid government obligation, then the money can be garnished. Suability is not the same as liability Funds belonging to government corporations (whose charters provide that can sue and be sued) that are deposited with a bank are not exempt from garnishment All money claims against the government must first be filed with the Commission on Audit before suit is instituted in court Republican State - one wherein all government authority emanates from the people and is exercised by representatives chosen by the people. SEC. 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. Note: The Philippines only renounces AGGRESSIVE war as an instrument of national policy, not defensive war. Incorporation clause - adopts the generally accepted principles of international law as part of the law of the land without need of a law passed by Congress Since treatise become part of Philippine law by ratification, the principle of incorporation applies only to customary law and to treatise, which have become part of customary law. (Bernas, Constitutional law) Incase of conflict between municipal law and international law Efforts should first be exerted to harmonize them Where the conflict is irreconcilable, municipal law should be upheld Amity with all nations - This does not mean automatic diplomatic recognition of all nations. recognition remains a matter of executive discretion. Diplomatic

SEC.3. Civilian authority is, at all times, supreme over the military. The Armed Forces of the Philippines is the protector of the people and the State. Its goal is to secure the sovereignty of the State and the integrity of the national territory.

Civilian authority/supremacy clause Ensured by: 1. The installation of the President, the highest civilian authority, as the commander-in-chief of all the armed forces of the Philippines [Sec 18, Art VII] 2. The requirement that members of the AFP swear to uphold and defend the Constitution, which is the fundamental law of the civil government {Sec 5(1), Art XVI] Illustrative Case: The deployment of the Marines does not constitute a breach of the civilian supremacy clause. The calling of the marines constitutes permissible use of military assets for civilian law enforcement. (IBP v. Hon. Ronaldo B. Zamora, G.R. No. 141284, Aug. 15, 2000, En Banc [Kapunan]) SEC. 4. The prime duty of the Government is to serve and protect the people. The Government may call upon the people to defend the State and, in fulfillment thereof, all citizens may be required, under conditions provided by law, to render personal, military or civil service. Personal Service does not contemplate money, property or their equivalent; substitutionary service is not allowed because of the equal protection clause The right of the Government to require compulsory military service is a consequence of its duty to defend the State and is reciprocal with its duty to defend the life, liberty, and property of the citizen. (People vs. Lagman and Sosa, 66 Phil 13 [1938]). Mark of sovereignty Positively, the military is the guardian of the people and of the integrity of the national territory and therefore ultimately of the majesty of the law. SEC.5. The maintenance of peace and order, the protection of life, liberty and property, and the promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy. SEC.6. The Separation of Church and State shall be inviolable. Reinforced by: 1. freedom of religion clause; 2. non-establishment of religion clause; 3. no religious test clause [Sec 5, Art III] 4. no sectoral representative from religious sector [Sec 5(2), Art VI] 5. prohibition against appropriation for sectarian benefits [Sec 29(2), Art VI] 6. non-registration of religious denominations and sects as political parties [Sec 2(5) Art IX-C} Exceptions: 1. churches, parsonages, etc., actually, directly and exclusively used for religious, charitable and educational purposes shall be exempt from taxation 2. prohibition against appropriation for sectarian purposes, except when priest, etc. is assigned to the armed forces, penal institution or government orphanage or leprosarium 3. optional religious instruction for public elementary and high school students [sec 3(3), Art XIV]; and 4. Filipino ownership requirement for educational institutions, except those established by religious groups and mission boards [Sec 4(2), Art XIV] SEC.7. The State shall pursue an independent foreign policy. In its relations with other states, the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to selfdetermination. SEC.8. The Philippines, consistent with the national interest, adopts and pursues a policy of freedom from nuclear weapons in its territory.

Policy of freedom from nuclear weapons Note: The policy PROHIBITS the possession, control and manufacture of nuclear weapons and nuclear arms tests, but DOES NOT prohibit the peaceful uses of nuclear energy. SEC.16. 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. While the right to a balanced and healthful ecology is to be found under the Declaration of Principles and State Policies and not under the Bill of Rights, it does not follow that it is less important than any of the civil and political rights enumerated in the latter. Such a right belongs to a different category of rights altogether for it concerns nothing less than self-preservation and self-perpetuation, the advancement of which may even be said to predate all governments and constitutions. (Oposa vs. Factoran, Jr. 224 SCRA 792 [1993] SEC.17. The State shall give priority to education, science and technology, arts, culture, and sports to foster patriotism, accelerate social progress, and promote total human liberation and development. Education is important for the development of the nation and thus, educational institutions are subject to supervision and regulation. It is to be emphasized that the Constitution allows merely the regulation and supervision of educational institutions, NOT DEPRIVATION of their rights. (Miriam College Foundation Inc. vs. CA, 348 SCRA 265 {Dec. 15, 2000}) Academic Freedom refers to the freedom of the university to determine who may teach, what may be taught, how it shall be taught and who shall be admitted to study (Sweezy vs. New Hampshire, 353 US 234, 263 [1957]) SEC.26. The State shall guarantee equal access to opportunities for public service, and prohibit political dynasties as may be defined by law. SEC.27. The State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption. SEC.28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest. ARTICLE III BILL OF RIGHTS Civil rights - those rights that belong to every citizen of the state or country, or, in a wider sense, to all its inhabitants, and are not connected with the organization or administration of government Political rights - rights to participate, directly or indirectly, in the establishment or administration of government Sec.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.

DUE PROCESS

Aspects of Due Process: 1. Procedural due process refers to the mode of procedure which government agencies must follow in the enforcement and application of laws. 2. Substantive due process serves as a restriction on governments law and rule-making powers

PROCEDURAL DUE PROCESS: 1. A law which hears before it condemns. 2. Due process of law contemplates notice and opportunity to be heard before judgment is rendered affecting ones person or property. 3. Due process depends on circumstances; it varies with the subject matter and the necessities of the situation. Requisites of PROCEDURAL due process: For JUDICIAL proceedings: CODE: I J H J 1. An impartial court/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 subject of the proceedings. 3. The defendant must be given notice and an opportunity to be heard. 4. Judgment must be rendered upon a lawful hearing. For ADMINISTRATIVE proceedings: CODE: H E D S H I P 1. The right to a hearing, which includes the right to present ones case and submit evidence in support thereof. 2. The tribunal must consider the evidence presented. 3. The decision must have something to support itself. 4. Evidence supporting the conclusion must be substantial. 5. The decision must be based on the evidence presented at the hearing or contained in the record and disclosed to the parties affected. 6. The tribunal or body or any of its judges must act on its independent consideration of the law and facts of the controversy. 7. The body should, in all controversial questions, render its decision in such a manner that the parties to the proceeding can know the various issues involved and the reasons for the decision rendered. (Ang Tibay v. CIR, 69 Phil 635) Note: What is required is not actual hearing, but a real opportunity to be heard. The requirement of due process can be satisfied by subsequent due hearing. Violation of due process: when same person reviews his own decision on appeal. Notice and hearing are required in judicial and quasi-judicial proceedings, but not in the promulgation of general rule. For SCHOOL DISCIPLINARY proceedings: CODE: W A In A D P 1. The student must be informed in writing of the nature and cause of the accusation. 2. The student shall have the right to answer the charges against him, with the assistance of counsel if desired. 3. The student has the right to be informed of the evidence against him. 4. The student has the right to adduce evidence in his own behalf. 5. The evidence must be duly considered by the investigating committee or official designated by the school authorities to hear and decide the case. 6. The penalty imposed must be proportionate to the offense. (Ateneo de Manila v. Capulong, 222 SCRA 644) Note: The school has a contractual obligation to afford its students a fair opportunity to complete the

course a student has enrolled for. Exceptions: 1. Serious breach of discipline; or 2. Failure to maintain the required academic standard. Proceedings in student disciplinary cases may be summary; cross-examination is not essential For CRIMINAL proceedings: 1. Accused has been heard by a court of competent jurisdiction; 2. Accused is proceeded against under the orderly processes of law; 3. Accused is given notice and opportunity to be heard; and 4. Judgment rendered within authority of constitutional law Instances when hearings are NOT necessary: 1. When administrative agencies are exercising their quasi-legislative functions. 2. Abatement of nuisance per se. 3. Granting by courts of provisional remedies. 4. Cases of preventive suspension. 5. Removal of temporary employees in the government service. 6. Issuance of warrants of distraint and/or levy by the BIR Commissioner. 7. Cancellation of the passport of a person charged with a crime. 8. Issuance of sequestration orders 9. Judicial order which prevents an accused from traveling abroad in order to maintain the effectivity of the courts jurisdiction. 10. Suspension of a banks operations by the Monetary Board upon a prima facie finding of liquidity problems The right to appeal is a statutory privilege that may be exercised only in the manner in accordance with law. Requisites of SUBSTANTIVE due process: Code: I M The INTERESTS of the public generally, as distinguished from those of a particular class, requires the interference by the government and The MEANS employed are necessary for the accomplishment of the purpose and not unduly oppressive upon individuals. Requirements of a valid ordinance: CODE: Must not CUPPU, Must be GC 1. Not contrary to Constitution or any statute 2. Not unfair or oppressive 3. Not be partial or discriminatory 4. Must not prohibit, but may regulate trade 5. Must not be unreasonable 6. Must be general and consistent with public policy VOID FOR VAGUENESS DOCTRINE A law is VAGUE when it lacks COMPREHENSIBLE STANDARDS that men of ordinary intelligence must necessarily GUESS as to its meaning and differs as to its application Why is a VAGUE law unconstitutional? 1) it violates due process for failure to accord persons fair notice of the conduct to avoid 2) it leaves law enforcers unbridled discretion in carrying out its provisions OVERBREADTH DOCTRINE A government purpose may not be achieved by means, which sweep unnecessarily broadly and thereby invade the area of protected freedoms

NOTE: Vagueness and overbreadth are distinct from each other; a vague law must lack clarity and precision, while an overbroad law need not Vagueness may be applied to cases involving speech and also criminal cases Overbreadth as an analytical tool is applicable only to cases involving speech In order to fall within the aegis of this provision, two conditions must concur, namely, that there is a deprivation and that such deprivation is done without proper observance of due process. When one speaks of due process of law, however, a distinction must be made between matters of procedure and matters of substance. In essence, procedural due process "refers to the method or manner by which the law is enforced," while substantive due process "requires that the law itself, not merely the procedures by which the law would be enforced, is fair, reasonable, and just." (Corona v. United Harbor Pilots Association of the Phils., 283 SCRA 31, Dec. 12, 1997 [Romero]) The right to counsel, which cannot be waived unless the waiver is in writing and in the presence of counsel, is a right afforded a suspect or an accused during custodial investigation. It is not an absolute right and may, thus, be invoked or rejected in a criminal proceeding and, with more reason, in an administrative inquiry. While investigations conducted by an administrative body may at times be akin to a criminal proceeding, the fact remains that under existing laws, a party in an administrative inquiry may or may not be assisted by counsel, irrespective of the nature of the charges and of the respondent's capacity to represent himself, and no duty rests on such a body to furnish the person being investigated with counsel. In an administrative proceeding x x x a respondent x x x has the option of engaging the services of counsel or not. x x x Thus, the right to counsel is not imperative in administrative investigations because such

inquiries are conducted merely to determine whether there are facts that merit disciplinary measures against erring public officers and employees, with the purpose of maintaining the dignity of government service. The right to counsel is not indispensable to due process unless required by the Constitution or the law. X x x. (Lumiqued v. Exevea, 282 SCRA 125, Nov. 18, 1997 [Romero])

An extraditee has no right to notice and hearing during the evaluation stage of the extradition process. P.D. No. 1069 which implements the RP-US Extradition Treaty affords an extraditee sufficient opportunity to meet the evidence against him once the petition is filed in court. The time for the extraditee to know the basis of the request for his extradition is merely moved to the filing in court of the formal petition for extradition. The extraditee's right to know is momentarily withheld during the evaluation stage of the extradition process to accommodate the more compelling interest of the State to prevent escape of potential extraditees which can be precipitated by premature information of the basis of the request for his extradition. No less compelling at that stage of the extradition proceedings is the need to be more deferential to the judgment of a co-equal branch of the government, the Executive, which has been endowed by our Constitution with greater power over matters involving our foreign relations. There is no denial of due process as long as fundamental fairness is assured a party. (Secretary of Justice v. Hon. Ralph C. Lantion, G.R. No. 139465, Oct. 17, 2000, En Banc [Puno]) EQUAL PROTECTION OF THE LAW The equality that it guarantees is legal equality or the equality of all persons before the law. It does not demand absolute equality. It merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. Requisites of valid classification: CODE: SGEE a. Rest on substantial distinctions b. Be germane to the purposes of the law c. Not limited to existing conditions only d. Apply equally to all members of the same class. Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable

searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the person or things to be seized. General Rule: Search and seizures are unreasonable UNLESS authorized by a validly issued search warrant or warrant of arrest Requisites for a valid warrant: CODE: P J E D One 1. It must be issued upon PROBABLE CAUSE. 2. The existence of probable cause is determined personally by the JUDGE. 3. The judge must EXAMINE UNDER OATH the complainant and the witnesses he may produce. 4. The warrant must PARTICULARLY DESCRIBE the place to be searched and person or things to be seized. 5. It must be in connection with One specific offense. Definition of PROBABLE CAUSE For the issuance of a warrant of arrest: Probable cause refers to 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. For the issuance of a search warrant: Probable cause would mean 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 to be searched. Note: Probable cause for the issuance of a search warrant does NOT require that the probable guilt of a specific offender be established, unlike in the case of a warrant of arrest. Existence of probable cause DETERMINED PERSONALLY BY THE JUDGE The judge is NOT required to personally examine the complainant and his witnesses. What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause (Soliven v. Makasiar, 167 SCRA 394). To be sure, the Judge must go beyond the prosecutors certification and investigation report whenever necessary (Lim v. Felix). Procedure: 1. The judge personally evaluates the report and supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest or 2. If on the basis thereof, the judge finds no probable cause, he may disregard the prosecutors report and require the submission of supporting affidavits of witnesses to aid him in arriving at the conclusion as to the existence of probable cause. Examination UNDER OATH OR AFFIRMATION OF THE COMPLAINANT AND WITNESSES 1. The oath required must refer to the truth of the facts within the personal knowledge of the complainant or his witnesses because the purpose is to convince the judge of the existence of probable cause. 2. The true test of sufficiency of an affidavit to warrant the issuance of a search warrant is whether it has been drawn in such a manner that perjury could be

charged thereon and affiant be held liable for the damages caused. (Alvarez v. CFI, 64 Phil. 33) PARTICULARITY OF DESCRIPTION (SEARCH WARRANT) 1. A search warrant may be said to particularly describe the things to be seized when the description therein is as specific as the circumstances will ordinarily allow or 2. When the description expresses a conclusion of fact not of law by which the warrant officer may be guided in making the search and seizure or 3. When the things described are limited to those which bear a direct relation to the offense for which the warrant is being issued (Bache and Co. v. Ruiz, 37 SCRA 823). JOHN DOE WARRANT - A John Doe warrant can satisfy the requirement of particularity of description if it contains a descriptio personae such as will enable the officer to identify the accused (People v. Veloso, 48 Phil. 159) GENERAL WARRANT - A general warrant is one that does not allege any specific acts or omissions constituting the offense charged in the application for the issuance of the warrant. It contravenes the explicit demand of the Bill of Rights that the things to be seized be particularly described. VALID WARRANTLESS SEARCH 1. when right has been voluntarily waived 2. as an incident to a lawful arrest, provided search is contemporaneous to arrest and within permissible area of search a valid arrest must precede the search; the process cannot be reversed 3. Searches of vessel and aircraft for violation of fishery, immigration and customs laws 4. Searches of automobiles at borders or constructive borders for violation of immigration and smuggling laws 5. inspection of buildings and other premises for the enforcement of fire, sanitary and building regulations 6. Visual search at checkpoints 7. Conduct of areal target zoning and saturation drive in the exercise of military powers of the President 8. When there is a genuine reason to stop-and-frisk in the light of the police officers experience and surrounding conditions to warrant a belief that the person detained has weapons concealed 9. Where prohibited articles are in plain view 10. Seizure of goods concealed to avoid customs duties/authorized under the Tariffs and Customs Code The Tariffs and Customs Code authorizes persons having police authority under the Code to effect search and seizures without a search warrant to enforce customs laws. Exception: A search warrant is required for the search of a dwelling house. Searches under this exception include searches at borders and ports of entry. Searches in these areas do not require the existence of probable cause

1. Seizure of evidence in plain view A. B. C. D. There was a prior intrusion The evidence was inadvertently discovered The evidence is immediately apparent Plain view is justified seizure without further search.

2. Waiver of right A. Requisites of a valid waiver:

i. The right exists. ii. The person had actual or constructive knowledge of the existence of such right. iii. There is an actual intention to relinquish such right. B. The right against unreasonable searches and seizures is a personal right. Thus, only the person being searched can waive the same. C. Waiver requires a positive act from the person. Mere absence of opposition is not a waiver. D. The search made pursuant to the waiver must be made within the scope of the waiver. Note: Checkpoints: as long as the vehicle is neither searched nor its occupants subjected to a body search and the inspection of the vehicle is limited to a visual search = valid search The 1987 Constitution has returned to the 1935 rule that warrants may be issued only by judges, but the Commissioner of Immigration may order the arrest of an alien in order to carry out a FINAL deportation order. It is clear that an object is in plain view if the object itself is plainly exposed to sight. The difficulty arises when the object is inside a closed container. Where the object seized was inside a closed package, the object itself is not in plain view and therefore cannot be seized without a warrant. However, if the package proclaims its contents, whether by its distinctive configuration, its transparency, or if its contents are obvious to an observer, then the contents are in plain view and may be seized. In other words, if the package is such that an experienced observer could infer from its appearance that it contains the prohibited article, then the article is deemed in plain view. It must be immediately apparent to the police that the items that they observe may be evidence of a crime, contraband or otherwise subject to seizure. (People v. Doria, 301 SCRA 668, Jan. 22, 1999, En Banc [Puno, J.]) VALID WARRANTLESS ARRESTS 1. When the person to be arrested has committed, is actually committing, or is about to commit an offense in the presence of the arresting officer. (in flagrante delicto) 2. When an offense has in fact just been committed and the arresting officer has personal knowledge of facts indicating that the person to be arrested has committed it. (hot pursuit) 3. When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. Waiver of an invalid arrest: When a person who is detained applies for bail, he is deemed to have waived any irregularity which may have occurred in relation to his arrest. However, when a person who is detained applies for bail, before he enters a plea, he is not barred from later questioning the legality of his arrest. 4. Hot pursuit A. The pursuit of the offender by the arresting officer must be continuous from the time of the commission of the

offense to the time of the arrest. B. There must be no supervening event which breaks the continuity of the chase. 5. Stop and frisk When a policeman observes suspicious activity which leads him to believe that a crime is about to be committed, he can investigate the suspicious looking person and may frisk him for weapons as a measure of self-protection. Should he find, however, a weapon on the suspect which is unlicensed, he can arrest such person then and there for having committed an offense in the officers presence. NOTE: Probable cause is the minimal requirement for the validity of either a warrantless arrest or a warrantless search Distinguish determination of probable cause by the prosecutor and determination of probable cause by the judge. PROSECUTO R whether there is a reasonable ground to believe that the accused is guilty of the offense charged and should be held for trial JUDGE whether a warrant of arrest should be issued against the accused, i.e., whether there is a necessity for placing under immediate custody

Purpose

The particularization of the description of the place to be searched may properly be done only by the Judge, and only in the warrant itself; it cannot be left to the discretion of the police officers conducting the search. What is material in determining the validity of a search is the place stated in the warrant itself, not what applicants had in their thoughts, or had represented in the proofs they submitted to the court issuing the warrant. (People v. Court of Appeals, 291 SCRA 400, June 26, 1998 [Narvasa]) The constitutional protection refers to the immunity of one's person from interference by government and it cannot be extended to acts committed by private individuals so as to bring it within the ambit of alleged unlawful intrusion. (People v. Mendoza, 301 SCRA 66, Jan. 18, 1999, 1st Div. [Melo]) Regional Trial Courts are devoid of any competence to pass upon the validity or regularity of

seizure and forfeiture proceedings conducted by the Bureau of Customs and to enjoin or otherwise interfere with these proceedings. The Collector of Customs sitting in seizure and forfeiture proceedings has exclusive jurisdiction to hear and determine all questions touching on the seizure and forfeiture of dutiable goods. The RTCs are precluded from assuming cognizance over such matters even through petitions of certiorari, prohibition or mandamus. Sec.3. (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 proceedings. R.A. 4200 (Anti-Wiretapping Act) The law does not distinguish between a party to the private communication or a third person. Hence, both a party and a third person could be held liable under R.A. 4200 if they commit any of the prohibited acts under R.A. 4200 (Ramirez v. CA) The use of a telephone extension to overhear a private conversation is not a violation of R.A. 4200 because it is not similar to any of the prohibited devices under the law. Also, a telephone extension is not purposely installed for the purpose of secretly intercepting or recording private communication. (Gaanan v. IAC, 145 SCRA 112) Types of communication protected: Letters, messages, telephone calls, telegrams and the like. Exclusionary rule: Any evidence obtained shall be inadmissible for any purpose in any proceeding. However, in the absence of governmental interference, the protection against unreasonable search and seizure cannot be extended to acts committed by private individuals. Constitutional right to privacy The essence of privacy is the right to be let alone. It is protected by the guarantee of due process over liberty, the right against unreasonable searches and seizures, the right to privacy of communications, liberty of abode, the right to form associations, and the right against self incrimination. (Ople v. Torres, G.R. No. 127685, July 23, 1998 [Puno]) Zones of privacy protected in our laws The Civil Code provides that [e]very person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons and punishes as actionable torts several acts by a person of meddling and prying into the privacy of another. It also holds a public officer or employee or any private individual liable for damages for

any violation of the rights and liberties of another person, and recognizes the privacy of letters and other private communications. The RPC makes a crime the violation of secrets by an officer, the revelation of trade and industrial secrets, and trespass to dwelling. Invasion of privacy is an offense in special laws like the Anti-Wiretapping Law, the Secrecy of Bank Deposits and the Intellectual Property Code. The Rules of Court on privileged communication likewise recognize the privacy of certain information (Section 24, Rule 130[c], Revised Rules on Evidence). (Ople v. Torres, G.R. No. 127685, July 23, 1998 [Puno]) In camera inspection of bank accounts be allowed under the following circumstances: 1) 2) 3) 4) 5) Where the depositor consents in writing; Impeachment cases; By court order in bribery or dereliction of duty cases against public officials; Deposit is subject of litigation; Sec. 8, R.A. No. 3019, in cases of unexplained wealth as held in the case of PNB v. Gancayco (122 Phil. 503, 508 [1965]).

Requisites: 1. There must be a pending case before a court of competent jurisdiction. 2. Account must be clearly identified 3. Inspection must be limited to the subject matter of the pending case before the court of competent jurisdiction 4. Bank personnel and account holder must be notified to be present during the inspection, and 5. Such inspection may cover only the account identified in the pending case. Exceptions to the absolute confidentiality of bank deposits: 1) In an examination made in the course of a special or general examination of a bank that is specifically authorized by the Monetary Board after being satisfied that there is reasonable ground to believe that a bank fraud or serious irregularity has been or is being committed and that it is necessary to look into the deposit to establish such fraud or irregularity, 2) In an examination made by an independent auditor hired by the bank to conduct its regular audit provided that the examination is for audit purposes only and the results thereof shall be for the exclusive use of the bank, 3) Upon written permission of the depositor, 4) In cases of impeachment, 5) Upon order of a competent court in cases of bribery or dereliction of duty of public officials, or 6) In cases where the money deposited or invested is the subject matter of the litigation. Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or of the right of the people peaceably to assemble and petition the government for redress of grievances. Protected speech includes every form of expression, whether oral, written, tape or disc recorded. It includes motion pictures as well as what is known as symbolic speech such as the wearing of an armband as a symbol of protest. Peaceful picketing has also been included within the meaning of speech. Prohibitions under Section 4 1. Prohibition against PRIOR RESTRAINT 2. Prohibition against SUBSEQUENT PUNISHMENT Prohibition against prior restraint

Prior restraint means official governmental restrictions on the press or other forms of expression in advance of actual publication or dissemination. Examples/forms of prior restraint: a. movie censorship b. judicial prior restraint = injunction against publication c. license taxes based on gross receipts for the privilege of engaging in the business of advertising in any newspaper d. flat license fees for the privilege of selling religious books When prohibition does not apply a. During a war. Ex. Government can prevent publication about the number/locations of its troops (Near v. Minnesota, 238 US 697) b. Obscene publications. c. Security of community life may be protected against incitements to acts of violence or overthrow by force of orderly government When is a Government control-based regulation justified? a. It is within the constitutional power of the government; b. It furthers an important or substantial government interest; c. The governmental interest is unrelated to the suppression of free expression; and d. The incidental restriction is no greater than is essential to the furtherance of the interest Standards for allowable subsequent punishment TEST Dangerous Tendency Test Clear and Present Danger Test CRITERION There should be a RATIONAL CONNECTION between the speech and the evil apprehended. (focus on CONTENT) There should be a clear and present danger that the words when used under such circumstances are of such a nature as to create a CLEAR AND PRESENT DANGER that they will bring about the substantive evils that the State has a right to prevent. (focus on CONTENT & CONTEXT) The courts should BALANCE the PUBLIC INTEREST served by legislation on one hand and the FREEDOM OF SPEECH (or any other constitutional right) on the other. The courts w ill then decide where the greater weight should be placed. (focus on weighing Government and Private interest

Balancing of Interests Test

Freedom of Speech - The doctrine on freedom of speech was formulated primarily for the protection of core

speech, i.e. speech which communicates political, social or religious ideas. These enjoy the same degree of protection. Commercial speech, however, does not. Commercial Speech A communication which no more than proposes a commercial transaction. To enjoy the protection: a. It must not be false or misleading; and b. It should not propose an illegal transaction. Even truthful and lawful commercial speech may be regulated if: a. Government has a substantial interest to protect; b. The regulation directly advances that interest; and c. It is not more extensive than is necessary to protect that interest. (Central Hudson Gas and Electric Corp. v. Public Service Commission of NY, 447 US 557) Unprotected Speech 1. LIBEL A. FAIR COMMENT (U.S. Rule). These are statements of OPINION, not of fact, and are not considered actionable, even if the words used are neither mild nor temperate. What is important is that the opinion is the true and honest opinion of the person. The statements are not used to attack personalities but to give ones opinion on decisions and actions. Fair commentaries on matters of public interest are privileged and constitute a valid defense in an action for libel or slander. The doctrine of fair comment means that while in general, every discreditable imputation publicly made is deemed false, because every man is presumed innocent until his guilt is judicially proved, and every false imputation is deemed malicious, nevertheless, when the discreditable imputation is directed against a public person in his public capacity, it is not necessarily actionable; unless it be a false allegation of fact or a comment based on a false supposition. If the comment is an expression of opinion, based on facts, then it is immaterial that the opinion happens to be mistaken as long as it might reasonably be inferred from the facts. (Borjal v. CA, 301 SCRA 1) disregard of whether it was false or not. The raison detre for the New York Times doctrine was that to require critics of official conduct to guarantee the truth of all their factual assertions on pain of libel judgments would lead to self-censorship, since would-be critics would be deterred from voicing out their criticisms even if such were believed to be true, or were in fact true, because of doubt whether it could be proved or because of fear of the expense of having to prove it. (Borjal v. CA,supra.) B. OPINIONS. With respect to public personalities (politicians, actors, anyone with a connection to a newsworthy event), opinions can be aired regarding their public actuations. Comment on their private lives, if not germane to their public personae, are not protected. 2. OBSCENITY A. Test for obscenity (Miller v. California) i. Whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest.

ii. Whether the work depicts or describes, in a patently offensive way, sexual conduct, specifically defined by law. iii. Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value. B. Procedure for seizure of allegedly obscene publications i. Authorities must apply for issuance of search warrant. ii. iii. iv. v. vi. Court must be convinced that the materials are obscene. Apply clear and present danger test. Judge will determine whether they are in fact obscene. Judge will issue a search warrant. Proper action should be filed under Art. 201 of the RPC. Conviction is subject to appeal.

Raison detre for the New York Times v. Sullivan (376 US 254) holding that honest criticisms on the conduct of public officials and public figures are insulated from libel judgments. The guarantees of freedom of speech and press prohibit a public official or public figure from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with actual malice, i.e., with knowledge that it was false or with reckless Content-based Restrictions imposed because of the content of the speech these restrictions are censorial and therefore they bear a heavy Presumption of Constitutional invalidity they will be tested for possible overbreadth and vagueness Content-neutral Restrictions not concerned with the content of the speech these regulations need only a substantial governmental interest to support them

distort public debate, have improper motivation, and are usually imposed because of fear of how people will react to a particular speech

the clear-and-present danger rule is inappropriate as a test for determining the constitutional validity of laws no such reasons underlie content neutral regulations like regulation of time, place and manner of holding public assemblies under B.P. Blg 880 (Public

Assembly 1985)

Act

of

Public Figue X x x a person who, by his accomplishments, fame, mode of living, or by adopting a profession or calling which gives the public a legitimate interest in his doings, his affairs and his character, has become a public personage. He is, in other words, a celebrity. Obviously, to be included in these categories are those who have achieved some degree of reputation by appearing before the public, as in the case of an actor, a professional athlete, or any other entertainer. The list is, however, broader than this. It includes public officers, famous inventors and explorers, war heroes and even ordinary soldiers, or infant prodigy. It includes, in short, anyone who has arrived at a position where the public attention is focused upon him as a person. (Borjal v. CA, supra)

Right of Assembly and Petition 1. The standards for allowable impairment of speech and press also apply to the right of assembly and petition. 2. Rules on assembly in public places: i. Applicant should inform the licensing authority of the date, the public place where and the time when the assembly will take place. ii. The application should be filed ahead of time to enable the public official concerned to appraise whether there are valid objections to the grant of the permit or to its grant, but in another public place. The grant or refusal should be based on the application of the Clear and Present Danger Test. iii. If the public authority is of the view that there is an imminent and grave danger of a substantive evil, the applicants must be heard on the matter. iv. The decision of the public authority, whether favorable or adverse, must be transmitted to the applicants at the earliest opportunity so that they may have recourse to the proper judicial authority. 3. Rules on assembly in private properties: Only the consent of the owner of the property or person entitled to possession thereof is required. BAYAN vs. ERMITA (GR No. 169838); Jesus del Prado vs. Ermita (GR No. 169848); KMU vs. Hon. Exec. Sec. (GR No. 169881), April 25, 2006 FACTS: Petitioners come in three groups. All petitioners assail Batas Pambansa No. 880, (entitled An Act Ensuring The Free Exercise By The People Of Their Right Peaceably To Assemble And Petition The Government [And] For Other Purposes) some of them in toto and others only

Sections 4, 5, 6, 12, 13(a), and 14(a), as well as the policy of CPR on the following grounds: (a) That it is a violation of the Constitution and the International Covenant on Civil and Political Rights and other human rights treaties of which the Philippines is a signatory; (b) The law delegates powers to the Mayor without providing clear standards. The two standards stated in the laws (clear and present danger and imminent and grave danger) are inconsistent. (c) It also curtails the choice of venue and is thus repugnant to the freedom of expression clause as the time and place of a public assembly form part of the message for which the expression is sought. (d)It is unconstitutional as it is a curtailment of the right to peacefully assemble and petition for redress of grievances because it puts a condition for the valid exercise of that right. (e) It also characterizes public assemblies without a permit as illegal and penalizes them and allows their dispersal. Thus, its provisions are not mere regulations but are actually prohibitions. (f) That the Constitution sets no limits on the right to assembly and therefore B.P. No. 880 cannot put the prior requirement of securing a permit. And even assuming that the legislature can set limits to this right, the limits provided are unreasonable: First, allowing the Mayor to deny the permit on clear and convincing evidence of a clear and present danger is too comprehensive. Second, the five-day requirement to apply for a permit is too long as certain events require instant public assembly, otherwise interest on the issue would possibly wane. Regarding the CPR policy: (a) It is void for being an ultra vires act that alters the standard of maximum tolerance set forth in B.P. No. 880, aside from being void for being vague and for lack of publication. (b) They argue that it is preemptive, that the government takes action even before the rallyists can perform their act, and that no law, ordinance or executive order permit on the basis of a rally's program content or the statements of the speakers therein, except under the constitutional precept of the "clear

and present danger test." The status of B.P. No. 880 as a content-neutral regulation has been recognized in Osmea v. Comelec. (d) Adiong v. Comelec held that B.P. No. 880 is a content-neutral regulation of the time, place and manner of holding public assemblies and the law passes the test for such regulation, namely, these regulations need only a substantial governmental interest to support them. (e) Sangalang v. Intermediate Appellate Court held that a local chief executive has the authority to exercise police power to meet "the demands of the common good in terms of traffic decongestion and public convenience." Furthermore, the discretion given to the mayor is narrowly circumscribed by Sections 5 (d), and 6 (a), (b), (c), (d), (e), 13 and 15 of the law. (f) The standards set forth in the law are not inconsistent. "Clear and convincing evidence that the public assembly will create a clear and present danger to public order, public safety, public convenience, public

morals or public health" and "imminent and grave danger of a substantive evil" both express the meaning of the "clear and present danger test." (g) CPR is simply the responsible and judicious use of means allowed by existing laws and ordinances to protect public interest and restore public order. Thus, it is not accurate to call it a new rule but rather it is a more pro-active and dynamic enforcement of existing laws, regulations and ordinances to prevent chaos in the streets. It does not replace the rule of maximum tolerance in B.P. No. 880. (h) That the petition should be dismissed on the ground that Republic Act No. 7160 gives the Mayor power to deny a permit independently of B.P. No. 880; that his denials of permits were under the "clear and present danger" rule as there was a clamor to stop rallies that disrupt the economy and to protect the lives of other people. ISSUE: Whether or not the BP 880 and CPR policy are unconstitutional? HELD: As stated in the constitution Section 4 of Article III:: SEC. 4. 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. The first point to mark is that the right to peaceably assemble and petition for redress of grievances is, together with freedom of speech, of expression, and of the press, a right that enjoys primacy in the realm of constitutional protection. For these rights constitute the very basis of a functional democratic polity, without which all the other rights would be meaningless and unprotected. Will all the cases decided by the SC it had already upheld the right to assembly and petition. The Court likewise sustained the primacy of freedom of speech and to assembly and petition over comfort and convenience in the use of streets and parks. Next, however, it must be remembered that the right, while sacrosanct, is not absolute. But it is a settled principle growing out of the nature of well-ordered civil societies that the exercise of those rights is not absolute for it may be so regulated that it shall not be injurious to the equal enjoyment of others

having equal rights, nor injurious to the rights of the community or society. The power to regulate the exercise of such and other constitutional rights is termed the sovereign "police power," which is the power to prescribe regulations, to promote the health, morals, peace, education, good order or safety, and general welfare of the people. It is very clear, therefore, that B.P. No. 880 is not an absolute ban of public assemblies but a restriction that simply regulates the time, place and manner of the assemblies. A fair and impartial reading of B.P. No. 880 thus readily shows that it refers to all kinds of public assemblies that would use public places. The reference to "lawful cause" does not make it content-based because assemblies really have to be for lawful causes; otherwise they would not be "peaceable" and entitled to protection. Neither are the words "opinion," "protesting" and "influencing" in the definition of public assembly content based, since they can refer to any subject. The words "petitioning the government for redress of grievances" come from the wording of the Constitution, so its use cannot be avoided. Finally, maximum tolerance is for the protection and benefit of all rallyists and is independent of the content of the expressions in the rally.

Furthermore, the permit can only be denied on the ground of clear and present danger to public order, public safety, public convenience, public morals or public health. This is a recognized exception to the exercise of the right even under the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. Not every expression of opinion is a public assembly. The law refers to "rally, demonstration, march, parade, procession or any other form of mass or concerted action held in a public place." So it does not cover any and all kinds of gatherings. Neither is the law overbroad. It regulates the exercise of the right to peaceful assembly and petition only to the extent needed to avoid a clear and present danger of the substantive evils Congress has the right to prevent. As to the delegation of powers to the mayor, the law provides a precise and sufficient standard the clear and present danger test stated in Sec. 6(a). The reference to "imminent and grave danger of a substantive evil" in Sec. 6(c) substantially means the same thing and is not an inconsistent standard. As to whether respondent Mayor has the same power independently under Republic Act No. 7160 is thus not necessary to resolve in these proceedings, and was not pursued by the parties in their arguments. The Court now comes to the matter of the CPR. As stated earlier, the Solicitor General has conceded that the use of the term should now be discontinued, since it does not mean anything other than the maximum tolerance policy set forth in B.P. No. 880. At any rate, the Court rules that in view of the maximum tolerance mandated by B.P. No. 880, CPR serves no valid purpose if it means the same thing as maximum tolerance and is illegal if it means something else. Accordingly, what is to be followed is and should be that mandated by the law itself, namely, maximum tolerance, which specifically means the highest degree of restraint that the military, police and other peace keeping authorities shall observe during a public assembly or in the dispersal of the same under Section 3 Furthermore, there is need to address the situation adverted to by petitioners where mayors do not act on applications for a

permit and when the police demand a permit and the rallyists could not produce one, the rally is immediately dispersed. In such a situation, as a necessary consequence and part of maximum tolerance, rallyists who can show the police an application duly filed on a given date can, after two days from said date, rally in accordance with their application without the need to show a permit, the grant of the permit being then presumed under the law, and it will be the burden of the authorities to show that there has been a denial of the application, in which case the rally may be peacefully dispersed following the procedure of maximum tolerance prescribed by the law. In sum, this Court reiterates its basic policy of upholding the fundamental rights of our people, especially freedom of expression and freedom of assembly. In several policy addresses, Chief Justice Artemio V. Panganiban has repeatedly vowed to uphold the liberty of our people and to nurture their prosperity. He said that "in cases involving liberty, the scales of justice should weigh heavily against the government and in favor

of the poor, the oppressed, the marginalized, the dispossessed and the weak. Indeed, laws and actions that restrict fundamental rights come to the courts with a heavy presumption against their validity. These laws and actions are subjected to heightened scrutiny." For this reason, the so-called calibrated preemptive response policy has no place in our legal firmament and must be struck down as a darkness that shrouds freedom. It merely confuses our people and is used by some police agents to justify abuses. On the other hand, B.P. No. 880 cannot be condemned as unconstitutional; it does not curtail or unduly restrict freedoms; it merely regulates the use of public places as to the time, place and manner of assemblies. Far from being insidious, "maximum tolerance" is for the benefit of rallyists, not the government. The delegation to the mayors of the power to issue rally "permits" is valid because it is subject to the constitutionallysound "clear and present danger" standard. In this Decision, the Court goes even one step further in safeguarding liberty by giving local governments a deadline of 30 days within which to designate specific freedom

parks as provided under B.P. No. 880. If, after that period, no such parks are so identified in accordance with Section 15 of the law, all public parks and plazas of the municipality or city concerned shall in effect be deemed freedom parks; no prior permit of whatever kind shall be required to hold an assembly therein. The only requirement will be written notices to the police and the mayor's office to allow proper coordination and orderly activities. WHEREFORE, the petitions are GRANTED in part, and respondents, more particularly the Secretary of the Interior and Local Governments, are DIRECTED to take all necessary steps for the immediate compliance with Section 15 of Batas Pambansa No. 880 through the establishment or designation of at least one suitable freedom park or plaza in every city and municipality of the country. After thirty (30) days from the finality of this Decision, subject to the giving of advance notices, no prior permit shall be required to exercise the right to peaceably assemble and petition in the public parks or plazas of a city or municipality that has not yet complied with Section 15 of the law. Furthermore, Calibrated Preemptive Response (CPR), insofar as it would purport to differ from or be in lieu of maximum tolerance, is NULL and VOID and respondents are ENJOINED to REFRAIN from using it and to STRICTLY OBSERVE the requirements of maximum tolerance. The petitions are DISMISSED in all other respects, and the CONSTITUTIONALITY of Batas Pambansa No. 880 is SUSTAINED. Video footages of court hearings for news purposes shall be restricted and limited to shots of the courtroom, the judicial officers, the parties and their counsel taken prior to the commencement of official proceedings. No video shots or photographs shall be permitted during the trial proper. (SC En Banc Resolution Re: Live TV and Radio Coverage of the Hearing of President Aquino's Libel Case, Oct. 22, 1991) A public trial is not synonymous with publicized trial; it only implies that the court doors must be open to those who wish to come, sit in the available seats, conduct themselves with decorum and observe the trial process. (Re: Request Radio-TV coverage of the Trial in the Sandiganbayan of the Plunder Cases against the former President Joseph E. Estrada, A.M. No. 01-4-03-SC, June 29, 2001, En Banc

[Vitug]) Sec 5. 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. Clauses under Section 5 Non-establishment clause Free exercise of Religion Distinction between the clauses (School District v. Schempp, 374 US 203) Non-establishment clause SCOPE: a) State cannot set up a church; b) Cannot pass laws which aid one religion, all religions or prefer one over another; c) Cannot influence a person to go to or remain away from church against his will; nor d) Force him to profess a belief or disbelief in any religion Requisites for government aid to be allowable: a. It must have a secular legislative purpose; b. It must have a primary effect that neither advances nor inhibits religion; c. It must not require excessive entanglement with recipient institutions. Free exercise of religion clause Dual aspect of freedom of religious belief and worship: a. Freedom to believe absolute b. Freedom to act on ones belief - subject to government regulation. To compel students to take part in a flag ceremony when it is against their religious beliefs will violate their religious freedom. (Ebralinag v. The Division Superintendent of Schools of Cebu, 219 SCRA 256) The exemption of members of a religious group from the coverage of a closed shop agreement between their employer and a union is upheld because it would violate the teaching of their church not to join any labor group. (Victoriano v Elizalde Rope Workers Union, 59 SCRA 54) A pre-taped TV program shown to be attacking another religion can be reviewed by the MTRCB for when religion divides and its exercise destroys, the State should not stand still. However, MTRCB cannot squelch the speech simply because it attacks another religion. The establishment clause of freedom of religion prohibits the State from leaning towards any religion. (INC v. CA, 259 SCRA 529) To require a government permit before solicitation for religious purpose may be allowed is to lay a prior restraint on the free exercise of religion. Such restraint, if allowed, may well justify requiring a permit before a church can make Sunday collections or enforce tithing. To read the Decree, therefore, as including within its reach solicitations for religious purposes would be to construe it in a manner that it violates the Free Exercise of Religion Clause of the Constitution. (Concurring Opinion, Mendoza, V.V., J., in Centeno v. VillalonPornillos, 236 SCRA 197, Sept. 1, 1994) Purely ecclesiastical affair to which the State can not meddle? one that concerns doctrine, creed, or form of worship of the church, or the adoption and enforcement within a religious association of needful laws and regulations for the government of the membership, and the power of excluding from such associations those deemed not worthy of membership. Based on this definition, an ecclesiastical affair involves the relationship between the church and its members and relate to matters of faith, religious doctrines, worship and governance of the congregation. Examples: proceedings for excommunication, ordinations of religious ministers, administration of sacraments and other activities with attached religious significance. (Pastor D.V. Austria v. NLRC, G.R. No. 124382, Aug. 16, 1999)

Sec.6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety or public health, as may be provided by law. Rights guaranteed under Section 6: 1. Freedom to choose and change ones place of abode. 2. Freedom to travel within the country and outside. Curtailment of rights: RIGHT Liberty abode Right travel of to MANNER OF CURTAILMENT Lawful order of the court and within the limits prescribed by law. May be curtailed even by administrative officers (ex. passport officers) in the interest of national security, public safety, or public health, as may be provided by law.

Note: The right to travel and the liberty of abode are distinct from the right to return to ones country, as shown by the fact that the Declaration of Human Rights and the Covenant on Human Rights have separate guarantees for these. Hence, the right to return to ones country is not covered by the specific right to travel and liberty of abode. (Marcos v. Manglapus) LIMITATIONS: Liberty of abode upon lawful order of the court Right to travel In the interest of national security, public safety or public health, as may be provided by law; Any person on bail Sec.7. The right of the people to information on matters of public concern shall be recognized. Rights guaranteed under Section 7 1. Right to information on matters of public concern 2. Right of access to official records and documents v Persons entitled to the above rights- Only Filipino citizens.

Discretion of government - The government has discretion with respect to the authority to determine what matters are of public concern and the authority to determine the manner of access to them. Recognized restrictions on the right of the people to information: 1. National security matters 2. Intelligence information 3. Trade secrets 4. Banking transactions 5. Diplomatic correspondence 6. Executive sessions 7. Closed door cabinet meetings 8. Supreme Court deliberations (Chavez v. PCGG, 299 SCRA 744) Sec.8. 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.

The right to form associations shall not be impaired without due process of law and is thus an aspect of the right of liberty. It is also an aspect of the freedom of contract. In addition, insofar as the associations may have for their object the advancement of beliefs and ideas, the freedom of association is an aspect of the freedom of speech and expression, subject to the same limitation. The right also covers the right not to join an association. Government employees have the right to form unions. Sec.9. Private property shall not be taken for public use without just compensation. See Power of Eminent Domain Sec.10. No law impairing the obligation of contracts shall be passed. When does a law impair the obligation of contracts: If it changes the terms and conditions of a legal contract either as to the time or mode of performance If it imposes new conditions or dispenses with those expressed If it authorizes for its satisfaction something different from that provided in its terms. A mere change in PROCEDURAL REMEDIES which does not change the substance of the contract, and which still leaves an efficacious remedy for enforcement does NOT impair the obligation of contracts. A valid exercise of police power is superior to obligation of contracts. Sec.11. Free access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any person by reason of poverty. Sec.12. Rights of person under investigation for the commission of an offense. Rights of person under investigation for the Commission of an offense (MIRANDA RIGHTS) Right to be informed of his right to remain silent and of counsel Right to be reminded that if he waives his right to remain silent, anything he says can and will be used against him Right to remain silent Right to have competent and independent counsel, preferably of his own choice Right to be provided with the services of counsel if he cannot afford the services of one. No torture, force, violence, threat, intimidation or any other means which vitiate the free will shall be used against him Secret detention places, solitary incommunicado, or other similar forms of detention are prohibited Confessions or admissions obtained in violation of these rights are inadmissible as evidence. When rights are available: AFTER a person has been taken into custody or When a person is otherwise deprived of his freedom of action in any significant way. When the investigation is being conducted by the government (police, DOJ, NBI) with respect to a criminal offense. Signing of arrest reports and booking sheets. The rights under Sec. 12, Art III are available when the investigation is no longer a general inquiry unto an unsolved crime but has begun to focus on a particular suspect, as when the suspect has been taken into police custody and the police carry out a process of interrogation that lends itself to eliciting incriminating statements

When rights are not available: 1) During a police line-up. Exception: Once there is a move among the investigators to elicit admissions or confessions from the suspect. 2) During administrative investigations. 3) Confessions made by an accused at the time he voluntarily surrendered to the police or outside the context of a formal investigation. 4) Statements made to a private person. Exclusionary rule 1) Any confession or admission obtained in violation of this section shall be inadmissible in evidence against him (the accused). 2) Therefore, any evidence obtained by virtue of an illegally obtained confession is also inadmissible, being the fruit of a poisoned tree. Requisites of valid waiver: 1) Made voluntarily, knowingly, and intelligently 2) Waiver should be made in WRITING 3) Waiver should be made in the PRESENCE OF COUNSEL. What rights may be waived: 1) The right to remain silent; 2) The right to counsel Waiver must be in writing and in the presence of counsel What rights cannot be waived: 1) The right to be informed of his right to remain silent and to counsel; 2) The right to counsel when making the waiver of the right to remain silent or to counsel Duties which the arresting, detaining, inviting, or investigating officer or his companions must do and observe at the time of making an arrest and again at and during the time of the custodial interrogation. In accordance with the Constitution, jurisprudence and Republic Act No. 7438 (An Act Defining Certain Rights of Person Arrested, Detained or Under Custodial Investigation as well as the Duties of the Arresting, Detaining, and Investigating Officers and Providing Penalties for Violations Thereof,) these are the following: 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 warnings, information or communication must be in a language known to and understood by said person; 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 for 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 on 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 of 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 - 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 any one from his immediate family or by his counsel, or be visited by/confer with duly accredited national or international nongovernment 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 in

writing and in the presence of counsel, otherwise, he must be warned that the waiver is void even if he insist on his waiver and chooses to speak; 9) That 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 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 answered some questions or volunteered some statements; 11) He must also 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 admissible in evidence. (People v. Mahinay, 302 SCRA 455, Feb. 1, 1999, En Banc [Per Curiam]) Kinds of information that is required to be given by law enforcement officers to suspect during custodial investigation. [I]t is settled that ones right to be informed of the right to remain silent and to counsel contemplates the transmission of meaningful information rather just the ceremonial and perfunctory recitation of an abstract constitutional principle. It is not enough for the interrogator to merely repeat to the person under investigation the provisions of Section 12, Article III of the 1987 Constitution; the former must also explain the effects of such provision in practical terms e.g., what the person under investigation may or may not do and in a language the subject fairly understands. The right to be informed carries with it a correlative obligation on the part of the police investigator to explain, and contemplates effective communication which results in the subjects understanding of what is conveyed. Since it is comprehension that is sought to be attained, the degree of explanation required will necessarily vary and depend on the education, intelligence, and other relevant personal circumstances of the person undergoing investigation. In further ensuring the right to counsel, it is not enough that the subject is informed of such right; he should also be asked if he wants to avail of the same and should be told that he could ask for counsel if he so desired or that one could be provided him at his request. If he decides not to retain a counsel of his choice or avail of one to be provided for him and, therefore, chooses to waive his right to counsel, such waiver, to BE VALID AND EFFECTIVE, must still be made with the assistance of counsel, who, under prevailing jurisprudence must be a lawyer. (People v. Canoy, 328 SCRA 385, March 17, 2000, 1st Div. [Davide, CJ])

PAO lawyer can be considered an independent counsel within the contemplation of the Constitution considering that he is not a special counsel, public or private prosecutor, counsel of the police, or a municipal attorney whose interest is admittedly adverse to that of the accused-appellant. (People v. Bacor, 306 SCRA 522, April 30, 1999, 2nd Div. [Mendoza]) When appellant talked with the mayor as a confidant and not as a law enforcement officer, his uncounselled confession to him did not violate his constitutional rights. Thus, it has been held that the constitutional procedures on custodial investigation do not apply to a spontaneous statement, not elicited through questioning by the authorities, but given in an ordinary manner whereby appellant orally admitted having committed the crime. What the Constitution bars is the compulsory disclosure of incriminating facts or confessions. The rights under Section 12 are guaranteed to preclude the slightest use of coercion by the State as would lead the accused to admit something false, not to prevent him from freely and voluntarily telling the truth. (People v. Andan, 269 SCRA 95, March 3, 1997) Confessions made in response to questions by news reporters, not by the police or any other investigating officer, are not covered by Section 12(1) and (3) of Article III and, therefore, admissible in evidence. 2 kinds of involuntary or coerced confessions treated in this constitutional provision: (1) those which are the product of third degree methods such as torture, force, violence, threat, intimidation, which are dealt with in paragraph 2 of Section 12, and (2) those which are given without the benefit of Miranda warnings, which are the subject of paragraph 1 of the same Section 12. (People v. Obrero, 332 SCRA 190, 220 208, May 17, 2000, 2nd Div. [Mendoza]) Requisites for a valid extra-judicial confession: 1) Freely and voluntarily, without compulsion, inducement or trickery; 2) Knowingly based on an effective communication to the individual under custodial investigation of his constitutional rights; and 3) Intelligently with full appreciation of its importance and comprehension of its consequences. A lawyer provided by the investigators is deemed engaged by the accused where he never raised any objection against the formers appointment during the course of the investigation and the accused thereafter subscribes to the veracity of his statement before the swearing officer. (People v. Base, supra) The prohibition for custodial investigation conducted without the assistance of counsel does not extend to a person in a police line-up because that stage of an investigation is not yet a part of custodial investigation. Custodial investigation commences when a person is taken into custody and is singled out as a suspect in the commission of the crime under investigation and the police officers begin to ask questions on the suspects participation therein and which tend to elicit an admission. The stage of an investigation wherein a person is asked to stand in a police line-up has been held to be outside the mantle of protection of the right to counsel because it involves a general inquiry into an unsolved crime and is purely investigatory in nature. It has also been held that an uncounselled identification at the police line-up does not preclude the admissibility of in-court identification (People v. Pavillare, 329 SCRA 684, 694-695, April 5, 2000, En Banc [Per Curiam])

Sec.13. Right to bail BAIL Security given for the release of a person in custody of law, furnished by him or a bondsman, to guarantee his appearance before any court as required under conditions specified under the rules of court (Sec 1, Rule 114, Revised Rules of Criminal Procedure) Who are entitled to bail: 1) All persons ACTUALLY DETAINED 2) shall, BEFORE CONVICTION 3) Be entitled to bail. Who are not entitled to bail: 1) Persons charged with offenses PUNISHABLE by RECLUSION PERPETUA when evidence of guilt is strong 2) Persons CONVICTED by the trial court. Bail is only discretionary pending appeal. 3) Persons who are members of the AFP facing a court martial. Other rights in relation to bail: a) The right to bail shall NOT be impaired even when the privilege of the writ of habeas corpus is suspended b) Excessive bail shall not be required

BAIL, A MATTER OF RIGHT (SEC.4, RULE 114) All persons in custody shall be admitted to bail as a matter of right, with sufficient sureties, or be released recognizance as prescribed by law or this rule: (a) Before or after conviction by the MTC; and (b) Before conviction of the RTC of an offense not punishable by death, reclusion perpetua or life imprisonment BAIL, WHEN DISCRETIONARY (SEC.5, RULE 114) Upon conviction by the RTC of an offense not punishable by death, reclusion perpetua, or life imprisonment, the court, on application, may admit the accused to bail. The court, in its discretion, may allow the accused to continue on provisional liberty after the same bail bond during the period to appeal subject to the consent of the bondsman. If the court imposed a penalty of

imprisonment exceeding 6 years but not more than 20 years, the accused shall be denied bail, or his bail previously granted shall be cancelled, upon showing by the prosecution, with notice to the accused, of the following or other similar circumstances: (a) that the accused is a recidivist, quasirecidivist, or habitual delinquent, or has committed the crime aggravated by the circumstance of reiteracion; (b) that the accused is found to have previously escaped from legal confinement, evaded sentence, or has violated the conditions of his bail without valid justification; that the accused committed the offense while on probation, parole, or under conditional pardon; (d) that the circumstances of the accused or his case indicate the probability of flight if released on bail; or (e) that there is undue risk that during the pendency of the appeal, the accused may commit another crime. Factors considered in setting the amount of bail: 1. Ability to post bail 2. Nature of the offense 3. Penalty imposed by law 4. Character and reputation of the accused 5. Health of the accused 6. Strength of the evidence 7. Probability of appearing at the trial 8. Forfeiture of previous bail bonds 9. Whether accused was a fugitive from justice when arrested 10. If accused is under bond in other cases WHEN BAIL SHALL BE DENIED (SEC.7, RULE 114)

No person, regardless of the stage of the criminal prosecution, shall be admitted to bail if: (a) charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment; AND (b) evidence of guilt is strong. Implicit limitations on the right to bail: 1. The person claiming the right must be in actual detention or custody of the law. 2. The constitutional right is available only in criminal cases, not, e.g. in deportation proceedings. Note: Right to bail is not available in the military. Apart from bail, a person may attain provisional liberty through recognizance. The absence of objection from the prosecution is never a basis for the grant of bail in such cases, for the judge has no right to presume that the prosecutor knows what he is doing on account of familiarity with the case Duties of the judge in cases of bail applications where the accused is charged with capital offense 1) Notify the prosecutor of the hearing of the application for bail or require him to submit his recommendation; 2) Conduct a hearing of the application for bail regardless of whether or not the prosecution refuses to present evidence to show that the guilt of the accused is strong for the purpose of enabling the court to exercise its sound discretion; 3) Decide whether the evidence of guilt of the accused is strong based on the summary of evidence of the prosecution; 4) If the guilt of the accused is not strong, discharge the accused upon the approval of the bail bond. Otherwise, petition should be denied. Additionally, the court's grant or refusal of bail must contain a summary of the evidence for the prosecution, on the basis of which should be formulated the judge's own conclusion on whether such evidence is strong enough to indicate the guilt of the accused. The summary thereof is considered an aspect of procedural due process for both the prosecution and the defense; its absence will invalidate the grant or the denial of the application for bail. (Joselito V. Narciso v. Flor Marie Sta. Romana-Cruz,, supra) Right to Bail in Extradition Cases If a bail can be granted in deportation cases,

we see no justification why it should not be also allowed in extradition cases. Likewise, considering that the Universal Declaration of Human Rights applies to deportation cases, there is no reason why it cannot be invoked in extradition cases. After all, both are administrative proceedings where the innocence or guilt of the person detained is not in issue. While our extradition law does not provide for the grant of bail to an extraditee, however, there is no provision prohibiting him or her from filing a motion for bail, a right to due process under the Constitution. A new standard termed, clear and convincing evidence should be used in granting bail in extradition cases.

This standard should be lower than proof beyond reasonable doubt but higher than preponderance of evidence. The potential extradite must prove by clear and convincing evidence that he is not a flight risk and will abide with all the orders and processes of the extradition court. [Govt of Hongkong v. Olalia, Jr.G.R. 153675 April 16 2007] Sec.14. Rights of an accused Rights of a person charged with a criminal offense 1. Right to due process of law 2. Right to be presumed innocent 3. Right to be heard by himself and counsel 4. Right to be informed of the nature and cause of the accusation against him 5. Right to have a speedy, impartial and public trial 6. Right to meet the witnesses face to face 7. Right to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf 8. Trial in absentia DUE PROCESS - This means that the accused can only be convicted by a tribunal which is required to comply with the stringent requirements of the rules of criminal procedure. PRESUMPTION OF INNOCENCE- The Constitution does not prohibit the legislature from providing that proof of certain facts leads to a prima facie presumption of guilt, provided that the facts proved have a reasonable connection to the ultimate fact presumed. Presumption of guilt should not be conclusive. Equipoise or Equiponderance of Evidence- evidence of both sides are equally balanced Effect in criminal prosecution : acquittal of accused because it is insufficient to overcome presumption of innocence RIGHT TO BE HEARD BY HIMSELF AND COUNSEL The right to be heard includes the following rights:

1. Right to be present at the trial A. The right to be present covers the period from ARRAIGNMENT to PROMULGATION of sentence. A. After arraignment, trial may proceed notwithstanding absence of accused, provided 2 requisites are met. Note, that trial in absentia is allowed only if the accused has been validly arraigned. i. ii. Accused has been duly notified; and His failure to appear is unjustifiable.

A. The accused may waive the right to be present at the trial by not showing up. However, the court can still compel the attendance of the accused if necessary for identification purposes. Exception: If the accused, after arraignment, has stipulated that he is indeed the person charged with the offense and named in the information, and that any time a witness refers to a name by which he is known, the witness is to be understood as referring to him. B. While the accused is entitled to be present during promulgation of judgment, the absence of his counsel during such promulgation does not affect its validity. 2. Right to counsel Right to counsel means the right to EFFECTIVE REPRESENTATION. If the accused appears at arraignment without counsel, the judge must: i. Inform the accused that he has a right to a counsel before arraignment ii. Ask the accused if he desires the aid of counsel iii. If the accused desires counsel, but cannot afford one, a counsel de oficio must be appointed iv. If the accused desires to obtain his own counsel, the court must give him a reasonable time to get one. 3. Right to an impartial judge 4. Right of confrontation and cross-examination 5. Right to compulsory process to secure the attendance of witnesses RIGHT TO BE INFORMED OF THE NATURE AND CAUSE OF ACCUSATION AGAINST HIM Purposes of the right: 1. To furnish the accused with a description of the charge against him as will enable him to make his defenses 2. To avail himself of his conviction or acquittal against a further prosecution for the same cause 3. To inform the court of the facts alleged. If the information fails to allege the material elements of the offense, the accused cannot be convicted thereof even if the prosecution is able to present evidence during the trial with respect to such elements. Description not designation of the offense is controlling Objectives of the right to be informed of the nature and cause of accusations against the accused 1. To furnish the accused with such a description of the charge against him as will enable him to make the defense; 2. To avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and 3. To inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had. (People v. Bayya, 327 SCRA 771, March 10, 2000, En Banc [Purisima]) RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC TRIAL Speedy free from vexatious, capricious and oppressive delays; Impartial accused entitled to cold neutrality of an impartial judge Public - The attendance at the trial is open to all irrespective of their relationship to the accused. However, if the evidence to be adduced is offensive to decency or public morals, the public may be excluded Factors used in determining whether the right to a speedy trial has been violated

1) 2) 3) 4) 5)

Time expired from the filing of the information Length of delay involved Reasons for the delay Assertion or non-assertion of the right by the accused Prejudice caused to the defendant.

Effect of dismissal based on the ground of violation of the accuseds right to speedy trial If the dismissal is valid, it amounts to an acquittal and can be used as basis to claim double jeopardy. This would be the effect even if the dismissal was made with the consent of the accused Remedy of the accused if his right to speedy trial has been violated He can move for the dismissal of the case. If he is detained, he can file a petition for the issuance of writ of habeas corpus. Purpose of the rule barring trial or sentence of an insane person It is for the protection of the accused, rather than that of the public. Reasons underlying it: The accuracy of the proceedings may not be assured, as an incompetent defendant who cannot comprehend the proceedings may not appreciate what information is relevant to the proof of his innocence. Moreover, he is not in a position to exercise many of the rights afforded a defendant in a criminal case Second, the fairness of the proceedings may be questioned, as there are certain basic decisions in the course of a criminal proceeding which a defendant is expected to make for himself, and one of these is his plea. Third, the dignity of the proceedings may be disrupted, for an incompetent defendant is likely to conduct himself in the courtroom in a manner which may destroy the decorum of the court. Fourth, it is important that the defendant knows why he is being punished, a comprehension which is greatly dependent upon his understanding of what occurs at trial. An incompetent defendant may not realize the moral reprehensibility of his conduct. The societal goal of institutionalized retribution may be frustrated when the force of the state is brought to bear against one who cannot comprehend its significance. (People v. Estrada, 333 SCRA 699, 718-719, June 19, 2000, En Banc [Puno]) RIGHT TO MEET WITNESS FACE TO FACE Purposes of the right: 1. To afford the accused an opportunity to cross-examine the witness 2. To allow the judge the opportunity to observe the deportment of the witness

Failure of the accused to cross-examine a witness If the failure of the accused to cross-examine a witness is due to his own fault or was not due to the fault of the prosecution, the testimony of the witness should be excluded. The right to cross-examine is demandable only during trials. Thus, it cannot be availed of during preliminary investigations. Principal exceptions to the right of confrontation 1. The admissibility of dying declarations 2. Trial in absentia under Section 14(2) 3. With respect to child testimony Essential Requisites for a valid promulgation of judgment in absentia: Judgment shall be recorded in the criminal docket; A copy must be served upon the accused or counsel. The recording of the decision in the criminal docket is tantamount to notifying the accused of the decision wherever he is. (Estrada vs. People 468 SCRA 233 Aug 25, 2005) TRIAL IN ABSENTIA Requisites: after arraignment; due notice; and unjustified absence Sec.16. All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies. Distinction between Sec.14 and Sec. 16 While the rights of an accused only apply to the trial phase of criminal cases, the right to a speedy disposition of cases covers ALL phases of JUDICIAL, QUASI-JUDICIAL or ADMINISTRATIVE proceedings. Sec.17. No person shall be compelled to be a witness against himself. When is a question incriminating: A question tends to incriminate when the answer of the accused or the witness would establish a fact which would be a necessary link in a chain of evidence to prove the commission of a crime by the accused or the witness. Distinction between an accused and an ordinary witness An accused can refuse to take the witness stand by invoking the right against self-incrimination. An ordinary witness cannot refuse to take the stand. He can only refuse to answer specific questions which would incriminate him in the commission of an offense. Scope of right 1. What is PROHIBITED is the use of physical or moral compulsion to extort communication from the witness or to otherwise elicit evidence which would not exist were it not for the actions compelled from the witness. 2. The right does NOT PROHIBIT the examination of the body of the accused or the use of findings with respect to his body as physical evidence. Hence, the fingerprinting of an accused would not violate the right against self-incrimination. However, obtaining a sample of the handwriting of the accused would violate this right if he is charged for falsification. 3. The accused cannot be compelled to produce a private document in his possession which might tend to incriminate him. However, a third person in custody of the document may be compelled to produce it. When the right can be invoked: 1. In criminal cases 2. In administrative proceedings if the accused is liable to a penalty (Ex. Forfeiture of property) 3. in legislative investigations

Who can invoke the right: Only natural persons. Judicial persons are subject to the visitorial powers of the state in order to determine compliance with the conditions of the charter granted to them. Transactional immunity A witness can no longer be prosecuted for any offense whatsoever arising out of the act or transaction. Use-and-derivative-use immunity A witness is only assured that his or her particular testimony and evidence derived from it will not be used against him or her in a subsequent prosecution. (Mapa, Jr. v. Sandiganbayan, 231 SCRA 783, 797-798, April 26, 1994, En Banc [Puno]) Sec.18. Right against involuntary servitude Definition of involuntary servitude It is every condition of enforced or compulsory service of one to another no matter under what form such servitude may be disguised. Exceptions: 1. Punishment for a crime for which the party has been duly convicted 2. Personal military or civil service in the interest of national defense 3. Return to work order issued by the DOLE Secretary or the President 4. minors under patria potestas are obliged to obey their parents 5. in naval enlistment: a person who enlists in a merchant ship may be compelled to remain in service until the end of the voyage 6. posse comitatus for the apprehension of criminals Sec.19. Prohibition against cruel, degrading and inhuman punishment When is a penalty cruel, degrading and inhuman? 1. A penalty is cruel and inhuman if it involves torture or lingering suffering. Ex. being drawn and quartered. 2. A penalty is degrading if it exposes a person to public humiliation. Ex. Being tarred and feathered, then paraded throughout town. Standards used: 1. The punishment must not be so severe as to be degrading to the dignity of human beings. 2. It must not be applied arbitrarily. 3. It must not be unacceptable to contemporary society 4. It must not be excessive, i.e. it must serve a penal purpose more effectively than a less severe punishment would. 5. excessive fine A fine is excessive, when under any circumstance; it is disproportionate to the offense. Sec.20. No person shall be imprisoned for debt or non-payment of a poll tax. Debt refers to a CONTRACTUAL obligation, whether express or implied, resulting in any liability to pay money. Thus, all other types of obligations are not within the scope of this prohibition. Thus, if an accused fails to pay the fine imposed upon him, this may result in his subsidiary imprisonment because his liability is ex delicto and not ex contractu. A FRAUDULENT debt may result in the imprisonment of the debtor if: A. The fraudulent debt constitutes a crime such as estafa and B. The accused has been duly convicted. A tax is not a debt since it is an obligation arising from law. Hence, its non-payment may be validly punished with imprisonment.

Sec.21. No person shall be twice put in jeopardy of punishment for the same offense. If an act punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act. Requisites for a valid defense of double jeopardy: CODE: ATS 1. First jeopardy must have attached prior to the second. 2. The first jeopardy must have terminated. 3. The second jeopardy must be for the same offense as that in the first. When does jeopardy ATTACH: (1st requisite) 1. A person is charged 2. Under a complaint or information sufficient in form and substance to sustain a conviction 3. Before a court of competent jurisdiction 4. After the person is arraigned 5. Such person enters a valid plea. When does jeopardy NOT attach: 1. If information does not charge any offense 2. If, upon pleading guilty, the accused presents evidence of complete self-defense, and the court thereafter acquits him without entering a new plea of not guilty for accused. 3. If the information for an offense cognizable by the RTC is filed with the MTC. 4. If a complaint filed for preliminary investigation is dismissed. When does first jeopardy TERMINATE: (2ND REQUISITE) 1. Acquittal 2. Conviction 3. Dismissal W/O the EXPRESS consent of the accused 4. Dismissal on the merits. Examples of termination of jeopardy: 1. Dismissal based on violation of the right to a speedy trial. This amounts to an acquittal. 2. Dismissal based on a demurrer to evidence. This is a dismissal on the merits. 3. Dismissal on motion of the prosecution, subsequent to a motion for reinvestigation filed by the accused. 4. Discharge of an accused to be a state witness. This amounts to an acquittal. When can the PROSECUTION appeal from an order of dismissal: 1. If dismissal is on motion of the accused. Exception: If motion is based on violation of the right to a speedy trial or on a demurrer to evidence. 2. If dismissal does NOT amount to an acquittal or dismissal on the merits 3. If the question to be passed upon is purely legal. 4. If the dismissal violates the right of due process of the prosecution. 5. If the dismissal was made with grave abuse of discretion. What are considered to be the SAME OFFENSE: (under the 1st sentence of Section 21) 1. Exact identity between the offenses charged in the first and second cases. 2. One offense is an attempt to commit or a frustration of the other offense. 3. One offense is necessarily included or necessary includes the other. Note: where a single act results in the violation of different laws or different provisions of the same law, the prosecution for one will not bar the other so long as none of the exceptions apply. Definition of double jeopardy (2nd sentence of Sec. 21) Double jeopardy will result if the act punishable under the law and the ordinance are the same. For there to be double jeopardy, it is not necessary that the offense be the same. SUPERVENING FACTS

1. A conviction for an offense will not bar a prosecution for an offense which necessarily includes the offense charged in the former information where: A. The graver offense developed due to a supervening fact arising from the same act or omission constituting the former charge. B. The facts constituting the graver offense became known or were discovered only after the filing of the former information. C. The plea of guilty to the lesser offense was made without the consent of the prosecutor and the offended party. 1. Under (1) (b), if the facts could have been discovered by the prosecution but were not discovered because of the prosecutions incompetence, it would not be considered a supervening event. Effect of appeal by the accused: If the accused appeals his conviction, he WAIVES his right to plead double jeopardy. The whole case will be open to review by the appellate court. Such court may even increase the penalties imposed on the accused by the trial court. Sec.22. No ex post facto law or bill of attainder shall be enacted. Ex-post facto law. Law making an act criminal which was not before its passage Law aggravating the penalty for a crime committed before its passage Law inflicting a greater or more severe penalty Law altering the legal rules of evidence and receive less or different testimony than what the law required at the time of commission, in order to convict accused Law assuming to regulate civil rights and remedies only, in effect imposes a penalty of deprivation of right for something which when done was lawful; and Law depriving accused of some lawful protection to which he had been entitled, such as protection of a former conviction or acquittal, or a proclamation of amnesty Note: The prohibition on ex post facto laws only applies to retrospective PENAL laws. Characteristics: Refers to criminal matters; Retroactive, and Prejudicial to the accused BILL OF ATTAINDER 1. A LEGISLATIVE act which inflicts punishment W/O JUDICIAL trial. 2. Does not need to be directed at a specifically named person. It may also refer to easily ascertainable members of a group in such a way as to inflict punishment on them without judicial trial. Elements of the bill of attainder A. There must be a LAW. B. The law imposes a PENAL burden on a NAMED INVIDIDUAL/EASILY ASCERTAINABLE MEMBERS of a GROUP. C. The penal burden is imposed DIRECTLY by the LAW W/O JUDICIAL trial. ARTICLE IV CITIZENSHIP Who are citizens of the Philippines? 1) Those who are citizens of the Philippines at the time of the adoption of the 1987 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. 4) Those who are naturalized in accordance with law. Modes of acquiring citizenship:

1) By birth a. Jus Soli acquisition of citizenship on the basis of place of birth b. Jus Sanguinis acquisition of citizenship on the basis of blood relationship 2) By Naturalization the legal act of adopting an alien and clothing him with the privilege of a nativeborn citizen. 3) By marriage Note: The Philippines follows (1b) and (2) Election of citizenship under the 1987 Constitution: Prior to the 1973 Constitution, if a Filipina married an alien, she lost her Filipino citizenship. Hence, her child would have to elect Filipino citizenship upon reaching the age of majority. Under the 1973 Constitution, however, children born of Filipino mothers were already considered Filipinos. Therefore, the provision on election of citizenship under the 1987 Constitution only applies to those persons who were born under the 1935 Constitution. In order for the children to elect Filipino citizenship, the mothers must have been Filipinos at the time of their marriage. So, if the mother was a Filipina who married an alien under the 1935 constitution and you were born before January 17, 1973, you can elect Filipino citizenship upon reaching the age of majority. When the election must be made: The election must be made within a reasonable period after reaching the age of majority. Effects of naturalization: 1) The legitimate minor children of the naturalized father become Filipinos as well. 2) The wife also becomes a Filipino citizen, provided that she does not have any disqualification which would bar her from being naturalized. Natural-born citizens: 1) Citizens of the Philippines from birth who do not need to perform any act to acquire or perfect their Philippine citizenship. 2) Those who elect Philippine citizenship under Art. IV, Sec. 1(3) of 1987 Constitution. Marriage of Filipino with an alien: 1) General Rule: The Filipino RETAINS Philippine citizenship 2) Exception: If, by their act or omission they are deemed, under the law, to have renounced it. Examples of renunciation of Philippine citizenship: 1) Voluntarily obtaining foreign passport 2) Pledging allegiance to another country (ex. by becoming a naturalized citizen of another country) How may one lose citizenship: [CODE: CONRED] By naturalization in a foreign country By express renunciation of citizenship By subscribing oath or allegiance to a foreign Constitution By serving in the armed forces of an enemy country By being a deserter of the armed forces of ones country Cancellation of certificate of naturalization. Naturalization Requirements: To be naturalized, an applicant has to prove that he possesses all the qualifications and none of the disqualifications provided by law to become a Filipino citizen. The decision granting Philippine citizenship becomes

executory only after two (2) years from its promulgation when the court is satisfied that during the intervening period, the applicant has (1) not left the Philippines; (2) has dedicated himself to a lawful calling or profession;

(3) has not been convicted of any offense or violation of government promulgated rules; or; (4) committed any act prejudicial to the interest of the nation or contrary to any government announced policies (Section 1, R.A. 530). Antonio Bengson III v. HRET [G.R. No. 142840, May 7, 2001] Naturalization (qualifications): Section 2, Act 473 provides the following qualifications: a. not less than 21 years of age on the day of the hearing of the petition; b. resided in the Philippines for a continuous period of not less than ten years; c. character: of good moral character and believes in the principles underlying the Philippine Constitution, conducted himself in a proper and irreproachable manner during the entire period of his residence in the Philippines in his relation with the constituted government as well as with the community in which he is living; a. owns real estate in the Philippines worth not less than P 5,000, or must have some known lucrative trade, profession, or lawful occupation; b. speaks and writes English or Spanish and any of the principal languages; and c. enrolled his minor children of school age, in any of the public schools or private schools recognized by the Bureau of Private Schools of the Philippines where Philippine history, government and civic are taught or prescribed as part of the school curriculum, during the entire period of the residence in the Philippines required of him prior to the hearing of his petition for naturalization as Philippine citizen. Declaration of intention must be filed with the Office of the Solicitor General one year before filing the application for naturalization. Exceptions: Those born in the Philippines and received primary and secondary education in a Philippine school Those who have resided in the Philippines for thirty years; The widow or children of the applicant who died before his application was granted Naturalization (disqualifications): Section 4, Act 473, provides the following disqualifications: a. opposed to organized government or affiliated with any association or group of persons who uphold and teach doctrines opposing all organized governments; b. defending or teaching the necessity or propriety of violence, personal assault, or assassination for the success and predominance of their ideas; c. polygamist or believer in the practice of polygamy; d. convicted of any crime involving moral turpitude; e. suffering from mental alienation or incurable contagious diseases; f. who, during the period of his residence in the Philippines (or not less than six months before filing his application), have not mingled socially with the Filipinos, or who have not evinced a sincere desire to

learn and embrace the customs, traditions and ideals of the Filipinos; g. a citizen or subject of a nation with whom the Philippines is at war, during the period of such war; h. a citizen or subject of a foreign country whose laws do not grant Filipinos the right to become naturalized citizens or subjects thereof. (no reciprocity) Effects of naturalization: ON THE WIFE Vests citizenship on the wife who might herself be lawfully naturalized; she need not prove her qualifications but only that she is not disqualified. (Moy Ya Lim Yao v. Comm of Immigration, 41 SCRA 292) ON THE MINOR CHILDREN if born in the Philippines automatically becomes a citizen if born abroad before the naturalization of the father residing in RP at the time of naturalization automatically become citizens if not residing in RP at the time of naturalization considered citizen only during minority, unless begins to reside permanently in the Philippines; if born outside the Philippines after parents naturalization considered Filipino, provided registered as such before any Philippine consulate within 1 year after attaining majority age and takes oath of allegiance GROUNDS FOR DENATURALIZATION naturalization certificate obtained fraudulently or illegally; if, within 5 years, he returns to his native country or to some foreign country and establishes residence therein; naturalization obtained through invalid declaration of intention; minor children failed to graduate through the fault of the parents either by neglecting support or by transferring them to another school; and allowing himself to be used as dummy Effects of Denaturalization: if ground affects intrinsic validity of proceedings denaturalization shall divest wife and children of their derivative naturalization; and if ground is personal the wife and children shall retain citizenship 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. Renunciation of Philippine citizenship - must be express Reacquisition of citizenship: 1. By naturalization; 2. By repatriation; Repatriation. RA 8171 is an act providing for the repatriation of: Filipino women who have lost their Philippine citizenship by marriage to aliens and; Natural-born Filipinos who have lost their Philippine citizenship on account of political or economic necessity. simply consists of the taking of an oath of allegiance to the Republic of the Philippines and registering said oath in the Local Civil Registry of the place where the person concerned resides or last resided.

Effect of repatriation recovery of or return to his original status before he lost his Philippine citizenship 1. By direct act of Congress RA 9225 also known as the Citizenship Retention and Re-acquisition Act of 2003, (Dual Citizenship Act) provides that, upon taking the oath of allegiance to the Republic: Natural-born citizens of the Philippines who have lost their Philippine citizenship by reason of their naturalization as citizens of a foreign country are deemed to have re-acquired Philippine citizenship; and Natural-born citizens of the Philippines who, after the effectivity of the said RA become citizens of a foreign country shall retain their Philippine citizenship The passage of R.A. 9225 makes it possible for Filipinos to hold dual citizenship through means other than by birth. Derivative Citizenship The unmarried child, whether legitimate, illegitimate or adopted, below eighteen (18) years of age, of those who re-acquire Philippine citizenship upon effectivity of the said RA shall be deemed citizens of the Philippines DUAL CITIZENSHIP 1. Arises when, as a result of concurrent application of the different laws of two or more states, a person is simultaneously considered a citizen of said sates. 2. Involuntary DUAL ALLEGIANCE 1. Refers to the situation where a person simultaneously owes, by some positive act, loyalty to two or more states

2. Result of an individual's volition and is prohibited by the Constitution

Note: The phrase dual citizenship in R.A. No. 7160, Section 40(d) (Local Government Code) must be understood as referring to dual allegiance. Consequently, persons with mere dual citizenship do not fall under this disqualification. Unlike those with dual allegiance, who must, be subject to strict process with respect to the termination of their status, for candidates with dual citizenship, it should suffice if, upon the filing of their certificate of candidacy, they elect Philippine citizenship to terminate their status as persons with dual citizenship considering that their condition is the unavoidable consequence of conflicting laws of different states. Instances when a citizen of the Philippines may possess dual citizenship under the Constitution.

1. Those born of Filipino fathers and/or mothers in foreign countries which follow the principle of jus soli;
2. Those born in the Philippines of Filipino mothers and alien fathers if by the laws of their fathers country such children are citizens of that country; 3. Those who marry aliens if by the laws of the latters country the former are considered citizens, unless

by their act or omission they are deemed to have renounced Philippine citizenship. ARTICLE V SUFFRAGE Qualifications: CD18RR 1. Citizen of the Philippines 2. Not Disqualified by law 3. At least 18 years old 4. Resident of the Philippines for at least 1 year 5. Resident of the place wherein he/she proposes to vote for at least 6 months immediately preceding the election. Note: NO literacy, property or other substantive requirement can be imposed on the exercise of suffrage. Residency requirement Residency, under Article V has 2 senses: 1. DOMICILE This is in reference to the 1 year residency requirement in the Philippines. The principal elements of domicile physical presence in the country and intention to adopt it as ones domicile must concur 2. TEMPORARY RESIDENCE This is in reference to the 6 month residency requirement in the place where one wants to vote. In this case, residence can either mean domicile or temporary residence. Disqualifications: 1. Any person sentenced by final judgment to imprisonment of not less than 1 year, which disability has not been removed by plenary pardon. 2. Any person adjudged by final judgment of having violated his allegiance to the Republic of the Philippines. 3. Insane or feeble-minded persons. Note: Under the 2nd disqualification, the right to vote is automatically re-acquired upon the expiration of 5 years after the service of sentence. ARTICLE VI THE LEGISLATIVE DEPARTMENT Definition of Legislative Power: The authority to make laws and to alter or repeal them. Vested in Congress, except to the extent reserved to the people by the provisions on initiative and referendum Classification of legislative power: Original Possessed by the people in their sovereign capacity Delegated Possessed by Congress and other legislative bodies by virtue of the Constitution Constituent The power to amend or revise the Constitution Ordinary The power to pass ordinary laws Note: The original legislative power of the people is exercised via initiative and referendum. In this manner, people can directly propose and enact laws, or approve or reject any act or law passed by Congress or a local government unit. Exceptions to non-delegability of legislative power 1. Delegation of tariff powers to the President (Art. VI, sec. 28 [2]) 2. Delegation of emergency powers to the President. (Art.VI, sec.23[2]) 3. Delegation to the people at large 4. Delegation to local governments (Art. X and RA 7160) 5. Delegation to administrative bodies CODE: PLATE

What may Congress delegate: Congress can only delegate, usually to administrative agencies, RULE-MAKING POWER or LAW EXECUTION. This involves either of two tasks for the administrative agencies: 1. Filling up the details on an otherwise complete statute; or 2. Ascertaining the facts necessary to bring a contingent law or provision into actual operation.

COMPOSITION Representative Not more than 250 members 35 yrs. Old 25 yrs. Old Natural-born citizen of the Philippines Able to read and write Registered voter Registered voter in the district in which he shall be elected n/a to party-list Resident of the Resident of the said Philippines for at district for at least 1 least 2 yrs yr immediately immediately preceding election preceding the n/a to party-list election Term of 6 yrs Term of 3 yrs Unless otherwise provided by law, Term of office commence at noon of June 30 next following the election Term limit of not Term limit of not more than 2 more than 3 consecutive years consecutive years Voluntary renunciation of 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 Note: The qualifications of both Senators and Members of the House are limited to those provided by the Constitution. Congress cannot, by law, add or subtract from these qualifications. House of Representatives not more than 250 members consisting of: District Representatives elected from legislative districts apportioned among the provinces, cities and the Metropolitan Manila area; Party-list Representatives constitute 20% of the total number of representatives elected through a party-list system of registered national, regional and sectoral parties or organizations. Election of 250 members Elected from legislative districts apportioned among the provinces, cities and the Metropolitan Manila area. Legislative districts are apportioned in accordance with the number of inhabitants of each area and on the basis of a uniform and progressive ratio. Senator 24 Senators

a. b. c. d.

District shall comprise, as far as practicable, contiguous, compact and adjacent territory; City with at least 250,000 inhabitants - least one representative. Province - at least one representative. Legislative districts shall be re-apportioned by Congress within 3 years after the return of each census. According to Jack, however, while the apportionment of districts is NOT a political question, the judiciary CANNOT compel Congress to do this. e. The standards used to determine the apportionment of legislative districts is meant to prevent gerrymandering, which is the formation of a legislative district out of separate territories so as to favor a particular candidate or party. DISTRICT REPRESENTATIV E Elected according to legislative district by the constitutes of such district PARTY-LIST REPRESENTATIVE Elected nationally, with party-list organizations garnering at least 2% of all the votes cast for the partylist system entitled to 1 seat, which is increased according to proportional representation but is in no way to exceed 3 seats per organization Must be a resident of his legislative district for at least 1 year immediately before the election Elected personally, i.e. by name requirement No special residency

Does not lose seat if he/she

Voted upon by party or organization. It is only when a party is entitled to representation that it designates who will sit as representative. If he/she changes party or

changes party or affiliation

In case of vacancy, a special election may be held provided that the vacancy takes place at least 1 year before the next election A district representative is not prevented from running again as a district representative if he/she lost during the previous election A change in affiliation within months prior to election does not prevent A district representative from running under his new party.

affiliation, loses his seat, in which case, he/she will be substituted by another qualified person in the party/ organization based on the list submitted to the COMELEC In case of vacancy, a substitution will be made within the party, based on the list submitted to the COMELEC a party-list representative cannot sit if he ran and lost in the previous election

A change in affiliation within 6 months prior to election prohibits the party-list representative from sitting as representative under his new party or organization

Party-List Representatives 1. Constitute 20% of the total number of representatives, including those under the party-list system (thus a maximum of 50 party-list members of the House) 1. However, for 3 consecutive terms from 2 February 1987, 25 seats shall be allotted to sectoral representatives. Under Art. XVIII, Sec. 7, the sectoral representatives are to be appointed by the President until legislation otherwise provides. 1. Mechanics of the party-list system: a. Registered organizations submit a list of candidates in order of priority. b. During the elections, these organizations are voted for at large. c. The number of seats that each organization gets out of the 20% allotted to the system depends on the number of votes they get. Inviolable parameters to determine the winners in a Philippine-style party-list election

The twenty percent allocation the combined number of all partylist congressmen shall not exceed 20% of the total membership of the House of Representatives, including those elected under the party list. The two percent threshold - only those garnering a minimum of two percent of the total valid votes cast for the party-list system are "qualified" to have a seat in the House of Representatives. The three seat limit - each qualified party, regardless of the number of votes it actually obtained, is entitled to a maximum of three seats; that is, one "qualifying" and two additional seats. Proportional representation - the additional seats which a qualified party is entitled to shall be computed "in proportion to their total number of votes." (Veterans Federation Party v. COMELEC, G.R. No. 136781 and Companion Cases, Oct. 6, 2000, En Banc [Panganiban])

Guidelines for screening Party-List Participants First, the political party, sector, organization or coalition must represent the marginalized and underrepresented groups identified in Section 5 of RA 7941. In other words, it must show that it represents and seeks to uplift marginalized and underrepresented sectors. Second, while even major political parties are expressly allowed by RA 7941 and the Constitution to participate in the party-list system, they must show, however, that they represent the interests of the marginalized and underrepresented. Third, the Court notes the express constitutional provision that the religious sector may not be represented in the partylist system. Fourth, a party or an organization must not be disqualified under Section 6 of RA 7941, which enumerates the grounds for disqualification as follows: 1. It is a religious sect or denomination, organization or association organized for religious purposes;

2. It advocates violence or unlawful means to seek its goal; 3. It is a foreign party or organization; 4. It is receiving support from any foreign government, foreign political party, foundation, organization, whether directly or through any of its officers or members or indirectly through third parties for partisan election purposes; 5. It violates or fails to comply with laws, rules or regulations relating to elections; 6. It declares untruthful statements in its petition; 7. It has ceased to exist for at least one (1) year; or 8. It fails to participate in the last two (2) preceding elections or fails to obtain at least two per centum (2%) of the votes cast under the party-list system in the two (2) preceding elections for the constituency in which it had registered.

Note should be taken of paragraph 5, which disqualifies a party or group for violation of or failure to comply with election laws and regulations. Fifth, the party or organization must not be an adjunct of, or a project organized or an entity funded or assisted by, the government. Sixth, the party must not only comply with the requirements of the law; its nominees must likewise do so. Seventh, not only the candidate party or organization must represent marginalized and underrepresented sectors; so also must its nominees. Eighth, x x x while lacking a well-defined political constituency, the nominee must likewise be able to contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole. x x x (Ang Bagong Bayani OFW Labor Party v. COMELEC, G.R. No. 147589, June 26, 2001)

Term The period during which the elected officer is legally authorized to assume his office and exercise the powers thereof CANNOT be reduced

Tenure The period during which such officer actually holds his position

MAY, by law, be limited

APPORTIONMENT OF LEGISLATIVE DISTRICT Maintain proportional representation based on number of inhabitants; Each city with not less than 250 thousand inhabitants, entitled to at least one (1) representative; Each province, irrespective of the number of inhabitants, entitled to at least one (1) representative Each district must be contiguous, compact and adjacent. Gerrymandering is not allowed. Gerrymandering formation of one legislative district out of separate territories for the purpose of favoring a candidate or a party 3. Reapportionment within 3 years following return of every census. ELECTION regular SECOND Monday of May, every three years special (RA 6645) No special election will be called if vacancy occurs: At least eighteen (18) months before the next regular election for members of the Senate; At least (1) year before the next regular election for members of the House of Representatives The particular Chamber of Congress where vacancy occurs must pass either a resolution if Congress is in session or the Senate President or the Speaker must sign a certification, if Congress is not in session, Declaring the existence of the vacancy; and Calling for a special election to be held within 45 to 90 days from the date of the resolution or certification The senator or representative elected shall serve only for the unexpired term. Salaries of Senators and Members of the House Determination of Salaries: Salaries of Senators and Members of the HReps shall be determined by law. Rule on increase in salaries: No increase in their salaries shall take effect until after the EXPIRATION OF THE FULL TERM (NOT TENURE) OF ALL THE MEMBERS OF THE SENATE AND THE HOUSE OF REPRESENTATIVES APPROVING SUCH INCREASE. CONGRESSIONAL IMMUNITIES 1. Immunity from arrest: a. Legislators are privileged from arrest while Congress is in session with respect to offenses punishable by up to 6 years of imprisonment. Thus, whether Congress is in regular or special session, the immunity from arrest applies. b. If Congress is in recess, members thereof may be arrested. c. The immunity is only with respect to arrests and NOT to prosecution for criminal offenses. 1. Legislative privilege:

a. No member shall be questioned or held liable in any forum other than his/her respective Congressional body for any debate or speech in the Congress or in any Committee thereof. b. Limitation on the privilege: i. Protection is only against forum other than Congress itself. Thus for inflammatory remarks which are otherwise privileged, a member may be sanctioned by either the Senate or the House as the case may be. ii. The speech or debate must be made in performance of their duties as members of Congress. This includes speeches delivered, statements made, votes cast, as well as bills introduced, and other activities done in performance of their official duties. iii. Congress need NOT be in session when the utterance is made, as long as it forms part of legislative action, i.e. part of the deliberative and communicative process used to participate in legislative proceedings in consideration of proposed legislation or with respect to other matters with Congress jurisdiction. Adjournment Sine Die interval between the session of one Congress and that of another; Congress must stop the clock at midnight of the last day of session in order to validly pass a law The Senate is a continuing body while the House is not.. Discipline: Suspension a. Concurrence of 2/3 of ALL its members and b. Shall not exceed 60 days. Expulsion Concurrence of 2/3 of ALL its members MATTERS MANDATED BY THE CONSTITUTION TO BE ENTERED INTO THE JOURNAL yeas and nays on the third and final reading of a bill veto message of the President yeas and nays on re-passing a bill vetoed by the President; and yeas and nays on any question at the request of 1/5 of the members present Enrolled bill conclusive upon the courts as regards the tenor of the measure passed by Congress and approved by the President Journal Entry vs. Enrolled Bill Enrolled bill prevails except as to matters, which under the Constitution, must be entered into the Journal. Congressional Journals and Records: 1. The Journal is conclusive upon the courts. 2. BUT an enrolled bill prevails over the contents of the Journal. 3. An enrolled bill is the official copy of approved legislation and bears the certifications of the presiding officers of each House. Thus where the certifications are valid and are not withdrawn, the contents of the enrolled bill are conclusive upon the courts as regards the provision of that particular bill. CONGRESSIONAL ELECTORAL TRIBUNALS (SET OR HRET) Composition: 3 Supreme Court Justices designated by the Chief Justice; and 6 members of the Chamber concerned chosen on the basis of proportional representation from political parties and parties registered under the party-list system Senior Justice acts as Chairman Power of Electoral Tribunal Sole judge of all contest relating to the election, returns and qualification of their respective members; Rule-making power It is independent of the Houses of Congress and its decisions may be reviewed by the Supreme

Court only upon showing of grave abuse of discretion THE ELECTORAL TRIBUNAL The Senate and the House shall each have a Jurisdiction: 1. Each ET shall be the sole judge of all CONTESTS relating to the election, returns, and qualifications of their respective members. This includes determining the validity or invalidity of a proclamation declaring a particular candidate as the winner. 2. An election contest is one where a defeated candidate challenges the qualification and claims for himself the seat of a proclaimed winner. 3. In the absence of an election contest, the ET is without jurisdiction. However, the power of each House to expel its own members or even to defer their oath-taking until their qualifications are determined may still be exercised even without an election contest. Neither Congress nor the Courts may interfere with procedural matters relating to the functions of the ET s The ETs being independent bodies, its members may not be arbitrarily removed from their positions in the tribunal by the parties which they represent. Neither may they be removed for not voting according to party lines, since they are acting independently of Congress. The mere fact that the members of either the Senate or the House sitting on the ET are those which are sought to be disqualified due to the filing of an election contest against them does not warrant all of them from being disqualified from sitting in the ET. The Constitution is quite clear that the ET must act with both members from the SC and from the Senate or the House. If all the legislator-members of the ET were to be disqualified, the ET would not be able to fulfill its constitutional functions. Judicial review of decisions of the ETs may be had with the SC only insofar as the decision or resolution was rendered without or in excess of jurisdiction or with grave abuse of discretion constituting denial of due process. COMMISSION ON APPOINTMENTS Composition: 12 Senators and 12 Representatives, elected by each House on the basis of proportional representation from the political parties and parties and organizations registered under the party-list system represented therein. Senate President acts as ex-officio chairman Powers Acts on all appointments submitted to it within 30 session days of Congress from their submission; and Promulgates its own rules of proceedings Voting/Action 1. The chairman shall only vote in case of a tie. 2. The CA shall act on all appointments within 30 session days from their submission to Congress. 3. The Commission shall rule by a majority vote of all the Members. Jurisdiction 1. CA shall confirm the appointments by the President with respect to the following positions: a. b. c. d. Heads of the Executive Departments (except if it is the Vice-President who is appointed to the post). Ambassadors, other public ministers or consuls. Officers of the AFP from the rank of Colonel or Naval Captain: and Other officers whose appointments are vested in him by the Constitution (e.g. COMELEC members).

1. Congress CANNOT by law prescribe that the appointment of a person to an office created by such law shall

be subject to confirmation by the CA. 2. Appointments extended by the President to the above-mentioned positions while Congress is not in session shall only be effective until disapproval by the CA or until the next adjournment of Congress. Meetings of the CA 1. CA meets only while Congress is in session. 2. Meetings are held either at the call of the Chairman or a majority of all its members. 3. Since the CA is also an independent constitutional body, its rules of procedure are also outside the scope of congressional powers as well as that of the judiciary. Note: The ET and the CA shall be constituted within 30 days after the Senate and the House of Representative shall have been organized with the election of the President and the Speaker. POWERS OF CONGRESS Classification of Powers: Legislative General plenary power Specific power of appropriation Taxation and expropriation Legislative investigations Question hour Non-legislative includes power to: Canvass presidential elections Declare the existence of a state of war Delegation of emergency powers Call special election for President and Vice-President Give concurrence to treaties and amnesties Propose constitutional amendments (constituent power) Confirm certain appointments Impeach Decide the disability of the President because majority of the Cabinet dispute his assertion that he is able to discharge his duties Revoke or extend proclamation of suspension of privilege of writ of habeascorpus or declaration of martial law Power with regard to utilization of natural resources Limitations on the Powers of Congress: Substantive limitations on the content of laws Express: Bill of rights [Art III] On appropriations [Sec 25 and 29 (1) and (2), Art VI] On taxation [Sec 28 and 29 (3), Art VI; Sec 4(3), Art XIV] On constitutional appellate jurisdiction of the Supreme Court [Sec 30, Art VI] No law granting title of royalty or nobility shall be passed [Sec 31, Sec VI] No specific funds shall be appropriated or paid for use or benefit of any religion, sect, etc., except for priests, etc., assigned to AFP, penal institutions, etc [Sec 29(2), Art VI] implied: prohibition against irrepealable laws; non-delegation of powers Procedural - limitations on the manner of passing laws Only one subject, to be stated in the title of the bill [Sec 26(1), Art VI] and 3 readings on separate days; printed copies of the bill in its final form distributed to members 3 days before its passage, except if President certifies to its immediate enactment to meet a public

calamity or emergency; upon its last reading, no amendment allowed and the vote thereon taken immediately and the yeas and nays entered into the Journal [Sec 26(2), Art VI] Appropriation, revenue and tariff bills (ART Bills) shall originate exclusively in the House of Representatives (Sec 24, Art VI) shall originate exclusively in the House of Representatives the initiative for filing of ART Bills must come from the House, but it does not prohibit the filing in the Senate a substitute bill in anticipation of its receipt of the bill from the House. Corollaries of legislative power: Congress cannot pass irrepealable laws. Since Congress powers are plenary, and limited only by the Constitution, any attempt to limit the powers of future Congresses via an irrepealable law is not allowed. Congress, as a general rule, cannot delegate its legislative power. Since the people have already delegated legislative power to Congress, the latter cannot delegate it any further. POWER OF APPROPRIATION Appropriations law- a statute, the primary purpose of which is to authorize release of public funds from the treasury the existence of appropriations and the availability of funds are indispensable pre-requisites to or conditions sine qua non for the execution of government contracts Implied limitations on Appropriation Power: must specify public purpose; and sum authorized for release must be determinate, or at least determinable Constitutional limitations on special appropriations measures: must specify public purpose for which the sum was intended; and must be supported by funds actually available as certified by the National Treasurer or to be raised by corresponding revenue proposal included therein [Sec 25(4), Art VI] Constitutional Rules on General Appropriations Laws (Sec 25, Art VI) Congress may not increase appropriations recommended by the President for the operations of the Government; Form, content and manner of preparation of budget shall be provided by law; No provision or enactment shall be embraced in the bill unless it relates specifically to some particular appropriations therein Procedure for approving appropriations for Congress shall be the same as that of other departments in order to prevent sub-rosa appropriations by Congress; Prohibition against transfer of appropriations (doctrine of augmentation), however President; Senate President; Speaker of the House of Representative; Chief Justice; and Heads of Constitutional Commissions -may by law, be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations; 6. Prohibitions against appropriations for sectarian benefit; and 7. Automatic re-appropriation LEGISLATIVE INQUIRIES Scope: 1. Either House or any of their committees may conduct inquires in aid of legislation. 2. In aid of legislation does not mean that there is pending legislation regarding the subject of the inquiry. In fact, investigation may be needed for purposes of proposing future legislation.

3. If the stated purpose of the investigation is to determine the existence of violations of the law, the investigation is no longer in aid of legislation but in aid of prosecution. This violates the principle of separation of powers and is beyond the scope of congressional powers. Enforcement: 1. Since experience has shown that mere requests for information does not usually work, Congress has the inherentpower to punish recalcitrant witnesses for contempt, and may have them incarcerated until such time that they agree to testify. 2. The continuance of such incarceration only subsists for the lifetime, or term, of such body. Once the body ceases to exist after its final adjournment, the power to incarcerate ceases to exist as well. Thus, each Congress of the House lasts for only 3 years. But if one is incarcerated by the Senate, it is indefinite because the Senate, with its staggered terms, is a continuing body. 3. BUT, in order for a witness to be subject to this incarceration, the primary requirement is that the inquiry is within the scope of Congress powers. I.e. it is in aid of legislation. 4. The materiality of a question is determined not by its connection to any actually pending legislation, but by its connection to the general scope of the inquiry. 5. The power to punish for contempt is inherent in Congress and this power is sui generis. It cannot be exercised by local government units unless they are expressly authorized to do so. Limitations: 1. The inquiry must be in in aid of legislation. Such limitation is an essential element for establishing the jurisdiction of the legislative body. 2. The inquiry must be conducted in accordance with the duly published rules of procedure of the House conducting the inquiry; and 3. The rights of persons appearing in or affected by such inquiries shall be respected. Ex. The right against self-incrimination. Appearance by department heads before Congress: 1. Since members of the executive department are co-equals with those of the legislative department, under the principle of separations of powers, department heads cannot be compelled to appear before Congress. Neither may the department heads impose their appearance upon Congress. 2. Department heads (Department Secretaries whose appointments need confirmation by the CA) may appear before Congress in the following instances: a. Upon their own initiative, with the consent of the President (and that of the House concerned); or b. Upon the request of either House (which cannot compel them to attend) 1. The appearance will be conducted in EXECUTIVE SESSION when: a. Required by the security of state or required by public interest; and b. When the President so states in writing Note While Sec.21 deals with legislative investigations in aid of legislation, Sec. 22 pertains to the oversight function of Congress primarily to check whether laws are being properly implemented by the Executive branch of the government. (Bernas opinion) QUESTION LEGISLATIVE HOUR INVESTIGATION Sec 22, Art VI Sec 21, Art VI 1. as to persons who may appear only a any person department head 2. as to who conducts the investigation entire body committees 3. as to subject matter matters related to the any matter for the purpose of legislation

department only Objectives of Section 26(1), Article VI of the 1987 Constitution are: 1. To prevent hodge-podge or log-rolling legislation; 2. To prevent surprise or fraud upon the legislature by means of provisions in bills of which the titles gave no information, and which might therefore be overlooked and carelessly and unintentionally adopted; and 3. To fairly apprise the people, through such publication of legislative proceedings as is usually made, of the subjects of legislation that are being considered, in order that they may have opportunity of being heard thereon by petition or otherwise if they shall so desire. DECLARATION OF WAR/EMERGENCY POWERS Vote requirement: (to declare the existence of a state of war) 1. 2/3 of both Houses, in joint session 2. Voting separately Emergency powers: 1. During times of war or other national emergency, Congress may, BY LAW, authorize the President to exercise powers necessary and proper to carry out a declared national policy. 1. Limitations: a. Powers will be exercised for a limited period only; and b. Powers will be subject to restrictions prescribed by Congress 1. Expiration of emergency powers a. By resolution of Congress or b. Upon the next adjournment of Congress LEGISLATION Bills that must originate from the House of Representatives (Section 24)

1. 2. 3. 4. 5. 6.

Appropriation bills Revenue bills Tariff bills Bills authorizing the increase of public debt Bills of local application Private bills

CODE: A R T Pu Lo P Note: The Senate may, however, propose or concur with amendments. Appropriation bills 1. The primary and specific aim of an appropriation bill is to appropriate a sum of money from the public treasury. 2. Thus, a bill enacting the budget is an appropriations bill. 3. BUT: A bill creating a new office, and appropriating funds therefore is NOT an appropriation bill. Revenue Bill 1. A revenue bill is one specifically designed to raise money or revenue through imposition or levy. 2. Thus, a bill introducing a new tax is a revenue bill, but a provision in, for instance, the Videogram Regulatory Board law imposing a tax on video rentals does not make the law a revenue bill. Bills of local application A bill of local application, such as one asking for the conversion of a municipality into a city, is deemed to have originated from the House provided that the bill of the House was filed prior to the filing of the bill in the Senate

even if, in the end, the Senate approved its own version. Limitations: 1. For appropriation bills: a. Congress cannot increase the appropriations recommended by the President for the operation of the Government as specified in the budget. b. Each provision or enactment in the General Appropriations Bill must relate specifically to some particular appropriation therein and any such provision or enactment must be limited in its operation to the appropriation to which it relates. c. The procedure in approving appropriations for Congress shall strictly follow the procedure for approving appropriations for other departments and agencies. d. A special appropriations bill must specify the purpose for which it is intended and must be supported by funds actually available as certified by the National Treasurer or to be raised by a corresponding revenue proposal therein. a. Transfer of appropriations: i. ii. Rule: No law shall be passed authorizing any transfer of appropriations BUT the following may, BY LAW, be authorized to AUGMENT any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations President President of the Senate Speaker of the House of Representatives Chief of Justice of the Supreme Court Heads of the Constitutional Commissions

a. Discretionary funds appropriated for particular officials shall be: i. Disbursed only for public purposes; ii. Should be supported by appropriate vouchers; and iii. Subject to guidelines as may be prescribed by law. a. If Congress fails to pass General Appropriations Bill (GAB) by the end of any fiscal year: i. The GAB for the previous year is deemed reenacted ii. It will remain in full force and effect until the GAB is passed by Congress. 1. For law granting tax exemption It should be passed with the concurrence of a MAJORITY of ALL the members of Congress. 1. For bills in general Every bill shall embrace only one (1) subject, as expressed in the title thereof i. As a mandatory requirement ii. The title does not have to be a complete catalogue of everything stated in the bill. It is sufficient if the title expresses the general subject of the bill and all the provisions of the statute are germane to that general subject. iii. A bill which repeals legislation regarding the subject matter need not state in the title that it is repealing the latter. Thus, a repealing clause in the bill is considered germane to the subject matter of the bill. Readings In order to become a law, each bill must pass three (3) readings in both Houses. General rule: Each reading shall be held on separate days & printed copies thereof in its final form shall be distributed to its Members three (3) days before its passage. Exception: If a bill is certified as urgent by the President as to the necessity of its immediate enactment to meet a public calamity or emergency, the 3 readings can be held on the same day.

First reading only the title is read; the bill is passed to the proper committee Second reading Entire text is read and debates are held, and amendments introduced. Third reading only the title is read, no amendments are allowed. Vote shall be taken immediately thereafter and the yeas and nays entered in the journal. Veto power of President: 1. Every bill, in order to become a law, must be presented to and signed by the President. 1. If the President does not approve of the bill, he shall veto the same and return it with his objections to the House from which it originated. The House shall enter the objections in the Journal and proceed to reconsider it. 1. The President must communicate his decision to veto within 30 days from the date of receipt thereof. If he fails to do so, the bill shall become a law as if he signed it. 1. This rule eliminates the pocket veto whereby the President would simply refuse to act on the bill. 1. To OVERRIDE the veto, at least 2/3 of ALL the members of each House must agree to pass the bill. such case, the veto is overriden and becomes a law without need of presidential approval. 2. Item veto In

a. The President may veto particular items in an appropriation, revenue or tariff bill. b. This veto will not affect items to which he does not object. c. Definition of item In a revenue/tax bill, it is the subject of the tax and the tax rate imposed thereon; in an appropriations bill, it is the indivisible sum dedicated to a stated purpose d. Veto of RIDER A rider is a provision which does not relate to a particular appropriation stated in the bill. 1. Since it is an invalid provision under Section 25(2), the President may veto it as an item.

Doctrine of Inappropriate Provisions 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) Executive impoundment refusal of the President to spend funds already allocated by Congress for specific purpose. It is the failure to spend or obligate budget authority of any type. (Philconsa v Enriquez, G.R. No. 113105, August 19, 1994) Pocket Veto occurs when The President fails to act on a bill and The reason he does not return the bill to the Congress is that Congress is not in session Not applicable in the Philippines because inaction by the President for 30 days never produces a veto even if Congress is in recess. The President must still act to veto the bill and communicate his veto to Congress without need of returning the vetoed bill with his veto message DISQUALIFICATION Senator/Member of House cannot hold other office employment in Government or the any or the any WHEN APPLICABLE During his term. If he does so, he forfeits his seat.

subdivision, agency or Instrumentality thereof, including GOCCS or their subsidiaries. Legislators cannot be appointed to any office. IF the office was created or the emoluments thereof increased during the term for which he was elected. During his term of office.

Legislators cannot personally appear as counsel before any court of justice, electoral tribunal, quasi-judicial and administrative bodies. Legislators cannot be financially interested directly or indirectly in any contract with or in any franchise, or special privilege granted by the Government, or any subdivision, agency or instrumentality thereof, including any GOCC or its subsidiary. Legislators cannot intervene in any matter before any office of the government.

During his term of office.

When it is for his pecuniary benefit or where he may be called upon to act on account of his office.

Specific limitations on legislation 1. No law shall be enacted increasing the Supreme Courts appellate jurisdiction without the SCs advice and concurrence. 2. No law shall be enacted granting titles of royalty or nobility. POWER TO TAX Limitations: 1. The rule of taxation should be UNIFORM 2. It should be EQUITABLE 3. Congress should evolve a PROGRESSIVE system of taxation. 4. The power to tax must be exercised for a PUBLIC purpose because the power exists for the general welfare 5. The DUE process and equal protection clauses of the Constitution should be observed. Delegation of power to fix rates 1. Congress may, BY LAW, authorize the President to fix the following: a. Tariff rates b. Import and Export Quotas c. Tonnage and wharfage dues

d. Other duties and imposts Within the framework of the national development program of the Government 1. The exercise of such power by the President shall be within the specified limits fixed by Congress and subject to such limitations and restrictions as it may impose. Constitutional tax exemptions: 1. The following properties are exempt from REAL PROPERTY taxes (CODE: Cha Chu M CA) a. Charitable institutions b. Churches, and parsonages or convents appurtenant thereto c. Mosques d. Non-profit cemeteries; and e. All lands, buildings and improvements actually, directly and exclusively used for religious, charitable, or educational purposes. 1. All revenues and assets of NON-STOCK NON-PROFIT EDUCATIONAL institutions are exempt from taxes and duties PROVIDED that such revenues and assets are actually, directly and exclusively used for educational purposes. (Art. XIV Sec 4 (3)) 2. Grants, endowments, donations or contributions used actually, directly and exclusively for educational purposes shall be exempt from tax. This is subject to conditions prescribed by law. (Art. XIV. Sec 4 (4)) Power of the Purse No money shall be paid out of the National Treasury EXCEPT in pursuance of an appropriation made by law. a. This places the control of public funds in the hands of Congress. b. BUT: This rule does not prohibit continuing appropriations. e.g. for debt servicing. This is because the rule does not require yearly or annual appropriation. Limitations a. Appropriations must be for a PUBLIC PURPOSE b. Cannot appropriate public funds or property, directly or indirectly, in favor of i. Any sect, church, denomination, or sectarian institution or system of religion or ii. Any priest, preacher, minister, or other religious teacher or dignitary as such. EXCEPT if the priest, etc is assigned to: the Armed Forces; or any penal institution; or government orphanage; or leprosarium a. BUT the government is not prohibited from appropriating money for a valid secular purpose, even if it incidentally benefits a religion. ALSO, the temporary use of public property for religious purposes is valid, as long as the property is available for all religions. Special funds Money collected on a tax levied for a special purpose shall be treated as a special fund and paid out for such purpose only. Once the special purpose is fulfilled or abandoned, any balance shall be transferred to the general funds of the Government INITIATIVE AND REFERENDUM INITIATIVE The power of the people to propose amendments to the Constitution or to propose and enact legislation called for the purpose.

REFERENDUM Power of electorate to approve or reject legislation through an election called for the purpose Required petition should be signed by at least 10% of the total number of registered voters every legislative district should be represented by at least 3% of the registered voters petition should be registered ARTICLE VII - THE EXECUTIVE DEPARTMENT Executive power is vested in the President of the Philippines. PRESIDENT VICE PRESIDENT At least 40 years old on the day of election Natural-born citizen of the Philippines Able to read and write Registered voter Resident of the Philippines for at least 10 years immediately preceding the election Term of 6 years Unless otherwise provided by law, term of office commences at noon of June 30 next following the election Single term only; Term limitation: 2 not eligible for any successive terms reelection Any person who Voluntary has renunciation succeeded as Of the office for any President, Length of time is not an and served as Interruption in the such for more than 4 years Continuity of service shall NOT be qualified For the full term for for election to the Which he was same office at any time Elected. Manner of Election 1. The President and Vice-President shall be elected by direct vote of the people. 2. Election returns for President and Vice-President, as duly certified by the proper Board of Canvassers shall be forwarded to Congress, directed to the Senate President. 3. Not later than 30 days after the day of the election, the certificates shall be opened in the presence of both houses of Congress, assembled in joint public session. 4. The Congress, after determining the authenticity and due execution of the certificates, shall canvass the votes. 5. The person receiving the highest number of votes shall be proclaimed elected. 6. In case of a tie between 2 or more candidates, one shall be chosen by a majority of ALL the members of both Houses, voting separately. In case this results in a deadlock, the Senate President shall be the

acting President until the deadlock is broken. 7. The Supreme Court en banc shall act as the sole judge over all contests relating to the election, returns, and qualifications of the President or Vice-President and may promulgate its rules for the purpose. SALARIES AND EMOLUMENTS 1. Official salaries are determined by law. 2. Salaries cannot be decreased during the TENURE of the President and the Vice-President. 3. Increases take effect only after the expiration of the TERM of the incumbent during which the increase was approved. 4. Prohibited from receiving any other emolument from the government or any other source during their TENURE PRESIDENTIAL SUCCESSION Vacancies at the beginning of the term VACANCY SUCCESSOR President-elect fails VP-elect will be to qualify or to be Acting President until chosen someone is qualified/chosen as President. President-elect dies VP becomes or is permanently President. disabled. Senate President or In case of his inability, the Speaker of the House shall act as President until a President or a VP shall have been chosen and qualified. In case of death or disability of (1) and (2), Congress shall determine, by law, who will be the acting President.

Vacancies during the term VACANCY President dies, is permanently disabled, is impeached, or resigns. SUCCESSOR Vice-President becomes President for the unexpired term.

Both President and Vice-President die, become permanently disabled, are impeached, or resign.

Senate President or In case of his inability, the Speaker of the House shall act as President until the President or VP shall have been elected and qualified.

Vacancy in office of Vice-President during the term for which he was elected: a. President will nominate new VP from any member of either House of Congress. b. Nominee shall assume office upon confirmation by majority vote of ALL members of both Houses, voting separately. (Nominee forfeits seat in Congress) Election of President and Vice-President after vacancy during term a. Congress shall convene 3 days after the vacancy in the office of both the President and the VP, without need of a call. The convening of Congress cannot be suspended. b. Within 7 days after convening, Congress shall enact a law calling for a special election to elect a President and a VP. The special election cannot be postponed. c. The special election shall be held not earlier than 45 days not later than 60 days from the time of the enactment of the law. d. The 3 readings for the special law need not be held on separate days. e. The law shall be deemed enacted upon its approval on third reading. BUT: No special election shall be called if the vacancy occurs within 18 months before the date of the next presidential election. Temporary disability of the President: The temporary inability of the President to discharge his duties may be raised in either of two ways: a. By the President himself, when he sends a written declaration to the Senate President and the Speaker of the House. In this case, the Vice-President will be Acting President until the President transmits a written declaration to the contrary. a. When a majority of the Cabinet members transmit to the Senate President and the Speaker their written declaration. i. ii. The VP will immediately be Acting President. BUT: If the President transmits a written declaration that he is not disabled, he reassumes his position iii. If within 5 days after the President re-assumes his position, the majority of the Cabinet retransmits their written declaration, Congress shall decide the issue. In this event, Congress shall reconvene within 48 hours if it is not in session, without need of a call. iv. Within 10 days after Congress is required to assemble, or 12 days if Congress is not in session, a 2/3 majority of both Houses, voting separately, is needed to find the President temporarily disabled, in which case, the VP will be Acting President.

Presidential Illness: a. If the President is seriously ill, the public must be informed thereof. b. Even during such illness, the National Security Adviser, the Secretary of Foreign Affairs, and the Chief of Staff of the AFP are entitled to access to the President

Impeachment: (as means of removal from office) Grounds: Culpable violation of the Constitution treason bribery graft and corruption other high crimes or betrayal of public trust Resignation is a factual question: there must be an intent to resign and the intent must be coupled by acts of relinquishment. The validity of a resignation is not governed by any formal requirement as to form. It can be oral. It can be written. It can be express. It can be implied. As long as the resignation is clear, it must be given legal effect. Using the totality test, SC held that Estrada resigned as President. It was confirmed by his leaving Malacanang. In the press release containing his final statement, (1) he acknowledged the oath-taking of the respondent as President of the Republic albeit with reservation about its legality; (2) he emphasized he was leaving the Palace, the seat of the presidency, for the sake of peace and in order to begin the healing process of our nation. He did not say he was leaving the Palace due to any kind of inability and that he was going to re-assume the presidency as soon as the disability disappears; (3) he expressed his gratitude to the people for the opportunity to serve them. Without doubt, he was referring to the past opportunity given him to serve the people as President; (4) he assured that he will not shirk from any future challenge that may come ahead on the same service of our country. Petitioners reference is to a future challenge after occupying the office of the president which he has given up; and (5) he called on his supporters to join him in the promotion of a constructive national spirit of reconciliation and solidarity. Certainly, the national spirit of reconciliation and solidarity could not be attained if he did not give up the presidency. The press release was petitioners valedictory, his final act of farewell. His presidency is now in the past tense. (Estrada v. Desierto, G.R. Nos. 146710-15, March 2, 2001, en Banc [Puno])

DISQUALIFICATIONS SUBJECT SOURCE OF DISQUALIFICATION President, Prohibited from: ViceHolding any office or President, employment during their Cabinet tenure, UNLESS: Members, a. otherwise provided in Deputies or the Constitution (e.g. Assistants of VP can be appointed a Cabinet Cabinet Member, Sec. Members of Justice sits on Judicial and Bar Council); or b. the positions are exofficio and they do not receive any salary or other emoluments therefore (e.g. Sec. of Finance is head of Monetary Board). Practicing, directly or indirectly, any other profession during their tenure; Participating in any business; Being 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 GOCC's or their subsidiaries. N.B. The rule on disqualifications for the President and his Cabinet are stricter than the normal rules applicable to appointive and elective officers under Art. IX-B, Sec. 7.

Spouses and 4th degree relatives of the President (consanguinit y or affinity)

Cannot be appointed during Presidents tenure as: Members of the Constitutional Commissions; Office of the Ombudsman; Department Secretaries; Department Usecs; Chairman or heads of bureaus or offices including GOCCs and their subsidiaries. N.B. a. If the spouse, etc., was already in any of the above offices at the time before his/her spouse became President, he/she may continue in office. What is prohibited is appointment and reappointment, NOT continuation in office. b. Spouses, etc., can be appointed to the judiciary and as ambassadors and consuls.

POWERS OF THE PRESIDENT EXECUTIVE POWER power to enforce and administer laws. President shall have control of all executive departments, bureaus and offices. He shall ensure that laws are faithfully executed. Until and unless a law is declared unconstitutional, the President has a duty to execute it regardless of his doubts as to its validity. The President CANNOT dispose of state property unless authorized by law. POWER TO APPOINT Principles: Since the power to appoint is executive in nature, Congress cannot usurp this function. While Congress (and the Constitution in certain cases) may prescribe the qualifications for particular offices, the determination of who among those who are qualified will be appointed is the Presidents prerogative. with consent of the Commission on Appointments Heads of executive departments Ambassadors, other public ministers, and consuls Officers of AFP from rank of colonel or naval captain Other officers whose appointment is vested in him by the Constitution: Chairmen and members of the COMELEC, COA and CSC. Regular members of the Judicial and Bar Council. The Ombudsman and his deputies; Sectoral representatives in Congress.

Note President also appoints members of the Supreme Court and judges of the lower courts, but these appointments do not need CA confirmation. 1. All other officers whose appointments are not otherwise provided for by law; and those whom he may be authorized by law to appoint. a. This includes the Chairman and members of the Commission on Human Rights, whose appointments are provided for by law NOT by the Constitution. b. Congress may, by law, vest the appointment of other officers lower in rank in the President alone or in the courts, or in the heads of departments, agencies, boards or commissions. c. BUT: Congress cannot, by law, require CA confirmation of the appointment of other officers for offices created subsequent to the 1987 Constitution (e.g. NLRC Commissioners, Bangko Sentral Governor). d. ALSO: Voluntary submission by the President to the CA for confirmation of an appointment which is not required to be confirmed does not vest the CA with jurisdiction. The President cannot extend the scope of the CAs power as provided for in the Constitution. prior recommendation or nomination by the Judicial and Bar Council: Members of the Supreme Court and all lower courts; and Ombudsman and his 5 deputies requiring nominations by multi-sectoral groups Regional consultative commission Party-list representatives, before the Party-list Law appointment of Vice-President as member of the Cabinet appointment solely by the President those vested by the Constitution on the President those whose appointments are not otherwise provided for by law those whom he may be authorized by law to appoint, and those other officers lower in rank whose appointment is vested by law in the President alone. Procedure: 1. CA confirmation needed: a. Nomination by President b. Confirmation by CA c. Appointment by President; and d. Acceptance by appointee. Note: At any time before all four steps have been complied with, the President can withdraw the nomination or appointment. 1. No CA confirmation: a. Appointment; and b. Acceptance. Note: Once appointee accepts, President can no longer withdraw the appointment. Ad-interim appointments: 1. When Congress is in recess, the President may still appoint officers to positions subject to CA confirmation. 2. These appointments are effective immediately, but are only effective until they are disapproved by the CA or until the next adjournment of Congress. 3. Appointments to fill an office in an acting capacity are NOT ad-interim in nature and need no CA approval.

Appointments by an Acting President: These shall remain effective UNLESS revoked by the elected President within 90 days from his assumption or re-assumption of office. Limitation 1. 2 months immediately before the next Presidential elections, and up to the end of his term, the President or Acting President SHALL NOT make appointments. This is to prevent the practice of midnight appointments. EXCEPTION: a. Can make TEMPORARY APPOINTMENTS b. To fill EXECUTIVE POSITIONS; c. If continued vacancies therein will prejudice public service or endanger public safety. 2.) The spouse and relatives by consanguinity or affinity within the 4th civil degree of the President shall not, during his tenure, be appointed as: Members of the Constitutional Commissions; Members of the Office of the Ombudsman; Secretaries; Undersecretaries; Chairman or heads of bureaus or offices, including GOCC and their subsidiaries. POWER OF REMOVAL General rule: this power is implied from the power to appoint. Exception: those appointed by him where the Constitution prescribes certain methods for separation from public service (e.g. impeachment) POWER OF CONTROL AND SUPERVISION a. Power of Control: The power of an officer to alter, modify, or set aside what a subordinate officer has done in the performance of his duties, and to substitute the judgment of the officer for that of his subordinate. Thus, the President exercises control over all the executive departments, bureaus, and offices. The Presidents power over GOCCs comes not from the Constitution but from statute. Hence, it may be taken away by statute. Qualified Political Agency: 1. Since all executive and administrative organizations are adjuncts of the Executive Department, the heads of such departments, etc. are assistants and agents of the President. 2. Thus, generally the acts of these department heads, etc, which are performed and promulgated in the regular course of business, are presumptively the acts of the President. 3. Exception: If the acts are disapproved or reprobated by the President. 4. Under Administrative Law, decisions of Department Secretaries need not be appealed to the President in order to comply with the requirement of exhaustion of administrative remedies. 5. Qualified political agency does NOT apply if the President is required to act in person by law or by the Constitution. Example: The power to grant pardons must be exercised personally by the President. Disciplinary Powers: 1. The power of the President to discipline officers flows from the power to appoint the, and NOT from the power control. 2. BUT While the President may remove from office those who are not entitled to security of tenure, or those officers with no set terms, such as Department Heads, the officers, and employees entitled to security of tenure cannot be summarily removed from office. b. Power of Supervision:

1. This is the power of a superior officer to ensure that the laws are faithfully executed by subordinates. 2. The power of the president over local government units is only of general supervision. Thus, he can only interfere with the actions of their executive heads if these are contrary to law. 3. The execution of laws is an OBLIGATION of the President. He cannot suspend the operation of laws. 4. The power of supervision does not include the power of control; but the power of control necessarily includes the power of supervision. COMMANDER-IN-CHIEF POWERS Scope: 1. The President is the Commander-in-Chief of the Armed Forces. 2. Whenever necessary, the President may call out the AFP to PREVENT or SUPPRESS: a. Lawless violence; b. Invasion; or c. Rebellion. 1. The President may also: a. Suspend the privilege of the writ of habeas corpus; and b. Proclaim a state of martial law. Suspension of the privilege of the writ of habeas corpus and declaring martial law; Grounds a. Invasion or b. Rebellion; and c. Public safety requires it. The invasion or rebellion must be ACTUAL and not merely imminent. Limitations: a. Suspension or proclamation is effective for only 60 days. b. Within 48 hours from the declaration or suspension, the President must submit a report to Congress personally or in writing c. Congress, by majority vote and voting jointly, may revoke the same, and the President cannot set aside the revocation. d. In the same manner, at the Presidents initiative, Congress can extend the same for a period determined by Congress if Invasion or rebellion persists and public safety requires it. e. The Supreme Court can inquire into the sufficiency of the factual basis for such action, at the instance of any citizen. Decision must be promulgated 30 days within its filing f. Proclamation does not affect the right to bail g. Suspension applies only to persons facing charges of rebellion or offenses inherent in or directly connected with invasion h. Person arrested must be charged within 3 days, if not, must be released i. Proclamation does not supersede civilian authority. NOTE: Congress CANNOT extend the period motu propio. Supreme Court review: i. The appropriate proceeding can be filed by any citizen. ii. The SC can review the FACTUAL BASIS of the proclamation or suspension. iii. Decision is promulgated within 30 days from filing.

Martial Law does NOT: i. Suspend the operation of the Constitution. ii. Supplant the functioning of the civil courts or legislative assemblies. iii. Authorize conferment of jurisdiction on military courts over civilians where civil courts are able to function and iv. Automatically suspend the privilege of the writ. Note While the suspension of the privilege of writ and the proclamation of martial law is subject to judicial review,

the actual use by the President of the armed forces is not. Thus, troop deployments in times of war are subject to the Presidents judgment and discretion. PARDONING POWER It is discretionary, may not be controlled by the legislature or reversed by the court, unless there is a constitutional violation Scope: The President may grant the following: Pardons (conditional or plenary) Reprieves Commutations Remittance of fines and forfeitures These may only be granted AFTER conviction by final judgment. ALSO: The power to grant clemency includes cases involving administrative penalties. Where a conditional pardon is granted, the determination of whether it has been violated rests with the President. Limitations: Cannot be granted: (a) Before conviction and (b)In cases of impeachment (c) For violations of election laws, rules, and regulation without the favorable recommendation of the COMELEC, and (d) In cases of civil or legislative contempt As to effect: Does not absolve civil liabilities for an offense. Does not restore public offices already forfeited, although eligibility for the same may be restored.

Amnesty: An act of grace concurred in by Congress, usually extended to groups of persons who commit political offenses, which puts into oblivion the offense itself. President alone CANNOT grant amnesty. Amnesty needs concurrence by a majority of all the members of Congress. When a person applies for amnesty, he must admit his guilt of the offense which is subject to such amnesty. If his application is denied, he can be convicted based on this admission of guilt. Pardon: act of grace which exempts individual on whom it is bestowed from punishment which the law inflicts for a crime he has committed. Classification of pardon: plenary or partial, and absolute or conditional Commutation reduction or mitigation of the penalty Reprieve postponement of sentence or stay of execution

Parole release from imprisonment, but without full restoration of liberty, as parolee is in the custody of the law although not in confinement Amnesty vs. Pardon AMNESTY Addressed to POLITICAL offenses Granted to a CLASS of persons Need not be accepted Requires concurrence of majority of all members of Congress PARDON Addressed to ORDINARY offenses Granted to INDIVIDUALS Must be accepted No need for Congressional concurrence

A public act. Subject to judicial notice Extinguishes the offense itself

May be granted before or after conviction

Private act of President. It must be proved. Only penalties are extinguished. May or may not restore political rights. Absolute pardon restores. Conditional does not. Civil indemnity is not extinguished. Only granted after conviction by final judgment BORROWING POWER

The President may contract or guarantee foreign loans on behalf of the Republic with the concurrence of the Monetary Board, subject to such limitations as may be provided by law. Monetary Board shall submit to Congress report on loans within 30 days from end of every quarter. DIPLOMATIC POWER Power to negotiate treaties and other international agreements BUT: Such treaty of international agreement must be concurred in by at least 2/3 of all Senators in order to be valid and effective in our country. Options of Senate when a treaty is submitted for its approval: Approve with 2/3 majority Disapprove outright; or

Approve conditionally, with suggested amendments. If treaty is not re-negotiated, no treaty If treaty is re-negotiated and the Senates suggestions are incorporated, the treaty will go into effect without need of further Senate approval. Note While our municipal law makes a distinction between international agreements and executive agreements, with the former requiring Senate approval and the latter not needing the same, under international law, there is no such distinction.

The power to ratify is vested in the President and not, as commonly believed, in the legislature. The role of the Senate is limited only to giving or withholding its consent, or concurrence, to the ratification. (BAYAN [Bagong Alyansang Makabayan] v. Executive Secretary Ronaldo Zamora, G.R. No. 138570, Oct. 10, 2000, En Banc [Buena]) The President can refuse to submit a treaty to the Senate or, having secured its consent for its ratification, refuse to ratify it. (Pimentel, Jr. v. Office of the Executive Secretary, 462 SCRA 622, July 6, 2005 [ Puno]) Note In case of conflict between treaty and municipal law: (i) Philippine court: The later enactment will prevail, be it treaty or law, as it is the latest expression of the States will. (ii) International tribunal: Treaty will always prevail. noncompliance with an international obligation. A State cannot plead its municipal law to justify

Note The President cannot, by executive agreement, undertake an obligation which indirectly circumvents a legal prohibition. INFORMING POWER President shall address Congress at the opening of its regular session. President may also appear before it at any other time RESIDUAL POWER Powers of the President not set forth in the Constitution. (Marcos vs Manglapus, 178 SCRA 760) POWER OF IMPOUNDMENT Impoundment refers to the refusal of the President, for whatever reason, to spend funds made available by Congress. It is the failure to spend or obligate budget authority of any type. (PHILCONSA v. Enriquez, 235 SCRA 506, Aug. 9, 1994 [Quiason])

OTHER POWERS Call Congress to a special session Approve or veto bills Deport aliens This power is vested in the President by virtue of his office, subject only to restrictions as may be provided by legislation as regards to the grounds for deportation The power to deport aliens is limited by the requirements of due process, which entitles the alien to a full and fair hearing BUT the alien is not entitled to bail as a matter of right. Consent to deputization of government personnel by COMELEC Discipline such deputies General supervision over local government units and autonomous regional governments General supervision mere overseeing of subordinates to make sure that they do their duties under the law but does not include the power to overrule their acts, if these acts are within their discretion. By delegation from Congress, exercise emergency and tariff powers CONDITIONS FOR THE EXERCISE OF EMERGENCY POWERS: there must be a war or national emergency; there must be a law authorizing the President to exercise emergency powers; exercise must be for a limited period; must be subject to restrictions that Congress may provide; exercise must be necessary and proper to carry out a declared national policy ARTICLE VIII - THE JUDICIAL DEPARTMENT JUDICIAL POWER 1. Duty of Courts of Justice to settle justiciable controversies or disputes involving rights that are legally enforceable and demandable or the redress of wrongs for violations of such rights. 2. Vested in the Supreme Court and such lower courts as may be established by law. 3. Since the courts are given judicial power and nothing more, courts may neither attempt to assume nor be compelled to perform non-judicial functions. They may not be charged with administrative functions except when reasonably incidental to the fulfillment of their duties. 4. In order that courts may exercise this power, there must exist the following: An actual controversy with legally demandable and enforceable rights; Involving real parties in interest; The exercise of such power will bind the parties by virtue of the courts application of existing laws. 5. Judicial power cannot be exercised in vacuum. Without any laws from which rights arise and which are violated, there can be no recourse to the courts. 6. The courts cannot be asked for advisory opinions. The duties of the courts are to settle actual controversies involving rights which are legally demandable and enforceable; and To determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government. Political Questions:

One the resolution of which has been vested by the Constitution exclusively in either the people, in the exercise of their sovereign capacity, or in which full discretionary authority has been delegated to a co-equal branch of the Government. An issue is a political question when it does not deal with the interpretation of a law and its application to a case, but with the very wisdom of the law itself. Thus, while courts can determine questions of legality with respect to governmental action, they cannot review government policy and the wisdom thereof, for these questions have been vested by the Constitution in the Executive and Legislative Departments. JUSTICIABLE QUESTION a definite and concrete dispute touching on the legal relations of parties having adversarial interests when may be resolved by a court of law through the application of law POLITICAL QUESTION 2 aspects: 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 Legislature or Executive branches of government.

Safeguards that guarantee independence of Judiciary: SC is a Constitutional body, may not be abolished by law; Members are only removable by impeachment; SC may not be deprived of minimum and appellate jurisdiction; appellate jurisdiction may not be increased without its advice or concurrence; SC has administrative supervision over all inferior courts and personnel; SC has exclusive power to discipline judges/justices of inferior courts; Members of judiciary enjoy security of tenure; Members of judiciary may not be designated to any agency performing quasi-judicial or administrative functions; Salaries of judges may not be reduced; judiciary enjoys fiscal autonomy; SC alone may initiate Rules of Court; SC alone may order temporary detail of judges; and SC can appoint all officials and employees of the Judiciary POWER OF JUDICIAL REVIEW Judicial review power of the courts to test the validity of executive and legislative acts in light of their conformity with the Constitution. This is not an assertion of superiority by the Courts over the other department, but merely an expression of the supremacy of the Constitution. (Angara v Electoral Commission, 63 Phil 139)

Seven (7) rules of avoidance of constitutional questions (J. Brandeis) : In the following cases, the court must refrain from passing on the issue of constitutionality or from exercising judicial review: 1. Friendly, non-adversary proceedings. (no vital conflict) 2. Anticipation of a question of constitutional law in advance of the necessity of deciding it. (premature case) 3. Formulation of a rule broader than is required by the precise facts to which it is applied. 4. Existence of other grounds upon which the case may be disposed of (not the very lis mota) 5. A complaint made by one who fails to show injury as to its operation. (no standing) 6. Instance of one who has availed himself of its benefit. 7. Possibility of a construction of the statute which can avoid the resolution of the constitutional question. Policy of strict necessity (Rescue Army case) The court must, as much possible, refrain from exercising judicial review unless all the requirements for its exercise are fulfilled, thus the following must be avoided: (i) political questions, (ii) advisory opinions, (iii) moot and academic issues, and (iv) no standing. Mootness - A case becomes moot when there are facts, injuries and arguments but for some reason the legal problem has become stale. When a case is moot and academic, it ceases to be a case and controversy. Any decision reached by the court would not be conclusive on the parties. Exceptions to mootness: 1) If the question is capable of repetition and evasive of review. 2) If there exists a mere possibility of collateral legal consequences if the court does not act. 3) Voluntary cessation from the wrongful act by the defendant, if he is free to return to his old ways. Ripeness - A constitutional question may come to the court either too early or prematurely, so that it is still abstract (advisory opinion), or too late, so that the court's decision would no longer affect the parties (mootness). The court must resolve constitutional issues only when they come to it at the right time (ripeness). No Standing - A party has a standing in a case if his interest is such that he stands to be benefited if the case is resolved in his favor, and he stand to be really injured if it is decided against him. The test of standing is whether the party has alleged such a personal stake in the outcome of the controversy as to assure such concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions (Baker v Carr, supra.) A person has standing to challenge the governmental act only if 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, infra.) Functions of Judicial Review 1. Checking - invalidating a law or an executive act that is found to be contrary to the Constitution. 2. Legitimating (legitimizing) - upholding the validity of the law which results from a mere dismissal of a case challenging the validity of that law. When the Court exercises this function, it uses the double negative by declaring that the law is "not unconstitutional". This is not mere semantics. The Court cannot declare the law constitutional for it already enjoys the presumption of constitutionality. As anyone who challenges the validity of a law has the burden of proof to show its invalidity, declaring that the law is not unconstitutional is tantamount to saying that the challenger has not met the burden required. 3. Symbolic - to educate the bench and bar as to the controlling principles and concepts on matters of great public importance. All courts can exercise judicial review (see powers of SC under Art. VIII, Sec. 5(2). The review power of the SC implies that it has appellate jurisdiction over final judgments of lower courts on cases with constitutional issues. If so, inferior courts have original jurisdiction over constitutional cases

although they decide the case only at first instance, their decision being always reviewable by the SC. Effect of Declaration of unconstitutionality void - if on its face, it does not enjoy any presumption of validity. It produces no effect whatsoever, creates no right or office, it imposes no duty. Whatever penalty was paid during the period of its operation must be remitted. voidable - if, on its face, it enjoys the presumption of validity. The law becomes inoperative only upon the judicial declaration of its invalidity. The invalidation produces no retroactive effect Prior to the declaration that a particular law is unconstitutional, it is considered as an operative fact which at that time had to be complied with. Thus, vested rights may have been acquired under such law before it was declared unconstitutional. These rights are not prejudiced by the subsequent declaration that the law is unconstitutional. Notes Only SC decisions are precedent, and thus, only SC decisions are binding on all. Requisites for Exercise of Power: 1. An ACTUAL CASE calling for the exercise of judicial power a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial determination 2. The question involved must be RIPE FOR ADJUDICATION, i.e. the government act must have had an adverse effect on the person challenging it. 3. The person challenging the governmental act must have STANDING, i.e. a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement. 4. The question of Constitutionality must be raised in the first instance, or at the earliest opportunity. 5. Resolution of the issue of constitutionality is unavoidable or is the very lis mota. Grave abuse of discretion amounting to lack of jurisdiction - capricious and whimsical exercise of judgment. The abuse of discretion must be patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or hostility. (Intestate Estate of Carmen de Luna v. IAC, 170 SCRA 246) ROLES OF CONGRESS 1. Defining enforceable and demandable rights and prescribing remedies for violations of such rights; and 2. Determining the court with jurisdiction to hear and decide controversies or disputes arising from legal rights. 3. Thus, Congress has the power to define, prescribe and apportion the jurisdiction of various courts. BUT, Congress cannot deprive the Supreme Court of its jurisdiction over cases provided for in the Constitution. Creation and abolition of courts: The power to create courts implies the power to abolish and even re-organize courts. BUT this power cannot be exercised in a manner which would undermine the security of tenure of the judiciary. If the abolition/re-organization is done in good faith and not for political or personal reasons, then it is VALID. (same rule applies for civil servants) FISCAL AUTONOMY The entire judiciary shall enjoy fiscal autonomy. Annual appropriations for the judiciary cannot be reduced below the amount appropriated for the previous year. Once approved, appropriations shall be automatically and regularly released.

Composition of the Supreme Court: Chief Justice and 14 Associate Justices JUDGES OF LOWER NONCOLLEGIATE COURTS Citizen of the Philippines (may be a naturalized Citizen) at least 40 years old at least 35 years old(RTC) at least 30 yrs old (inferior courts) 5 yrs practice of at least 15 years of law in experience as a judge or in the practice of law in the the Phils or has Philippines held public office requiring admission to the practice of law as an indispensable requirement Person of proven competence, integrity, probity and independence .JUDICIAL AND BAR COUNCIL Composition Ex-officio chairman Supreme Court Chief Justice Ex-officio members Secretary of Justice Representative of Congress Regular members Representative of the IBP Professor of Law Retired member of SC; and Representative of private sector Secretary de officio Clerk of the Supreme Court Note The last four are the regular members of the JBC. Regular members are appointed by the President with CA approval. Regular members serve for 4 years, with staggered terms. LOWER COLLEGIATE COURTS e.g. CA, CTA. Sandiganbayan Natural born citizen of the Philippines SC

Functions of JBC recommend appointees to the Judiciary recommend appointees to the Office of the Ombudsman and his 5 deputies Exercise such other functions as the SC may assign to it. Appointments to the Judiciary President shall appoint from a list of at least 3 nominees for each vacancy, as prepared by the JBC. No CA confirmation is needed for appointments to the Judiciary. Vacancies in SC should be filled within 90 days from the occurrence of the vacancy. Vacancies in lower courts should be filled within 90 days from submission to the President of the JBC list. SALARIES Salaries of SC Justices and judges of lower courts shall be fixed by law. Cannot be decreased during their continuance in office, but can be increased. Members of the Judiciary are NOT exempt from payment of income tax. TENURE/DISCIPLINARY POWERS OF SC 1. Members of the SC and judges of the lower courts hold office during good behavior until a. The age of 70 years old; or b. They become incapacitated to discharge their duties. 2. Disciplinary action against judges of lower courts: a. Only the SC en banc has jurisdiction to discipline or dismiss judges of lower courts. b. Disciplinary action/dismissal: Majority vote of SC Justices who took part in the deliberations and voted therein. 3. Removal of SC Justices: a. Only by IMPEACHMENT. b. Cannot be disbarred while they hold office. THE SUPREME COURT Hearing of cases: En banc; or Divisions of 3, 5, or 7. Cases required to be heard en banc: 1. All cases involving constitutionality of a/an: a. Treaty b. International or executive agreement or c. Law. 2. All cases required to be heard en banc under the Rules of Court: a. Appeals from Sandiganbayan; and b. From the Constitutional Commissions 3. All cases involving the constitutionality, application or operation of a. Presidential decrees b. Proclamations c. Orders d. Instructions e. Ordinances; and f. Other regulations. 4. Cases heard by a division where required majority of 3 was not obtained. 5. Cases where SC modifies or reverses a doctrine or principle of law laid down by the SC en banc or by a division. 6. Administrative cases to discipline or dismiss judges of lower courts; and 7. Election contests for President and Vice-President.

Cases heard by division 1. Must be decided with the concurrence of a majority of the members who took part in the deliberations and voted thereon. 2. Majority vote in a division should be at least 3 members. Powers of the SC ORIGINAL jurisdiction 1) cases affecting ambassadors, other public ministers and consuls. NOTE: This refers to foreign ambassadors, etc., stationed in the Phils. 2) Petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus APPELLATE jurisdiction 1) All cases involving the constitutionality or validity of any: treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation 2) All cases involving the legality of any: tax, impost, toll, assessment, or any penalty imposed in relation thereto; 3) All cases in which the jurisdiction of any lower court is in issue 4) Criminal cases where the penalty imposed is reclusion perpetua or higher; and 5) All cases where ONLY errors or questions of law are involved.

Electoral Tribunal for Presidential and Vice-Presidential contests sitting en banc, over all contests relating to the election, returns and qualification of the President or Vice-President Temporarily assign lower court judges to other stations in the public interest.

Note Temporary assignment shall not exceed 6 months without the consent of the judge concerned. 5. Order a change of venue or place of trial to avoid a miscarriage of justice. 6. Promulgate rules concerning: a. The protection and enforcement of constitutional rights; b. Pleading, practice and procedure in all courts; c. Admission to the practice of law; d. The Integrated Bar; and e. Legal assistance to the underprivileged. Limitations on Rule Making Power a. provide a simplified and inexpensive procedure for the speedy disposition of cases. b. uniform for all courts of the same grade. c. shall not diminish, increase, or modify substantive rights Appoint ALL officials and employees of the Judiciary, in accordance with Civil Service Law. Exercise administrative supervision over ALL courts and the personnel thereof. Submit to the President and Congress an annual report on the operation and activities of the Judiciary DECISIONS 1. MUST state clearly and distinctly the facts and the law on which it is based. 2. Refusal to give due course to petitions for review and motions for reconsideration must state the legal basis for such refusal. 3. Memorandum decisions, where the appellate court adopts the findings of fact and law of the lower court, are allowed as long as the decision adopted by reference is attached to the Memorandum for easy reference. 4. These rules only apply to courts. They do not apply to quasi-judicial or administrative bodies nor to military tribunals. 5. Reached in consultation before being assigned to a member for the writing of the opinion. 6. A certification to this effect must be signed by the Chief Justice and attached to the record of the case and served upon the parties. 7. Members of the SC who took no part, or who dissented or abstained must state the reasons therefore. Note This procedure shall also be observed by all lower collegiate courts (CA, CTA, and the Sandiganbayan). ARTICLE IX THE CONSTITUTIONAL COMMISSIONS Independent Constitutional Commissions: 1) Civil Service Commission (CSC) 2) Commission on Elections (COMELEC) 3) Commission on Audit (COA) The CSC, COMELEC, and the COA are equally pre-eminent in their respective spheres. Neither one may claim dominance over the others. In case of conflicting rulings, it is the Judiciary, which interprets the meaning of the law and ascertains which view shall prevail. (CSC v Pobre, GR 160508, September 15, 2004) Safeguards that guarantee Independence of Commissions: they are constitutionally created, may not be abolished by statute; each is expressly described as independent; each is conferred certain powers and functions which cannot be reduced by statute; the Chairmen and members cannot be removed except by impeachment; the Chairmen and members are given a fairly long term of office of 7 years; the Chairmen and members may not be reappointed or appointed in an acting capacity (Brillantes v.

Yorac, 192 SCRA 358); the salaries of the Chairmen and members are relatively high and may not be decreased during continuance in office; the Commissions enjoy fiscal autonomy; each Commission may promulgate its own procedural rules, provided they do not diminish, increase or modify substantive rights (though subject to disapproval by the SC); the Chairmen and members are subject to certain disqualifications calculated to strengthen their integrity; the Commissions may appoint their own officials and employees in accordance with Civil Service Law (Nachura, Reviewer in Political Law, p. 209) DISQUALIFICATIONS Members cannot, during their tenure: 1) Hold any other office or employment; 2) Engage in the practice of any profession; 3) Engage in the active management or control of any business, which, in any way, may be affected by the functions of their office; and 4) Be financially interested, direct or indirect, in any contract, franchise, privilege granted by the government, any of its subdivisions, agencies, instrumentalities, including GOCC's and their subsidiaries. Note The Ombudsman and his deputies are subject to the same qualifications. SALARIES 1) Salaries are fixed by law and shall not be decreased during their TENURE. 2) Decreases in salaries only affect those members appointed AFTER increase. 3) Incumbent members do not lose any salary. 4) Increases take effect IMMEDIATELY. RULES OF PROCEDURE Procedures: 1) Rules: The Commissions may promulgate its own rules EN BANC. 2) Limitation: It shall not: a) Diminish, b) Increase, or c) Modify substantive rights. 3) Power of SC a). The SC may not, under Art. VIII Sec. 5(5), exercise the power to disapprove rules of "special courts and quasi-judicial bodies." b).In proceedings before the Commissions, the rules of the Commission prevail. c). In proceedings before a court, the Rules of Court prevail. d). The SC may, however, in appropriate cases, exercise JUDICIAL REVIEW DECISION MAKING/APPEAL Decision-Making: 1) Each commission shall decide matter or cases by a majority vote of all the members within 60 days from submission. COMELEC may sit en banc or in 2 divisions. Election cases, including pre-proclamation controversies are decided in division, with motions for reconsideration filed to the COMELEC en banc. The SC has held that a majority decision decided by a division of the COMELEC is a valid decision. 2) As COLLEGIAL BODIES, each commission must act as one, and no one member can decide a case for the entire commission. (i.e. The Chairman cannot ratify a decision which would otherwise have been void).

Appeals: 1) Decisions, orders or rulings of the COMELEC/COA may be brought on certiorari to the SC under Rule 65. 2) Decisions, orders or ruling of the CSC should be appealed to the CA under Rule 43. Enforcement: It has been held that the CSC can issue a writ of execution to enforce judgments which are final. THE CIVIL SERVICE COMMISSION Composition: 1) Chairman 2) Commissioners 2 commissioners Qualifications: 1. Natural-born citizens of the Philippines; 2. At least 35 years old at the time of their appointments; 3. With proven capacity for public administration; and 4. NOT candidates for any elective position in the elections immediately preceding their appointment. 5. Appointees by the President to the CSC need Commission on Appointments (CA) confirmation Term: 1) Chairman -7 years; Commissioner 1 - 5 yrs; Commissioner 2 - 3 yrs 2) Limitation: single term only, no reappointment 3) Appointment to vacancy: only for unexpired term of predecessor 4) No temporary appointments, or appointments in acting capacity. Scope: The Civil Service embraces all: A. branches, B. subdivisions, C. instrumentalities, D. agencies of the government, E. including GOCCs with original charters. 1."With Original Charter" means that the GOCC was created by special law/by Congress 2. If incorporated under the Corporation Code, it does not fall within the Civil Service, and is not subject to the CSC jurisdiction. 3. Even if once government-controlled, then becomes privatized, ceases to fall under CSC. 4. Jurisdiction is determined as of the time of filing the complaint. Appointments to civil service shall be: A. Competitive positions According to merit and fitness to be determined by competitive examinations, as far as practicable except to positions which are policy-determining, primarily confidential, or highly technical. B. Non-competitive positions No need for competitive examinations. Three Kinds a) Policy-determining formulate a method of action for the government

b) Primarily confidential - primarily close intimacy which insures freedom of intercourse without embarrassment of freedom from misgivings or betrayals on confidential matters of State; or one declared to be so by the President upon recommendation of the SCS (Salazar v Mathay, 73 SCRA 275)

c) Highly technical

- requires technical skill to a superior degree.

C. TEST to determine whether non/competitive is the Nature of the responsibilities, NOT the administrative or legislative description given to it. D. Both types of positions are entitled to security of tenure. They only differ in the MANNER in which they are filled. E. Who may be appointed? 1). RULE: Whoever fulfills all the qualifications prescribed by law for a particular position may be appointed therein. 2). The CSC cannot disapprove an appointment just because another person is better qualified, as long as the appointee is himself qualified. 3). The CSC CANNOT add qualifications other than those provided by law. F. Next-In-Rank Rule - While a person next in rank is entitled to preferential consideration, it does not follow that only he, and no one else, can be appointed. Such person has no vested right to the position and the appointing authority is not bound to appoint the person next in rank. Tenure (Classification of Positions) Career Service Non-Career Service 1. Entrance based 1. Entrance on bases on merit and fitness OTHER than usual tests to be determined of merit and fitness. as far as practicable by competitive examinations or based on highly technical qualifications. 2. Entitled to Tenure limited to: security of tenure a. Period specified by law, b. Coterminous with the appointing authority or subject to his pleasure, or c. Limited to the duration of a particular project for which purpose the employment was made. 3. With opportunity for advancement to higher career positions. Kinds of career service: open career positions prior qualification via examination; closed career positions e.g., scientific or highly technical career executive service e.g. Undersecretaries, Bureau Directors;

career officers appointed by President, e.g., foreign service; positions in AFP, governed by separate merit system personnel of GOCCs with original charter permanent laborers, whether skilled, semi-skilled or unskilled Kinds of non-career service elective officials and their personal and confidential staff; department heads and officials of cabinet rank, and their personal and confidential staff; chairmen and members of commissions and boards with fixed terms of office and their personal and confidential staff; contractual personnel or those whose employment in government is in accordance with special contract for specific work; and emergency and seasonal personnel Security of Tenure: 1) Officers or employees of the Civil Service cannot be removed or suspended EXCEPT for cause provided by law. It guarantees both procedural and substantive due process. 2) "LEGAL CAUSE": a). related to and affects the administration of office, and b). must be substantial (directly affects the rights & interests of the public) 3) Security of tenure for Non-competitive positions a). Primarily confidential officers and employees hold office only for so long as confidence in them remains. b). If there is GENUINE loss of confidence, there is no removal, but the expiration of the term of office c). Non-career service officers and employees do not enjoy security of tenure. d). Political appointees in the foreign service possess tenure coterminous with that of the appointing authority or subject to his pleasure. 4) One must be VALIDLY APPOINTED to enjoy security of tenure. Thus, one who is not appointed by the proper appointing authority does not acquire security of tenure. Abolition of Office To be valid, abolition must be made: (a) In good faith; (good faith is presumed) (b) Not for political or personal reasons; and (c) Not in violation of law. Temporary employees are covered by the following rules: 1). Not protected by security of tenure can be removed anytime even without cause 2). If they are separated, this is considered an expiration of his term. 3). BUT: They can only be removed by the one who appointed them. 4). Entitled only to such protection as may be provided by law. Disqualifications 1) Losing candidates in any election a). Cannot be appointed to any office in the government or GOCC's or their subsidiaries b). Period of disqualification: One (1) year after such election. 2) Elective officials a) Not eligible for appointment or designation ANY CAPACITY to ANY PUBLIC OFFICE or position during their tenure. b) EXCEPTION: May hold ex office positions. Examples: The Vice President may be appointed Cabinet member; Congressman may sit in the Judicial and Bar Council; c). To be eligible to hold any other office, the elected official must first resign from his office

d). Even Congress cannot, by law, authorize the appointment of an elective official. 3). Appointive officials a) Cannot hold any other office or employment in the government, any subdivision, agency, instrumentality, including GOCC's and their subsidiaries. b) EXCEPTION: Unless otherwise allowed by law, or by the primary functions of his position. c) This exception DOES NOT APPLY to Cabinet members, and those officers mentioned in Art. VII, Sec. 13. They are governed by the stricter prohibitions contained therein. COMPENSATION 1) Prohibitions: apply to elected or appointed officers and employee Cannot receive: A. Additional an extra reward given for the same office i.e. bonus B. Double - when an officer is given 2 sets of compensation for 2 different offices held concurrently by 1 officer C. Indirect Compensation 2) EXCEPTION: Unless specifically authorized by law a. "SPECIFICALLY AUTHORIZED" means a specific authority particularly directed to the officer or employee concerned. b. BUT: per diems and allowances given as REIMBURSEMENT for expenses actually incurred are not prohibited 3) Cannot accept any present, emolument, office, title of any kind from foreign governments UNLESS with the consent of Congress. 4) Pensions and gratuities are NOT considered as additional, double, or indirect compensation.

THE COMMISSION ON ELECTIONS Composition: (7) 1) Chairman and 2) Commissioners (6) Qualifications: Natural-born citizens of the Philippines; At least 35 years old at the time of appointment Holders of college degrees; and Not candidates for any elective position in the immediately preceding elections. Majority of the Commission, including the Chairman must be: Members of the Philippines Bar Engaged in the practice of law for at least 10 years: any activity in or out of court, which requires the application of law, legal procedure, knowledge, training and experience. 6) Appointments subject to CA approval Term: Chairman -7 yrs; 3 Members - 7 yrs; 2 Members - 5 yrs; 1 Member - 3 yrs. LIMITATION: Single term only: no reappointment allowed Appointment to a vacancy: only for unexpired portion of predecessors term No temporary appointments, or appointments in acting capacity Thus, the President cannot designate an incumbent commissioner as acting Chairman. The choice of temporary chairman falls under the COMELECs discretion. POWERS AND FUNCTIONS

Powers: 1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall. Ex: COMELEC can enjoin construction of public works within 45 days of an election. Exercise: A. Exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective 1. Regional, 2. Provincial, and 3. City officials B. Appellate jurisdiction over all contests involving: 1. Elective municipal officials decided by trial courts of general jurisdiction 2. Elective barangay officials decided by trial courts of limited jurisdiction. C. Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final, executory, and not appealable. Exception: Appealable to the SC on questions of law. Contempt powers COMELEC can exercise this power only in relation to its adjudicatory or quasi-judicial functions. It CANNOT exercise this in connection with its purely executive or ministerial functions. If it is a pre-proclamation controversy, the COMELEC exercises quasi-judicial/administrative powers. Its jurisdiction over contests (after proclamation), is in exercise of its judicial functions. E. The COMELEC may issue writs of certiorari, prohibition and mandamus in exercise of its appellate jurisdiction. This is not an inherent power. 3) Decide, except those involving the right to vote, all questions affecting elections, including determination of the number and location of polling places, appointment of election officials and inspectors, and registration of voters. Note Questions involving the right to vote fall within the jurisdiction of the ordinary courts. 4) Deputize, with the concurrence of the President, law enforcement agencies and instrumentalities of the Government, including the Armed Forces of the Philippines, for the exclusive purpose of ensuring free, orderly, honest, peaceful, and credible elections. This power is NOT limited to the election period. Applies to both criminal and administrative cases. 5) Registration of political parties, organizations, or coalitions/accreditation of citizens arms of the Commission on Elections. The political parties etc. must present their platform or program of government. There should be sufficient publication Groups which cannot be registered: Religious denominations/sects Groups which seek to achieve their goals through violence or unlawful means Groups which refuse to uphold and adhere to the Constitution Groups which are supported by any foreign government such as financial contributions related to elections. If accepted, it is an additional ground for the cancellation of their registration with the Commission, in addition to other penalties that may be prescribed by law d). BUT: Political parties with religious affiliation or which derive their principles from religious beliefs are registerable.

e). Financial contributions from foreign governments and their agencies to political parties, organizations, coalitions, or candidates related to elections constitute interference in national affairs. If accepted, it is an additional ground for the cancellation of their registration with the Commission, in addition to other penalties that may be prescribed by law.

1. File, upon a verified complaint, or on its own initiative, petitions in court for inclusion of exclusion of voters;
investigate and, where appropriate, prosecute cases of violations of election laws, including acts or omissions constituting elections frauds, offenses and malpractices. COMELEC has exclusive jurisdiction to investigate and prosecute cases for violations of election laws. COMELEC can deputize prosecutors for this purpose. The actions of the prosecutors are the actions of the COMELEC Preliminary investigation conducted by COMELEC is valid.

1. Recommend to the Congress effective measures to minimize election spending, including limitation of
places where propaganda materials shall be posted, and to prevent and penalize all forms of election frauds, offenses, malpractices, and nuisance candidacies.

1. Recommend to the President the removal of any officer or employee it has deputized, or the imposition of
any other disciplinary action, for violation or disregard or, or disobedience to its directive, order, or decision.

1. Submit to the President and the congress a comprehensive report on the conduct of each election,
plebiscite, initiative, referendum, or recall. Definition of Political Party - organized group of persons pursuing the same political ideals in a government and includes its branches, and divisions Importance of registration of a political party 1. Registration confers juridical personality on the party. 2. It informs the public of the party's existence and ideals. 3. It identifies the party and its officers for purposes of regulation by the COMELEC. Prohibition on block-voting 1. General rule: Block voting NOT allowed 2) EXCEPTION: those registered under the party-list system RULES OF PROCEDURE/DECISION-MAKING Rules of Procedure COMELEC can sit en banc or in two divisions It has the power to promulgate its own rules of procedure in order to expedite disposition of election cases, including pre-election controversies. Decision-Making Election cases should be heard and decided in division. Provided that, Motions for reconsideration of decisions should be decided by COMELEC en banc. Decisions mean resolutions on substantive issues. If a division dismisses a case for failure of counsel to appear, the Motion for Reconsideration here may be heard by the division. EXCEPTION: COMELEC en banc may directly assume jurisdiction over a petition to correct manifest errors in the tallying of results by Board of Canvassers.

SUPERVISION/REGULATION OF FRANCHISES / PERMITS / GRANTS / SPECIAL PRIVILEGES / CONCESSIONS Regulation of franchises A. What can COMELEC supervise or regulate 1). the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information. 2). Grants, special privileges or concessions granted by the Government or any subdivision, agency or instrumentality thereof, including any GOCC or its subsidiary B. When can COMELEC exercise this power 1). During the election period Under Article XI, Section 9, the election period commences 90 days before the day of the election and ends 30 days thereafter. In special cases, COMELEC can fix a period. 2). Applies not just to elections but also to plebiscites and referenda. 3). Plebiscite: Submission of constitutional amendments or important legislative measures to the people ratification 4). Referendum: power of the electorate to approve or reject legislation through an election called for that purpose. COMELEC and the MEDIA 1). COMELEC cannot compel print media to donate free space to the COMELEC. It may, however, compel it to provide space after paying just compensation. 2). Power of COMELEC is over franchises and permits, NOT individuals. For example, COMELEC may not regulate media practitioners, for this would violate the freedom of expression. PARTY LIST SYSTEM Importance of registration of a political party Registration confers juridical personality on the party It informs the public of the partys existence and ideals It identifies the party and its officers for purposes of regulation by the COMELEC Political parties, organizations, or coalitions registered under the party-list system shall NOT be represented in the following: 1). Voters registrations boards, 2). Boards of election inspectors, 3). Boards of canvassers, or 4). Other similar bodies. Poll Watchers Political parties, etc. are entitled to appoint poll watchers in accordance with law. FUNDING How provided 1. Funds certified by the COMELEC as necessary to defray the expenses for holding regular and special elections, plebiscites, initiative, referenda and recalls, shall provided in the regular or special appropriations. 2. Funds should be certified by the COMELEC as necessary. Release of funds Once approved, funds should be released automatically upon certification by the Chairman of COMELEC.

THE COMMISSION ON AUDIT Composition: 1. Chairman, and 2. Commissioners (2). Qualifications: 1. Natural-born citizens of the Philippines 2. At least 36 years old at the time of their appointment; 3. Either: a). CPAs with at least 10 years auditing experience; or b). Members of Phil. Bar with 10 years of practice. 1. Members cannot all belong to the same profession. 2. Subject to confirmation of the CA. 3. Must not have been candidates for any elective position in the elections immediately preceding their appointment. Term: 1. Chairman -7 yrs; Commissioner1 -5yrs; Commissioner - 2 -3 yrs. 2. LIMITATION: - Single terms only; no re-appointment allowed 3. Appointments to any vacancy shall only be for the unexpired portion of predecessors term POWERS 1. Examine, audit, and settle accounts pertaining to: A. Revenue and receipts of funds or property; or B. Expenditures and uses of funds or property Owned or held in trust by, or pertain to: A. The Government; B. Any of its subdivisions, agencies or instrumentalities; C. Including GOCCs with original charters. 1. Conduct post-audit with respect to the following: A. Constitutional bodies, commissions, and offices granted fiscal autonomy; B. Autonomous state colleges and universities; C. GOCCs and their subsidiaries incorporated under the Corporation Code. D. Non-governmental entities receiving subsidies or equity, directly or indirectly, from or through the government, which are required by law of the granting of institution to submit to such audit. 1. If COA finds internal control system of audited agencies as inadequate, COA may adopt measures, including temporary or special pre-audit, as may be necessary. 1. Keep the general accounts of the government, preserving vouchers and other supporting papers pertaining thereto. 1. Exclusive authority to define the scope of COAs audit and examination and to establish the techniques and methods required therefor. 2. Promulgate accounting and auditing rules and regulations. A. Including those for the prevention or disallowance of irregular, unnecessary, excessive, extravagant, or unconscionable expenditures or uses of government funds and properties. B. Failure to comply with these rules can be a ground for disapproving the payment of a proposed expenditure. COA can settle only LIQUIDATED ACCOUNTS or those accounts which may be adjusted simply by arithmetic process. COA has authority not just over accountable officers but also over other officers who perform functions related to accounting such as verification of evaluations and computation of fees collectible, and the adoption of internal rules of control. COA does not have the power to fix the amount of an unfixed or undetermined debt. Where the following requirements are complied with, it becomes the ministerial duty of the COA to approve and

pass in audit vouchers for payment: A. There is a law appropriating funds for a particular purpose; B. There is a contract, made by the proper officer, entered into in conformity with the above-mentioned law; C. The goods or services covered by such contract have been delivered or rendered in pursuance to such contract, as attested by the proper officer; and D. Payment has been authorized by officials of the corresponding department or bureau. Prosecutors may still review accounts already settled and approved by COA for the purpose of determining possible criminal liability. This is because COAs interest in such accounts is merely administrative. COA has the power to determine the meaning of public bidding and what constitutes failure when regulations require public bidding for the sale of government property. No law shall be passed exempting any entity of the Government or its subsidiary in any guise whatever, or any investment of public funds, from the jurisdiction of the Commission on Audit. ARTICLE X - LOCAL GOVERNMENT TERRITORIAL/POLITICAL SUBDIVISIONS OF THE REPUBLIC OF THE PHILIPPINES ARE THE: Composition: 1. Provinces 2. Cities; 3. Municipalities; and 4. Barangays There shall be Autonomous regions in: 1. Muslim Mindanao, and 2. Cordilleras [At present, it is only the Cordillera ADMINISTRATIVE region] Notes: A third autonomous regions would require a constitutional amendment. These political subdivisions, created by the Constitution cannot be replaced by AMENDMENT, and not by law. While Congress can abolish or eradicate individual units, it cannot abolish an entire class of LGUs Local Autonomy 1. All political subdivisions shall enjoy local autonomy 2. This does not mean that the LGUs are completely free from the central government. Judiciary may still pass on LGU actions President may exercise disciplinary power over LGU officials. PRESIDENTIAL SUPERVISION OF LGUS Supervision of President 1. The President exercises general supervision over all LGUs 2. The President exercises DIRECT supervision over A. Provinces B. Autonomous regions and C. Independent cities. 1. This power is limited to ensuring that lower officers exercise their functions in accordance with law. 2. The president cannot substitute his judgment for that of an LGU official unless the latter is acting contrary to law. 3. The President may, however, impose administrative sanctions against LGU officials, such as suspension for 120 days, and may even remove them from their posts, in accordance with law. 4. Provinces exercise direct supervision over component cities and municipalities. 5. Cities and municipalities exercise direct supervision over component barangays.

Limitations on the Power to create own sources of revenue 1. It is subject to such guidelines and limitations as Congress may provide. See Local Government Code for examples. 2. The guidelines set by Congress should be consistent with the basic policy of local autonomy. The taxes, fees and charges shall accrue exclusively to the local governments. Internal Revenue Allotment (IRA) 1. Share of LGUs in national taxes is limited to the internal revenue taxes. 2. The share of each LGU should be released, without need of any further action, directly to the provincial, city, municipal or barangay treasurer. Release is made on a quarterly basis within 5 days after the end of each quarter. 3. The share of each LGU should not be subject to any lien or holdback that may be imposed by the national government for whatever purpose. 4. Each LGU should appropriate in its annual budget at least 20% of its annual IRA for development projects. 5. Adjustments in IRA A. Ground: Unmanageable public section deficit B. President can make the necessary adjustments in the IRA upon the recommendation of the following: 1. DOF Secretary 2. DILG Secretary 3. DBM Secretary 4. IRA considered for purposes of conversion from one political subdivision to the next. (Alvarez v. Guingona) Share of LGUs in national wealth 1. LGUs are entitled to an equitable share in the proceeds of the utilization and development of the national wealth within their respective areas in the manner provided by law. 2. This includes share the same with the inhabitants by way of direct benefits. Under the LGC 1. LGUs have a share of 40% of the gross collection derived by the national government from the preceding fiscal year from A. Mining taxes B. Royalties C. Forestry and fishery charges D. Other taxes, fees and charges E. Share in any co-production, joint venture or production sharing agreement in the utilization and development of the national wealth w/in their territorial jurisdiction TERM OF OFFICE Elective local officials, now including barangay officials have a term of 3 years. Limitations: 1. No elective official shall serve for more than 3 consecutive terms 2. Voluntary renunciation of 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. SECTORAL REPRESENTATION IN LGUS There should be representatives from: 1. The womens sector 2. The workers 3. Third sector (can choose from any of the following) A. Urban poor B. Indigenous cultural communities C. Disabled persons D. Any other sector as may be determined by the sanggunian Creation, abolition and division of LGUs

1. Requisites A. Compliance with the requirements of the Local Government Code; and B. Approved by a majority of the votes cast in a plebiscite held in the political units DIRECTLY affected. 1. Thus, a province is supposed to be divided into 2 separate provinces, plebiscite will include voters of the ENTIRE province, and not just the area to comprise the new province. 2. LGC requirements relate to matters such as population, revenue, and area requirements. Special Metropolitan political subdivisions Creation: 1. Congress may create special metropolitan political subdivisions by law. 2. It is subject to a plebiscite Jurisdiction of Metropolitan authority It is limited to basic services requiring coordination. Basic Autonomy of Component Cities and Municipalities 1. The component cities and municipalities retain their basic autonomy 2. They shall be entitled to their own local executive and legislative assemblies. CITIES Classification of Cities: 1. Highly urbanized (as determined by law) 2. Component cities (cities still under provincial control); and 3. Independent component cities (non-highly urbanized cities whose voters are prohibited by thecity charter from voting in provincial elections) Independence from the Province 1. Highly urbanized cities and independent component cities are independent of the province. 2. Component cities whose charter contain no such prohibition are still under the control of the province and its voters may still vote for elective provincial officials. Consolidation and Coordination of Efforts, Services and Resources 1. It is optional on the part of LGUs as shown by the use of the word may 2. It can be done for purposes commonly beneficial to them in accordance with the law. Under LGC (Section 33) 1. Consolidation and coordination may be done through appropriate ordinances. 2. A public hearing should be conducted and the approval of the sanggunian obtained. 3. An LGU can: A. Contribute funds, real estate, equipment and other kinds of property B. Appoint/assign personnel under such terms and conditions as may be agreed upon by the participating LGUs through Memoranda of Agreement. REGIONAL DEVELOPMENT COUNCILS Who can provide for RDC The President shall provide for RDC or other similar bodies composed of: Composition 1. Local government officials 2. Regional heads of departments and other government offices 3. Representatives of NGOS within the regions For Purpose of 1. Administrative decentralization 2. To strengthen local autonomy 3. To accelerate the economic and social growth and development of the units in the region

AUTONOMOUS REGIONS Where: Muslim Mindanao, Cordillera region Factors: 1. Historical heritage 2. Cultural heritage 3. Economic and social structures, 4. Other relevant characteristics within: A. The framework of the constitution B. National sovereignty C. Territorial integrity. Creation: 1. Provided by law. 2. EFFECTIVITY of such creation occurs only when it is approved by a majority of the votes cast in a plebiscite held among the constituent units. 3. Only those Provinces, Cities, and Geographical Areas voting favorably in such plebiscite shall form part of the autonomous region. 4. If only 1 province approved the law, NO AUTONOMOUS REGION created, since the constitution requires more than one province to constitute one (like what happened in the Cordillera plebiscite) 5. The question of which LGUs shall constitute an autonomous region is one which is exclusively for Congress to decide. GENERAL SUPERVISION OVER AUTONOMOUS REGIONS By Whom: The President Purpose: To ensure that the laws are faithfully executed. All powers, functions and responsibilities not granted by this Constitution or by law to the autonomous region shall be vested in the National Government. Examples: Foreign relations, National defense and Security, Monetary Affairs LEGISLATIVE POWERS The Organic Act of Autonomous Region shall provide for legislative powers over: 1. Administrative organization; 2. Creation of sources of revenues; 3. Ancestral domain and natural resources 4. Personal, family and property relations 5. Regional, urban, and rural planning development; 6. Economic, social, and tourism development; 7. Educational policies; 8. Preservation and development of the cultural heritage; and 9. Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region. Limitations: 1. Subject to the provisions of the Constitution and national laws 2. To be exercised within its territorial jurisdiction

PRESERVATION OF PEACE AND ORDER/DEFENSE AND SECURITY Peace and Order It shall be the responsibility of the local police agencies. Defense and Security It shall be the responsibility of the national government. An autonomous region consists of provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics within the framework of the Constitution and the national sovereignty as well as the territorial integrity of the Republic of the Philippines. (Sec. 15, Art. X, 1987 Constitution) Administrative regions are mere groupings of contiguous provinces for administrative purposes. They are not territorial and political subdivisions like provinces, cities, municipalities and barangays. While the power to merge administrative regions is not expressly provided for in the Constitution, it is a power which has traditionally been lodged with the President to facilitate the exercise of the power of general supervision over local governments. (Abbas v. COMELEC, 179 SCRA 287, Nov. 10, 1989, En Banc [Cortes]) There is no conflict between the power of the President to merge administrative regions with the constitutional provision requiring a plebiscite in the merger of local government units because the requirement of a plebiscite in a merger expressly applies only to provinces, cities, municipalities or barangays, not to administrative regions. (Abbas v. COMELEC) MMDA is not a political unit of government. The power delegated to the MMDA is that given to the Metro Manila Council to promulgate administrative rules and regulations in the implementation of the MMDAs functions. There is no grant of authority to enact ordinances and regulations for the general welfare of the inhabitants of the metropolis. This was explicitly stated in the last Committee deliberations prior to the bills presentation to Congress. (MMDA v. Bel-Air Village Association, Inc., 328 SCRA 836) Autonomy is either: decentralization of administration or decentralization of power. decentralization of administration- when the central government delegates administrative powers to political subdivisions in order to broaden the base of government and in the process to make local governments more responsive and accountable, and ensure their fullest development as self-reliant communities and make them more effective partners in the pursuit of national development and social progress. At the same time, it relieves the central government of the burden of managing local affairs and enables it to concentrate on national concerns. The President exercises general supervision over them, but only to ensure that local affairs are administered according to law. He has no control over their acts in the sense that he can substitute their judgments with his own. Decentralization of power, on the other hand, involves an abdication of political

power in favor of local government units declared autonomous. In that case, the autonomous government is free to chart its own destiny and shape its own future with minimum intervention from central authorities. According to a constitutional author, decentralization of power amounts to self-immolation, since in that event, the autonomous government becomes accountable not to the central authorities but to its constituency. (Limbona v. Mangelin, 170 SCRA 786)

Requisites before a Local Government Unit can validly exercise the power of eminent domain An ordinance is enacted by the local legislative council authorizing the local chief executive, in behalf of the LGU, to exercise the power of eminent domain or pursue expropriation proceedings over a particular private property; 1. The power of eminent domain is exercised for public use, purpose or welfare, or for the benefit of the poor and the landless; 2. There is payment of just compensation, as required under Section 9, Article III of the Constitution, and other pertinent laws; 3. A valid and definite offer has been previously made to the owner of the property sought to be expropriated, but said offer was not accepted. (Municipality of Paranaque v. V.M. Realty Corp., 292 SCRA 678, July 20, 1998 [Panganiban]) Requisites before the President may interfere in local fiscal matters (1) an unmanaged public sector deficit of the national government; (2) consultations with the presiding officers of the Senate and the House of Representatives and the presidents of the various local leagues; and (3) the corresponding recommendation of the secretaries of the Department of Finance, Interior and Local Government, and Budget and Management. Furthermore, any adjustment in the allotment shall in no case be less than thirty percent (30%) of the collection of national internal revenue taxes of the third fiscal year preceding the current one. (Pimentel, Jr. v. Aguirre) Ordinance vs. resolution ordinance resolution a law merely a declaration of sentiment or opinion of a lawmaking body on a specific matter possesses a general and permanent character a 3rd reading is necessary temporary in nature

not required unless decided by majority of all the Sanggunian members

GENERAL RULE: Only the provincial fiscal, provincial attorney, and municipal attorney should represent a municipality in its

lawsuits. (Ramos v. CA, 269 SCRA 34) EXCEPTION: When the municipality is an adverse party in a case involving the provincial government or another municipality or city within the province.

Instances when the provincial fiscal may be disqualified to represent in court a particular municipality. 1. If and when original jurisdiction of case involving the municipality is vested in the Supreme Court; 2. When the municipality is a party adverse to the provincial government or to some other municipality in the same province; and 3. When, in a case involving the municipality, he, or his wife, or child, is pecuniarily involved, as heir, legatee, creditor or otherwise.(Ramos v. CA, 269 SCRA 34, March 3, 1997) ARTICLE XI - ACCOUNTABILITY OF PUBLIC OFFICERS IMPEACHABLE OFFICERS: President; Vice-president; Justices of the Supreme Court; Chairmen and Members of the Constitutional Commissions; Ombudsman Justices of the Sandiganbayan (PD 1606) Grounds Culpable violation of the Constitution treason bribery graft and corruption other high crimes or betrayal of public trust Note: It is an exclusive list. Congress cannot, by law, add to the list of impeachable offenses. These officers cannot be charged in court with offenses that have removal from office as penalty. The President cannot be charged with murder. A SC Justice cannot be disbarred because this would disqualify him from his position. BUT AFTER an official has been impeached, he can be charged with the appropriate offense. Resignation by an impeachable official does not place him beyond the reach of impeachment proceedings; he can still be impeached.

PROCEDURE FOR IMPEACHMENT Exclusive Power of House of Representatives The House of Representatives has exclusive power to INITIATE all cases of impeachment. Procedure: 1.) Filling of verified complaint Can be filed by: Any member of the House of Representatives or

Any citizen upon a resolution of endorsement by any Member of the House or By at least 1/3 of all the Members of the House of Representatives Inclusion of complaint in the order of business with 10 session days Referral to proper Committee within 3 session days thereafter Submission of Committee report to the House together with corresponding resolution There should be a hearing There should be a majority vote of the members The report should be submitted within 60 days from referral, after hearing, and by a majority vote of ALL its members. Calendaring of resolution for consideration by the House should be done within 10 session days from receipt thereof Vote of at least 1/3 of all Members of the House necessary to: Affirm a favorable resolution with the Articles of Impeachment of the Committee or To override its contrary resolution Note: If the verified complaint or resolution of impeachment was filed by at least 1/3 of all the Members of the House, it shall constitute the Articles of Impeachment. Trial in the Senate shall proceed. Limitation: No impeachment proceedings shall be initiated against the same official more than once within a period of one year. (Art. XI, sec.3 [5]) The term initiate refers to the filing of the impeachment complaint coupled with Congress taking taking initial action of said complaint. Having concluded that the initiation takes place by the act of filing and referral or endorsement of the impeachment complaint to the House Committee on Justice or by the filing by at least one-third of the members of the House of Representatives with the Secretary General of the House, the meaning of Section 3 (5) becomes clear. Once an impeachment complaint has been initiated, another impeachment complaint may not be filed against the same official within a one year period. (Francisco v. Nagmamalasakit na mga mga Manananggol ng mga Manggagawang Pilipino, Inc., 415 SCRA 44, Nov. 10, 2003 [Carpio-Morales])

7.)

Trial in the Senate Senate has the sole power to try and decide all cases of impeachment For this purpose, the Senators shall be under oath or affirmation When the President of the Philippines is on trial, the CJ of the Supreme Court presides. However, he/she will not vote. Judgment of Conviction This requires the concurrence of 2/3 of all the Members of the Senate Effect of the Impeachment Removal from office of the official concerned Disqualification to hold any office under the Republic of the Philippines Officer still liable to prosecution, trial, and punishment if the impeachable offense committed also constitutes a felony or crime.

SANDIGANBAYAN Sandiganbayan = the anti-graft court Composition: A Presiding Justice and 14 Associate Justices with the rank of Justice of the CA Sits in 5 divisions of 3 members each OFFICE OF THE OMBUDSMAN Composition: An Ombudsman to be known as Tanodbayan; 1 overall Deputy; and At least 1 Deputy each for Luzon, Visayas and Mindanao; A separate Deputy for the military establishment may likewise by appointed Qualifications: (Ombudsman and his deputies) Natural born citizen of the Philippines At least 40 years old at time of appointment Of recognized probity and independence Member of the Philippine bar Must not have been candidate for any elective office in the immediately preceding election For Ombudsman: He must have been for ten years or more (a) A judge or (b) Engaged in the practice of law in the Philippines Disqualifications/Prohibitions (under Article IX, Section 2) Cannot hold any other office or employment during his tenure Cannot engage in the practice of any profession or in the active management or control of any business which may be affected by the functions of his office Cannot 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 GOCCs or their subsidiaries Appointment 1. Of Ombudsman and deputies By the president from a list of at least 6 nominees prepared by the Judicial and Bar Council. Vacancies will be filled from a list of 3 nominees Appointments do NOT require confirmation All vacancies shall be filled within 3 months after they occur. 2. of other officials and employees of the Office of the Ombudsman By the Ombudsman In accordance with Civil Service Law

Term: (Ombudsman and deputies) 1. 7 years with reappointment 2. They are NOT qualified to run for any office in the election immediately succeeding their cessation from office Rank/Salaries: 1. The Ombudsman has the rank of Chairman of a Constitutional Commission 2. The Members have the rank of members of a Constitutional Commission 3. Their salaries cannot be decreased during their term of office. Jurisdiction of the Sandiganbayan:

original Jurisdiction violations of R.S. 3019, R.A. 1379, Chapter II,Sec 2, Title VII, Book II of the Revised Penal Code where one or more of the accused are officials occupying the following positions in the government, whether in permanent, acting or interim capacity at one time of the commission of the offense: officials in the Executive branch with the position of regional director or higher, or with Salary Grade Level 27(G27) according to R.A.6758 members of Congress and officials thereof with G27 and up members of the Judiciary without prejudice to the Constitution chairmen and members of the Constitutional Commissions without prejudice to the Constitution; and all other national and local officials with G27 or higher; Other offenses or felonies whether simple or complexed with other crimes committed by the public officials and employees mentioned in Subsection a in relation to their office; Civil and criminal cases filed pursuant to and in connection with E.O. nos. 1,2 and 14-A issued in 1986. Exclusive Original Jurisdiction over petitions for the issuance of the writs of mandamus, prohibitions, certiorari, habeas corpus. Injunction and other ancillary writs and processes in aid of its appellate jurisdiction, Provided, that jurisdiction over these petitions shall not be exclusive of the Supreme Court; and Exclusive Appellate Jurisdiction over final judgments, resolutions or orders of Regional Trial Courts whether in the exercise of their own original jurisdiction or of their appellate jurisdiction. (RA 8249) Powers, Functions and Duties of the Office of the Ombudsman 1. Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient. The Ombudsman may always delegate his power to investigate. The power to investigate includes the power to impose preventive suspension. This preventive suspension is not a penalty. INVESTIGATE does not mean preliminary investigation. The complaint need not be drawn up in the usual form. The ILLEGAL act or omission need not be in connection with the duties of the public officer or employee concerned. ANY illegal act may be investigated by the Ombudsman. In this regard, the Ombudsmans jurisdiction is CONCURRENT with that of the regular prosecutors. Direct, upon complaint or at its own instance, any public official or employee of the government, or any subdivision, agency or instrumentality thereof, as well as of any government-owned or controlled corporation with original charter, to perform and expedite any act of duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties. The Ombudsman has PERSUASIVE POWER, and may require that proper legal steps are taken by the officers concerned. The public official or employee must be employed in: The Government Any subdivision, agency, or instrumentality thereof; or GOCCs with original charters The SC has held that the SP may prosecute before the Sandiganbayan judges accused of graft and corruption, even if they are under the Supreme Court. 3.) Direct the officer concerned to take the appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith. The Ombudsman does NOT himself prosecute cases against public officers or employees. Final say to prosecute still rests in the executive department.

The Ombudsman or Tanodbayan may use mandamus to compel the fiscal to prosecute. 4.) Direct the officer concerned, in any appropriate case, and subject to such limitations as may be provided by law to furnish it with copies of documents relating to contracts or transactions entered into by his office involving the disbursement or use of public funds of properties, and report any irregularity to COA for appropriate action. 5.) Request any government agency for assistance and information necessary in the discharge of its responsibilities, and to examine, if necessary, pertinent records and documents. 6.) Public matters covered by its investigation when circumstances so warrant and with due process 7.) Determine the cause of inefficiency, red tape, mismanagement, fraud and corruption in the government and make recommendations for their elimination and the observance of high standards of ethics and efficiency 8.) Promulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be provided by law Note The Office of the Ombudsman also has the duty to act promptly on complaints filed in any form or manner against public officials or employees of the government, or any subdivision, agency or instrumentality including GOCCs and their subsidiaries. In appropriate cases, it should notify the complainants of the action taken and the result thereof. Fiscal Autonomy: The Office of the Ombudsman enjoys fiscal autonomy. automatically and regularly released. OFFICE OF THE SPECIAL PROCECUTOR Under the 1987 Constitution, the existing Tanodbayan became the Office of the Special Prosecutor Powers It will continue to function and exercise its powers as now or hereafter may be provided by law Exception: Powers conferred on the Office of the Ombudsman 3. The Office of the Special Prosecutor is subordinate to and acts under the orders of the Ombudsman Note: According to Jack, the SC was wrong because the ConCom intended that the SP was to prosecute antigraft cases. RECOVERY OF ILL-GOTTEN WEALTH Prescription, Laches, Estoppel The right of the State to recover properties unlawfully acquired by public officials and employees from them or from their nominees or transferees shall NOT be barred by prescription, laches or estoppel. Their right to prosecute criminally these officials and employees may prescribe. PROHIBITION ON CERTAIN FINANCIAL TRANSACTIONS Coverage: This prohibition applies to: President Vice-President Members of the Cabinet Members of Congress Members of Supreme Court Members of ConComs Ombudsman Its approved annual appropriations should be

Any firm or entity in which they have controlling interest Prohibition applies during their TENURE. Scope of prohibition: The above mentioned officials cannot obtain, directly or indirectly for BUSINESS PURPOSES: Loans Guarantees Other forms of financial accommodation From: Government owned or controlled banks; or Government owned or controlled financial institutions. If the loan, etc, is NOT for business purpose, e.g. a housing loan, the prohibition does not apply. Statements of assets, liabilities and net worth When submitted: Public officer and employee shall submit a declaration under oath of his assets, liabilities and net worth upon assumption of office and as often as required under the law. When declaration shall be disclosed to the public: In a manner provided by law in the case of: President Vice-President Members of the Cabinet Members of Congress Justices of the Supreme Court Members of Constitutional Commissions Other constitutional offices Officers of the armed forces with general or flag rank Allegiance of public officers and employees Allegiance to the State and to the Constitution Change in Citizenship/Immigrant Status Incumbent public officers and employees who seek either: Change his citizenship; or Acquire immigrant status in another country Shall be dealt with by law. If Philippine citizenship is one of the qualifications to the office, the loss of such citizenship means the loss of the office by the incumbent. The Election Code provides the rules with respect to non-incumbents, i.e. persons running for elective offices. The Code provides that permanent residents of or immigrant to a foreign country cannot file certificates of candidacy unless they expressly waive their status as such. This renunciation must be some other than, and prior to, the filling of the certificate of candidacy. ARTICLE XII NATIONAL ECONOMY AND PATRIMONY GOALS OF THE NATIONAL ECONOMY 1. More equitable distribution of wealth; 2. Sustained increase of goods and services for the benefit of the people; and 3. Increased productivity

REGALIAN DOCTRINE Universal feudal theory that all lands were held from the Crown Exception: any land in the possession of an occupant and of his predecessors-in-interest since time immemorial Distinction between Imperium and Dominium Imperium - Government authority possessed by the State which is appropriately embraced in sovereignty. 2. Dominium The capacity of the State to own and acquire property. It refers to lands held by the government in a proprietary character: can provide for the exploitation and use of lands and other natural resources. The following are owned by the State: Lands of the public domain: Waters Minerals, coals, petroleum, and other mineral oils; All sources of potential energy; Fisheries; Forests or timber; Wildlife; Flora and fauna; and Other natural resources. Alienation of Natural Resources 1. General Rule: All natural resources CANNOT be alienated 2. Exception: Agricultural lands Exploration, Development and Utilization of Natural Resources 1. Shall be under the full control and supervision of the State 2. Means The state may DIRECTLY UNDERTAKE such activities The state may enter into CO-PRODUCTION, JOINT VENTURE OR PRODUCTION-SHARING arrangements with Filipino citizen or Corporation or association at least 60% of whose capital is owned by such citizens 3. Limitations: Period: It should not exceed 25 years, renewable for not more than 25 years Under terms and conditions as may be provided by law. 4. In case of water rights/water supply/fisheries/industrial uses other than the development of water power The beneficial use may be the measure and limit of the grant.

Small-scale Utilization of Natural Resources 1. Congress may, by law, authorize small-scale utilization of natural resources by Filipino citizens 2. Congress may also authorize cooperative fish farming with priority given to subsistence fishermen and fish workers in the rivers, lakes, bays and lagoons. Large-Scale Exploration, Development and Utilization of Minerals/Petroleum/Other Mineral Oils 1. The President may enter into agreements with foreign owned corporations involving technical or financial assistance for large-scale exploration etc. of minerals, petroleum, and other mineral oils. These agreements

should be in accordance with the general terms and conditions provided by law. 2. They should be based on the real contributions to economic growth and general welfare of the country. 3. In the agreements, the State should promote the development and use of local scientific and technical resources. 4. The President should notify Congress of every contract under this provision within 30 days from its execution. 5. Management and service contracts are not allowed under this rule. Protection of Marine Wealth The State shall protect its marine wealth in its archipelagic waters, territorial sea & exclusive economic zones The State shall reserve its use and enjoyment exclusively to Filipino citizens. LANDS OF THE PUBLIC DOMAIN ARE CLASSIFIED INTO 1. 2. 3. 4. Agricultural Forest/timber Mineral lands & National Parks

Note: Classification of public lands is an exclusive prerogative of the Executive Department through the Office of the President, upon recommendation by the DENR. Classification is descriptive of the legal nature of the land and NOT what it looks like. Thus, the fact that forest land is denuded does not mean it is no longer forest land. Alienable lands of public domain 1. Only agricultural lands are alienable. 2. Agricultural lands may be further classified by law according to the uses to which they may be devoted. Limitations regarding Alienable Lands of the Public Domain 1. For private corporations or associations They can only hold alienable lands of the public domain BY LEASE Period: Cannot exceed 25 years, renewable for not more than 25 years Area: Lease cannot exceed 1,000 hectares Note A corporation sole is treated like other private corporations for the purpose of acquiring public lands. 2. For Filipino citizens Can lease up to 500 hectares Can ACQUIRE not more than 12 hectares by purchase, homestead or grant Means by Which Lands of the Public Domain Become Private Land 1. Acquired from government by purchase or grant; 2. Uninterrupted possession by the occupant and his predecessors-in-interest since time immemorial; and 3. Open, exclusive, and undisputed possession of ALIENABLE (agricultural) public land for a period of 30 years. Upon completion of the requisite period, the land becomes private property ipso jure without need of any judicial or other sanction. Here, in possession since time immemorial, presumption is that the land was never part of public domain. In computing 30 years, start from when land was converted to alienable land, not when it was still forest land Presumption is that land belongs to the State. ANCESTRAL LANDS The Rights of Indigenous Cultural Communities/Indigenous Peoples

The Indigenous Peoples Rights Act (R.A. No. 8371. The IPRA recognizes the existence of the indigenous cultural communities or indigenous peoples (ICCs/IPs) as a distinct sector in Philippine society. It grants these people the ownership and possession of their ancestral domains and ancestral lands, and defines the extent of these lands and domains. The ownership given is the indigenous concept of ownership under customary law which traces its origin to native title. (Separate Opinion, Puno, J., in Isagani Cruz v. Secretary of DENR) Indigenous Cultural Communities or Indigenous Peoples - refer to a group of people or homogeneous societies who have continuously lived as an organized community on communally bounded and defined territory. Ancestral domains and ancestral lands - the private property of indigenous peoples and do not constitute part of the land of the public domain. PRIVATE LANDS General rule 1. Private lands CAN only be transferred or conveyed to: A. Filipino citizens B. Corporations or associations incorporated in the Philippines, at least 60% of whose capital is owned by Filipino citizens Exceptions In intestate succession, where an alien heir of a Filipino is the transferee of private land. A natural born citizen of the Philippines who has lost his Philippine citizenship may be a transferee of PRIVATE ALND, subject to limitation provided by law. Hence, land can be used only for residential purposes. In this case, he only acquires derivative title. Foreign states may acquire land but only for embassy and staff residence purposes. 2. Filipino citizenship is only required at the time the land is acquired. Thus, loss of citizenship after acquiring the land does not deprive ownership. 3. Restriction against aliens only applies to acquisition of ownership. Therefore: A. Aliens may be lessees or usufructuaries of private lands B. Aliens may be mortgages of land, as long as they do not obtain possession thereof and do not bid in the foreclosure sale. Land tenure is not indispensable to the free exercise of religious profession and worship. corporation controlled by non-Filipinos cannot acquire and own land, even for religious purposes. A religious

Stewardship doctrine Private property is supposed to be held by the individual only as a trustee for the people in general, who are its real owners Remedies to recover private lands from disqualified aliens: Escheat proceedings Action for reversion under the Public Land Act An action by the former Filipino owner to recover the land The former pari delicto principle has been abandoned Alien still has the title (didnt pass it on to one who is qualified)

NATIONAL ECONOMY AND PATRIMONY/INVESTMENTS Power of Congress 1. Upon the recommendation of NEDA, can reserve to Filipino citizens or to corporations or associations at least 60% of whose capital is owned by such citizens, or such higher percentage as Congress may prescribe certain areas of investment. This may be done when the national interest dictates. 2. Enact measures to encourage the formation and operation of enterprises whose capital is wholly owned by Filipinos. In the grant of rights, privileges and concessions covering the national economy and patrimony, the State shall give preference to QUALIFIED Filipinos. FRANCHISES FOR PUBLIC UTILITIES Power to grant: 1. Congress may directly grant a legislative franchise; or 2. Power to grant franchises may be delegated to appropriate regulatory agencies and/or LGUs Public utility 1. In order to be considered as a public utility, and thus subject to this provision, the undertaking must involve dealing directly with the public. 2. Thus, a Build-Operate-Transfer grantee is NOT a public utility. The BOT grantee merely constructs the utility, and it leases the same to the government. It is the government which operates the public utility (operation separate from ownership). To whom granted: Filipino citizens or Corporations or associations incorporated in the Philippines and at least 60% of the capital is owned by Filipino citizens. Terms and conditions: 1. Duration: Not more than 50 years 2. Franchise is NOT exclusive in character 3. Franchise is granted under the condition that it is subject to amendment, alteration, or repeal by Congress when the common good so requires. Participation of Foreign Investors limited to their proportionate share in its capital. Foreigners cannot be appointed as the executive and managing officers because these positions are reserved for Filipino citizens. FORMATION/ORGANIZATION/REGULATION OF CORPORATIONS 1. Private corporations Congress can only provide for the formation, etc of private corporations through a general law. 2. GOCCs May be created by: a. Special charters in the interest of the common good and subject to the test of economic viability. b. By incorporation under the general corporation law. SPECIAL ECONOMIC POWERS OF THE GOVERNMENT 1. Temporary takeover or direction of operations: A. Conditions i. National emergency and ii. When the public interest requires B. May be used against privately owned public utilities or businesses affected with public interest.

C. Duration of the takeover: period of emergency D. Takeover is subject to reasonable terms and conditions E. No need for just compensation because it is only temporary. 2. Nationalization of vital industries: A. Exercised in the interest of national welfare or defense B. Involves either: i. Establishment and operation of vital industries, or ii. Transfer to public ownership, upon payment of just compensation, public utilities and other private enterprises to be operated by the government. MONOPOLIES 1. The Constitution does NOT prohibit the existence of monopolies. 2. The State may either regulate or prohibit monopolies, when public interest so requires. 3. Combinations in restraint of trade or unfair competition are prohibited. Filipino citizenship or equity requirements: ACTIVITY Exploitation of natural resources Operation of Public Utilities CITIZENSHIP AND/OR EQUITY REQUIREMENTS 1. Filipino citizens; or 2. Corporations incorporated in RP, with 60% Filipino ownership 1. Filipino citizens; or 2. Corporations incorporated in RP, with 60% Filipino ownership 1. Filipino citizens; or 2. Corporations incorporated in RP, with 60% Filipino ownership 3. Former natural-born citizens of RP, as transferees, with certain legal restrictions; and 4. Alien heirs as transferees in case of intestate succession. Filipino Citizens only (natural persons) *But Congress may, by law, otherwise prescribe 1. Filipino citizens; or 2. Corporations incorporated in RP, and 100% Filipino owned 1. Filipino citizens; or 2. Corporations incorporated in RP, and 70% Filipino owned 1. Filipino citizens; or

Acquisition of alienable lands of the public domain

Practice of ALL professions

Mass media

Advertising

Educational

Institution 2. Corporations incorporated in RP, and 60% Filipino owned EXCEPT: Schools established by religious groups and mission boards. Congress may, by law, increase Filipino requirements for ALL educational institutions Congress may, by law, reserve to Filipino citizens or to corporations 60% Filipino owned (or even higher) certain investment areas. ARTICLE XIII SOCIAL JUSTICE AND HUMAN RIGHTS Social Justice 1) Social justice in the Constitution is principally the embodiment of the principle that those who have less in life should have more in law. 2) The 1987 Constitution advances beyond what was in previous Constitutions in that it seeks not only economic social justice but also political social justice. Principal activities in order to achieve social justice 1) Creation of more economic opportunities and more wealth; and 2) Closer regulation of the acquisition, ownership, use and disposition of property in order to achieve a more equitable distribution of wealth and political power. Labor Section 3 of Article XIII elaborates on the provision in Article II by specifying who are protected by the Constitution, what rights are guaranteed, and what positive measures the state should take in order to enhance the welfare of labor. Right to organize and to hold peaceful concerted activities The right to organize is given to all kinds of workers BOTH in the PRIVATE and PUBLIC sectors. The workers have a right to hold peaceful concerted activities except the right to strike, which is subject to limitation by law. Right to participate in the decision making process of employers The workers have the right to participate on matters affecting their rights and benefits, as may be provided by law. This participation can be through 1) Collective bargaining agreements, 2) Grievance machineries, 3) Voluntary modes of settling disputes, and 4) Conciliation proceedings mediated by government.

Other economic activities

Agrarian Reform Goals: 1) Efficient production, 2) A more equitable distribution of land which recognizes the right of farmers and regular farm workers who are landless to own the land they till, and 3) A just share of other or seasonal farm workers in the fruits of the land. CARL as an exercise of police power and power of eminent domain To the extent that the law prescribes retention limits for landowners, there is an exercise of police power. But where it becomes necessary to deprive owners of their land in excess of the maximum allowed there is compensable taking and therefore the exercise of eminent domain. Reach of agrarian reform It extends not only to private agricultural lands, but also to other natural resources, even including the use and enjoyment of communal marine and fishing resources and offshore fishing grounds. The Commission on Human Rights Composition: 1) Chairman; and 2) 4 members Qualifications: 1) Natural-born citizens of the Philippines; 2) Majority of the Commission must be members of the Philippine Bar; 3) Term of office, other qualifications and disabilities shall be provided by law; 4) The appointment of the CHR members is NOT subject to CA confirmation; and 5) The CHR is not of the same level as the COMELEC, CSC, or COA. Powers: 1) Investigate all forms of human rights violations involving civil or political rights Violations may be committed by public officers or by civilians or rebels. CHR cannot investigate violations of social rights. CHR has NO adjudicatory powers over cases involving human rights violations. They cannot investigate cases where no rights are violated. Example: There is no right to occupy government land, i.e. squat thereon. Therefore, eviction therefrom is NOT a human rights violation. 2) Adopt operational guidelines and rules of procedure. 3) Cite for contempt for violations of its rules, in accordance with the Rules of Court. 4) Provide appropriate legal measures for the protection of the human rights of all persons, within the Philippines, as well as Filipinos residing abroad, and provide for preventive measures and legal aid services to the underprivileged whose human rights have been violated or need protection. CHR can initiate court proceedings on behalf of victims of human rights violations. They can recommend the prosecution of human rights violators, but it cannot itself prosecute these cases. BUT: The CHR cannot issue restraining orders or injunctions against alleged human rights violators. These must be obtained from the regular courts. 5) Exercise visitorial powers over jails, prisons and other detention facilities. 6) Establish continuing programs for research, education and information in order to enhance respect for the primacy of human rights. 7) Recommend to Congress effective measures to promote human rights and to provide compensation to victims of human rights violations or their families. 8) Monitor compliance by the government with international treaty obligations on human rights. 9) Grant immunity from prosecution to any person whose testimony or whose possession of documents or other evidence is necessary or convenient to determine the truth in any CHR investigation. 10) Request assistance from any department, bureau, office, or agency in the performance of its functions. 11) Appoint its officers and employers in accordance with law.

12) Perform such other functions and duties as may be provided for by law. ARTICLE XIV - EDUCATION, SCIENCE AND TECHNOLOGY, ARTS, CULTURE, AND SPORTS Education: Goals of the State: The State shall promote and protect: The right to quality education at all levels; The right to affordable and accessible education; and Education that is relevant to the needs of people and society. Right to Education and Academic Freedom The right to education must be read in conjunction with the academic freedom of schools to require fair, reasonable, and equitable admission requirements. Power to Dismiss Students 1) Schools have the power to dismiss students, after due process, for disciplinary reasons. 2) Acts committed outside the school may also be a ground for disciplinary action if: a) It involves violations of school policies connected to school-sponsored activities; or b) The misconduct affects the students status, or the good name or reputation of the school. Regulation of Right to Education The right to education in particular fields may be regulated by the State in the exercise of its police power, e.g. the State may limit the right to enter medical school by requiring the applicants to take the NMAT. Free Education 1) The State shall maintain a system of free education in: a) Elementary level, and b) High school level. 2) Elementary education is compulsory for all children of school age. However, this is a moral rather than a legal compulsion.

Educational Institutions I. Filipinization A. Ownership: Filipino citizens, or Corporations incorporated in RP and 60% Filipino-owned. EXCEPT: Schools established by religious groups and mission boards. Congress may increase Filipino equity requirements in ALL educational institutions. B. Control and Administration: Must be vested in Filipino citizens Refers to line positions, such as President, Dean, Principal, and Trustees Faculty members may be foreigners. C. Student Population: GENERAL RULE: Cannot establish school exclusively for aliens. Aliens can only comprise up to 1/3 of total enrollment. EXCEPTIONS: Schools established for foreign diplomatic personnel and their dependents, and unless otherwise provided for by law for other foreign temporary residents. II. Tax Exemptions Non-stock, non-profit educational institutions: All revenues and assets actually, directly and exclusively used for educational purposes are exempt from taxes and duties.

This is self-executory. 2.Proprietary educational institutions, including cooperatives: Entitled to exemptions as may be provided by law, including restrictions on dividends and reinvestment Requires an enabling statute Grants, endowments, donations and contributions actually, directly and exclusively used for educational purposes are exempt from taxes, subject to conditions prescribed by law. Academic Freedom A. Educational Institutions Schools have the freedom to determine: 1) Who may teach, 2) What may be taught, 3) How it shall be taught, and 4) Who may be admitted to study. B. Faculty members 1) Full freedom in research and in the publication of the results, subject to the adequate performance of their other academic duties. 2) Freedom in the classroom in discussing their subjects, but they should be careful not to introduce into their teaching controversial matter which has no relation to their subjects. 3) When faculty members speak or write in their capacity as citizens, then they are free from institutional censorship or discipline. C. Students - have the right to enjoy in school the guarantees of the Bill of Rights. D. Limitations 1) Dominant police power of the State 2) Social interest of the community E. Budgetary Priority: Education must be assigned the highest budgetary priority. BUT: This command is not absolute. Congress is free to determine what should be given budgetary priority in order to enable it to respond to the imperatives of national interest and for the attainment of other state policies or objectives. Religious Education in Public Schools: Religion may be taught in public schools subject to the following requisites: 1) Express written option by parents and guardians; 2) Taught within regular class hours; 3) Instructors are designated and approved by the proper religious authorities; and 4) WITHOUT ADDITIONAL COST TO THE GOVERNMENT. Language National language: Filipino Official Languages: Filipino, and unless otherwise provided by law, English Regional languages are auxiliary to the official languages. (Spanish and Arabic are promoted only on an optional and voluntary basis. ARTICLE XVI - GENERAL PROVISIONS Symbols of Nationality 1) Flag Red, white, and blue. With a sun and 3 stars

The design may be changed by constitutional amendment. 2) Congress may, by law, adopt a new: (a) Name for the country, (b) National anthem, or (c) National seal. Note: Law will take effect upon ratification by the people in a NATIONAL REFERENDUM. THE ARMED FORCES OF THE PHILIPPINES Composition: A citizen armed force Prohibitions and disqualifications: 1) Military men cannot engage, directly or indirectly, in any partisan political activity, except to vote. 2) Members of the AFP in active service cannot be appointed to a civilian position in the government, including GOCCs or their subsidiaries. The Chief of Staff: General rule: Tour of duty: Not exceed to three years EXCEPTION: In times of war or other national emergency as declared by Congress, the President may extend such tour of duty. ARTICLE XVII AMENDMENTS OR REVISIONS AMENDMENT An alteration of one or a few specific provisions of the Constitution. Its main purpose is to improve specific provisions of the Constitution. The changes brought about by amendments will not affect the other provisions of the Constitution. REVISION An examination of the entire Constitution to determine how and to what extent it should be altered. A revision implies substantive change, affecting the Constitution as a whole

Constituent power 1. The power to formulate a Constitution or to propose amendments to or revisions of the Constitution and to ratify such proposal

Legislative power 1. The power to pass, repeal or amend ordinary laws or statutes (as opposed to organic law)

2. It us exercised by Congress (by special constitutional conferment), by a Constitutional Convention or Commission, by the people through initiative and referendum, and ultimately, by the sovereign electorate 3. The exercise of constituent power does not need the approval of the Chief Executive

2. It is an ordinary Power of Congress and Of the people, also Through initiative and referendum

3. The exercise of Legislative power ordinarily needs the approval of the Chief Executive, except when done by people through initiative and referendum.

Three (3) steps necessary to give effect to amendments and revisions: proposal of amendments or revisions by the proper constituent assembly; submission of the proposed amendments or revisions; and ratification

Proposal of amendments: Amendments may be proposed by: Congress, acting as a constituent assembly, by a vote of all its members. The power of Congress to propose amendments is NOT part of its ordinary legislative power The only reason Congress can exercise such power is that the Constitution has granted it such power Constitutional Convention: How a Constitutional Convention may be called Congress may call a ConCon by a 2/3 vote of all its members; or By a majority vote of all its members, Congress may submit to the electorate the question of whether to call a ConCon or not Choice of which constituent assembly (either Congress or ConCon) should initiate amendments and revisions is left to the discretion of Congress. In other words, it is a political question BUT: the manner of calling a ConCon is subject to judicial review, because the Constitution has provided for voting requirements

If Congress, acting as a constituent assembly, calls for a ConCon but does not provide the details for the calling of such ConCon, Congress exercising its ordinary legislative power may supply such details. But in so doing, Congress (as legislature) should not transgress the resolution of Congress acting as a constituent assembly Congress, as a constituent assembly and the ConCon have no power to appropriate money for their expenses. Money may be spent from the treasury only pursuant to an appropriation made by law. Peoples Initiative Petition to propose such amendments must be signed by at least 12% of ALL registered voters Every legislative district represented by at least 3% of the registered voters therein Limitation: it cannot be exercised more often than once every 5 years RA 6735 (System of Initiative and Referendum) does not authorize a system of initiative to amend the Constitution. The law was deemed sufficient to cover only the systems of initiative on national and local legislation NOTE: While the substance of the proposals made by each type of constituent assembly is not subject to judicial review, the manner the proposals are made is subject to judicial review Since these constituent assemblies owe their existence to the Constitution, the courts may determine whether the assembly has acted in accordance with the Constitution Examples of justiciable issues: Whether a proposal was approved by the required number of votes in Congress (acting as a constituent assembly) Whether the approved proposals were properly submitted to the people for ratification Proposal of Revisions By Congress, upon a vote of of its members By a constitutional convention RATIFICATION Amendments and revisions proposed by Congress and/or by a ConCon: Valid when ratified by a MAJORITY of votes cast in a plebiscite. Plebiscite is held not earlier than 60 days nor later than 90 days from the approval of such amendments or revisions Amendments proposed by the people via initiative: Valid when ratified by a MAJORITY of votes cast in a plebiscite Plebiscite is held not earlier than 60 days nor later than 90 days after the certification by COMELEC of the petitions sufficiency. Requisites of a valid ratification: Held in a plebiscite conducted under the election law; Supervised by the COMELEC; and Where only franchised voters (registered) voters take part. Issues regarding ratification: The Constitution does not require that amendments and revisions be submitted to the people in a special election. Thus, they may be submitted for ratification simultaneously with a general election The determination of the conditions under which proposed amendments/revisions are submitted to the people falls within the legislative sphere. That Congress could have done better does not make the steps taken unconstitutional. All the proposed amendments/revisions made by the constituent assemblies must be submitted for

ratification in one single plebiscite. There cannot be a piece-meal ratification of amendments/revisions. Presidential proclamation is NOT required for effectivity of amendments/revisions, UNLESS the proposed amendments/ revisions so provide Doctrine of Proper Submission The plebiscite must be held not earlier than 60 days nor later than 90 days after the approval of the proposal by Congress or the Constitutional Convention, or after the certification by the Comelec of the sufficiency of the petition. (Sec.4, Art. XVII, 1987 Constitution) The period is meant to give the people sufficient and reasonable period to study and discuss the proposed amendments. Because the Constitution itself prescribes the time frame within which the plebiscite is to be held, there can no longer be a question on whether the time given to the people to determine the merits and demerits of the proposed amendment is adequate. ARTICLE XVIII - TRANSITORY PROVISIONS Effectivity of the 1987 Constitution The 1987 Constitution took effect immediately upon its ratification. According to the SC, this took place on February 2, 1987, which was the day the people cast their votes ratifying the Constitution. Military bases agreements 1. Renewals of military bases agreements must be through a strict treaty. 2. Ratification of the agreement in a plebiscite is necessary only when Congress so requires. 3. Section 25 of Article XVIII allows possible local deployment of only AMERICAN forces.

ADMINISTRATIVE LAW Branch of modern law under which the executive department of the government, acting in a quasilegislative or quasi-judicial capacity, interferes with the conduct of the individual for the purpose of promoting the well-being of the community ADMINISTRATIVE BODIES OR AGENCIES A body, other than the courts and the legislature, endowed with quasi-legislative and quasi-judicial powers for the purpose of enabling it to carry out laws entrusted to it for enforcement or execution How created: by constitutional provision; by legislative enactment; and by authority of law Powers of Administrative Agencies Quasi-legislative power / Power of subordinate legislation It is the authority delegated by the law-making body to the administrative body to adopt rules and regulations intended to carry out the provisions of a law and implement legislative policy. Kinds: 1. Legislative regulation supplementary or detailed legislation,e.g. Rules and Regulations Implementing the Labor code; contingent regulation Interpretative legislation, e.g. BIR Circulars Requisites for valid exercise: issued under authority of law;

within the scope and purview of the law; promulgated in accordance with the prescribed procedure: notice and hearing generally, not required; only when: the legislature itself requires it and mandates that the regulation shall be based on certain facts as determined at an appropriate investigation the regulation is a settlement of a controversy between specific parties; considered as an administrative adjudication the administrative rule is in the nature of subordinate legislation designed to implement a law by providing its details (CIR v CA, 261 SCRA 236) publication reasonable Requisites for Validity of Administrative Rules with Penal Sanctions: law itself must declare as punishable the violation of administrative rule or regulation; law should define or fix penalty therefore; and rule or regulation must be published Doctrine of Subordinate Legislation power of administrative agency to promulgate rules and regulations on matters of their own specialization Doctrine of Legislative Approval by Re-enactment The rules and regulations promulgated by the proper administrative agency implementing the law are deemed confirmed and approved by the Legislature when said law was re-enacted by later legislation or through codification. The Legislature is presumed to have full knowledge of the contents of the regulations then at the time of re-enactment. LEGISLATIVE POWER involves the discretion to determine what the law shall be cannot be delegated QUASI-LEGISLATIVE POWER involves the discretion to determine how the law shall be enforced can be delegated

Tests of Delegation (applies to the power to promulgate administrative regulations )

1. COMPLETENESS test. This means that the law must be complete in all its terms and conditions when it
leaves the legislature so that when it reaches the delegate; it will have nothing to do but to enforce it. 2. SUFFICIENT STANDARD test. The law must offer a sufficient standard to specify the limits of the delegates authority, announce the legislative policy and specify the conditions under which it is to be implemented.

Quasi-judicial power/Power of adjudication The power of administrative authorities to make determinations of facts in the performance of their official duties and to apply the law as they construe it to the facts so found. The exercise of this power is only incidental to the main function of administrative authorities, which is the enforcement of the law. Proceedings partake of nature of judicial proceedings. Administrative body granted authority to promulgate its own rules of procedure.

Includes the following powers: prescribe rules of procedure subpoena power contempt power Administrative Due Process: right to a hearing; tribunal must consider evidence presented; decision must have something to support itself; evidence must be substantial; decision must be based on evidence adduce3d at the hearing or at least contained in the records and disclosed to parties; board or judge must act on its or his own independent consideration of facts and law of the case, and not simply accept the view of the subordinate in arriving at a decision; and decision must be rendered in such a manner that parties to controversy can know various issues involved and the reason for the decision rendered Substantial Evidence such relevant evidence that a reasonable mind might accept as adequate to support a conclusion Administrative Determinations where Notice and Hearing Not Necessary: summary proceedings of distraint and levy upon property of delinquent taxpayer; grant of provisional authority for increase of rates, or to engage in particular line of business; cancellation of passport where no abuse of discretion is committed; summary abatement of nuisance per se which affects safety of persons or property; preventive suspension of officer or employee pending investigation; and grant or revocation of licenses or permits to operate certain businesses affecting public order or morals Administrative Appeal or Review where provided by law, appeal from administrative determination may be made to a higher or superior administrative officer or body by virtue of power of control of President, President himself or through Department Head may affirm, modify, alter, or reverse administrative decision of subordinate appellate administrative agency may conduct additional hearing in appealed case, if deemed necessary Res judicata effect of Administrative Decisions has the force and binding effect of a final judgment (note: applies only to judicial and quasi-judicial proceedings not to exercise of administrative functions Determinative Powers ENABLING powers Those that PERMIT the doing of an act which the law undertakes to regulate and would be unlawful without government approval. Ex. Issuance of licenses to engage in a particular business. DIRECTING powers Those that involve the corrective powers of public utility commissions, powers of assessment under the revenue laws, reparations under public utility laws, and awards under workmens compensation laws, and powers of abstract determination such as definition-valuation, classification and fact finding DISPENSING powers

Exemplified by the authority to exempt from or relax a general prohibition, or authority to relieve from an affirmative duty. Its difference from licensing power is that dispensing power sanctions a deviation from a standard. SUMMARY powers Those that apply compulsion or force against person or property to effectuate a legal purpose without a judicial warrant to authorize such action. Usually without notice and hearing. Ex. Abatement of nuisance, summary destraint, levy of property of delinquent tax payers EQUITABLE powers Those that pertain to the power to determine the law upon a particular state of facts. It refers to the right to, and must, consider and make proper application of the rules of equity. Ex. Power to appoint a receiver, power to issue injunctions Kinds of Administrative Regulations DISTINCTIO NS 1. Capacity that administrative agency is acting in 2. What administrative agency is doing 3. Force and effect LEGISLATI VE Legislative INTERPRETA TIVE Judicial

It supplement s the statute by filling in the details Legislative regulations have the force and effect of law immediatel y upon going into effect. Such is accorded by the courts or by express provision of statute.

It says what the statute means

Merely persuasive/ Received by the courts with much respect but not accorded with finality

Requisites of a Valid Administrative Regulation 1. Its promulgation must be authorized by the legislature. 2. It must be within the scope of the authority given by the legislature. 3. It must be promulgated in accordance with the prescribed procedure. 4. It must be reasonable Need for Previous Notice and Hearing General Rule: Administrative rules of GENERAL application do NOT require previous notice and hearing. Exception: When the legislature itself requires it and mandates that the regulation shall be based on certain

facts as determined at an appropriate investigation. If the regulation is in effect a settlement of a controversy between specific parties, it is considered an administrative adjudication, requiring notice and hearing. Prescribing of Rates It can be either: LEGISLATIVE If the rules/rates are meant to apply to all enterprises of a given kind throughout the country. No prior notice and hearing is required. QUASI-JUDICIAL If the rules and rates imposed apply exclusively to a particular party, based upon a finding of fact. Prior notice and hearing is required. Requirement of Publication Administrative Regulations that MUST be published: Administrative regulations of GENERAL application. Administrative regulations which are PENAL in nature. Administrative regulations that do NOT NEED to be PUBLISHED: 1. Interpretative regulations 2. Internal rules and regulations governing the personnel of the administrative agency. 3. Letters of instruction issued by administrative superiors concerning guidelines to be followed by their subordinates. (Tanada v. Tuvera) Special Requisites of a Valid Administrative Regulation with a PENAL sanction 1. The law itself must make violation of the administrative regulation punishable. 2. The law itself must impose and specify the penalty for the violation of the regulation. 3. The regulation must be published. Requisites for Proper Exercise of Quasi-Judicial Power Jurisdiction and Due process Administrative Due Process : Requirements 1. Right to Notice, be it actual or constructive 2. Reasonable opportunity to appear and defend his rights and to introduce witnesses 3. Impartial tribunal with competent jurisdiction 4. Finding or decision supported by substantial evidence Exceptions to the Notice and Hearing Requirement 1. Urgency of immediate action 2. Tentativeness of the administrative action 3. Right was previously offered but not claimed 4. Summary abatement of a nuisance per se 5. Preventive suspension of a public servant facing administrative charges 6. Padlocking of filthy restaurants/theaters showing obscene movies 7. Cancellation of a passport of a person sought for criminal prosecution 8. Summary distraint and levy of properties of a delinquent taxpayer 9. Replacement of a temporary or acting appointee Questions Reviewable on Judicial Review: 1. Questions of FACT The general rule is that courts will not disturb the findings of administrative agencies acting within the parameters of their own competence so long as such findings are supported by substantial evidence. By reason of their special knowledge, expertise, and experience, the courts ordinarily accord respect if not finality to factual findings of administrative tribunals.

2. Question of LAW Administrative decision may be appealed to the courts independently of legislative permission. It may be appealed even against legislative prohibition because the judiciary cannot be deprived of its inherent power to review all decisions on questions of law. Doctrine of Finality Courts are reluctant to interfere with action of an administrative agency prior to its completion or finality, the reason being that absent a final order or decision, power has not been fully and finally exercised, and there can usually be no irreparable harm. EXCEPTIONS: Interlocutory order affecting the merits of a controversy; Preserve status quo pending further action by the administrative agency; Essential to the protection of the rights asserted from the injury threatened; Officer assumes to act in violation of the Constitution and other laws; Order not reviewable in any other way; Order made in excess of power Administrative power It is concerned with the work of applying policies and enforcing orders as determined by proper governmental organs. It enables the President to fix a uniform standard of administrative efficiency and check the official conduct of his agents. To this end, he can issue administrative orders, rules and regulations. (Ople v. Torres, G.R. No. 127685, July 23, 1998 [Puno]) Administrative order An ordinance issued by the President which relates to specific aspects in the administrative operation of government. It must be in harmony with the law and should be for the sole purpose of implementing the law and carrying out the legislative policy. (Ople v. Torres, G.R. No. 127685, July 23, 1998 [Puno]) EXHAUSTION OF ADMINISTRATIVE REMEDIES Whenever there is an available administrative remedy provided by law, no judicial recourse can be made until all such remedies have been availed of and exhausted Doctrine of Prior Resort or Doctrine of Primary Administrative Jurisdiction) where there is competence or jurisdiction vested upon administrative body to act upon a matter, no resort to courts may be made before such administrative body shall have acted upon the matter Doctrine of Finality of Administrative Action No resort to courts will be allowed unless administrative action has been completed and there is nothing left to be done in administrative structure Judicial Relief from Threatened Administrative Action Courts will not render a decree in advance of administrative action and thereby render such action nugatory. It is not for the court to stop an administrative officer from performing his statutory duty for fear that he will perform it wrongly Effect of Failure to Exhaust Administrative Remedies General Rule: jurisdiction of the court is not affected but the complaint is vulnerable to dismissal for failure to state a cause of action Exception: doctrine of qualified political agency (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); except where law expressly provides exhaustion administrative remedy is fruitless; where there is estoppel on the part of the administrative agency; issue involved is purely legal

administrative action is patently illegal, amounting to lack or excess of jurisdiction; where there is unreasonable delay or official inaction where there is irreparable injury or threat thereof, unless judicial recourse is immediately made in land case, subject matter is private where law does not make exhaustion a condition precedent to judicial recourse where observance of the doctrine will result in nullification of claim where there are special reasons or circumstances demanding immediate court action; and when due process of law is clearly violated JUDICIAL REVIEW OF ADMINISTRATIVE DECISIONS When made: to determine constitutionality or validity of any treaty, law, ordinance, executive order or regulation to determine jurisdiction of any administrative board, commission or officer to determine any other questions of law; and to determine questions of facts when necessary to determine either: constitutional or jurisdictional issue commission of abuse of authority; and when administrative fact-finding body is unduly restricted by an error of law General rule: Findings of facts of administrative agencies accorded great weight by the courts Exceptions: factual findings not supported by evidence; findings are vitiated by fraud, imposition or collusion; procedure which led to factual findings is irregular palpable errors are committed; and grave abuse of discretion, arbitrariness or capriciousness is manifest Branded Doctrine of Assimilation of Facts Where what purports to be a finding upon a question of fact is so involved with and dependent upon question of law as to be in substance and effect a decision on the latter, the Court will, in order to decide the legal question, examine the entire record including the evidence if necessary. Methods of obtaining Judicial Review: statutory available pursuant to specific statutory provisions Non-Statutory Where there is no express statute granting review, relief is obtained by means of the common law remedies, or by the prerogative writs of certiorari, mandamus, habeas corpus, quo warranto or prohibition if statutory methods for judicial review are available, they are ordinarily exclusive, and the use of nonstatutory methods will not likely be permitted Direct Attempt to question in subsequent proceedings the administrative action for lack of jurisdiction, grave abuse of discretion, etc. collateral relief from administrative action sought in a proceeding the primary purpose of which is some relief other than the setting aside of the judgment, although an attack on the judgment may be incidentally involved, e.g., a damage suit against the administrative officials When court has jurisdiction Court of Appeals has appellate jurisdiction over judgments or final orders of the Court of Tax Appeals and from awards, judgments, final orders or resolutions of or authorized by any quasi-judicial agency in the exercise of its quasi-judicial functions.

Where the law provides for an appeal from the decisions of administrative bodies to the Supreme Court or to the Court of Appeals, it means that such bodies are co-equal with the Regional Trial Courts in terms of rank and stature, and logically, beyond the control of the latter.

LAW ON PUBLIC OFFICERS PUBLIC OFFICE right, authority and duty created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is vested with some sovereign functions of government to be exercised by him for the benefit of the public Elements of Public Office: created by law or ordinance authorized by law; possesses sovereign functions of the government to be exercised for public interests; functions defined expressly or impliedly by law functions exercised by an officer directly under the control of law, not under that of a superior officer unless they are functions conferred by law upon inferior officers, who by law, are under the control of a superior, (duties performed independently) and with permanency or continuity, not temporary or occasional Characteristics Public office is a public trust Public office is not property, and is outside the commerce of man. It cannot be subject of a contract. PUBLIC OFFICERS Individuals vested with public office Eligibility and qualification (Two Senses) may refer to endowments, qualities or attributes which make an individual eligible for public office; may refer to the act of entering into the performance of functions of public office Authority to prescribe qualification: when prescribed by the Constitution, ordinarily exclusive, the legislature may not increase or reduce qualifications except when the Constitution itself provides otherwise as when only minimum or no qualifications are prescribed when office is created by statute, Congress has the plenary power to prescribe qualification but such must be: germane to the purpose of the office; and not too specific so as to refer to only one individual DE FACTO OFFICERS one who has reputation of being an officer that he assumes to be and yet is not an officer in point of law Requisites: valid existing office actual physical possession of said office color of title to office, either by: reputation or acquiescence known or valid appointment or election but officer failed to conform with legal requirements known appointment or election but void because of ineligibility of officer or want of authority of appointing or electing authority or irregularity in appointment or election not known to public; and known appointment or election pursuant to unconstitutional law before declaration of unconstitutionality DE JURE OFFICER DE FACTO OFFICER

rests on the right has lawful title to the office

on reputation has possession and performs the duties under color of right without being technically qualified in all points of law to act may be ousted in a direct proceeding against him

cannot be removed in a direct proceeding

DE FACTO OFFICER officer under any of the 4 circumstances mentioned

INTRUDER one who takes possession of an office and undertakes to act officially without any authority, either actual or apparent has neither lawful title nor color of right or title to office acts are absolutely void and can be impeached any time unless and until he continues to act for so long a time as to afford a presumption of his to right to act not en titled to compensation

has color of right or title to office acts are valid as to the public until such time as adjudged insufficient

entitled to compensation for services rendered

De facto officer is subject to the same liabilities imposed on the de jure officer in the discharge of official duties, in addition to whatever special damages that may be due from him because of his unlawful assumption of office Legal Effects of Acts Valid insofar as they affect the public Entitlement to Salaries General Rule: rightful incumbent may recover from the de facto officer salary received by the latter during the time of wrongful tenure even though the latter is in good faith and under color of title

Exception: when there is no de jure officer, de facto officer is entitled to salaries for the period when he actually discharged functions Challenge of a De Facto Officer: must be in a direct proceeding where the title will be the principal issue COMMENCEMENT OF OFFICIAL RELATIONS By appointment By election Appointment selection by authority vested with power, of individuals who is to perform functions of a given office Essentially a discretionary power and must be performed by the officer in which it is vested according to his best lights, the only condition being that the appointee should possess the minimum qualification requirements prescribed by law for the position Commission written evidence of appointment Designation imposition of additional duties, usually by law, on a person already in public office Classification of Appointments: permanent extended to person possessing the requisite qualification for the position and thus enjoys security of tenure temporary acting appointment given to a non-civil service eligible; is without a definite tenure and is dependent upon the pleasure of the appointing power regular made by President while Congress is in session and becomes effective after the nomination is confirmed ad-interim recess made while Congress is not in session, before confirmation, is immediately effective, and ceases to be valid if disapproved or bypassed by CA upon the next adjournment of Congress midnight made by the President before his term expires, whether or not this is confirmed by the Commission on Appointments Regular appointment Made during the legislative session Made only after the nomination is confirmed by the CA Once confirmed by the CA, continues until the end of the term of the appointee Ad interim appointment Made during the recess Made before such confirmation

Shall cease to be valid if disapproved by the CA or upon the next adjournment

Nepotism all appointments in the national, provincial, city and municipal governments or in any branch or instrumentality thereof, including GOCC, made in favor of a relative of the appointing or

recommending authority or chief of the bureau of or office or of the Persons exercising immediate supervision over him. A relative is one within the 3rd degree either of consanguinity or affinity Vacancy when an office is empty and without a legally qualified incumbent appointed or elected to it with a lawful right to exercise its powers and performs its duties Authority of Public Officers Consists of those powers which are Expressly conferred upon him by the act appointing him Expressly annexed to the office by law Attached to the office by common law as incidents to it Doctrine of necessary implication All powers necessary for the effective exercise of the express powers are deemed impliedly granted POWERS OF A PUBLIC OFFICER Ministerial discharge is imperative and requires neither judgment nor discretion, mandamus will lie; and Discretionary imposed by law wherein officer has the right to decide how and when the duty shall be performed, mandamus will not lie Prohibitions partisan political activity additional or double compensation prohibition against loans (Sec 16, Art XI Constitution) laborers shall not be assigned to perform clerical duties no detail or reassignment within three months before any election without the approval of the COMELEC nepotism LIABILITY OF A PUBLIC OFFICER GENERAL RULE : not liable for injuries sustained by another as a consequence of official acts done within the scope of his authority, except as otherwise provided by law Exceptions: statutory liability under the Civil Code (Arts 27, 32 and 34) when there is a clear showing of bad faith, malice or negligence liability on contracts liability on tort Threefold Liability Rule wrongful acts or omissions of public officers may give rise to civil, criminal and administrative liability Liability of Ministerial Officers: Nonfeasance neglect or refusal to perform an act which is the officers legal obligation to perform Misfeasance failure to use that degree of care, skill and diligence required in the performance of official duty Malfeasance doing, through ignorance, inattention or malice, of an act which he had no legal right to perform Doctrine of Command Responsibility

A superior officer is liable for acts of a subordinate when: he negligently or willfully employs or retains unfit or incompetent subordinates he negligently or willfully fails to require subordinate to conform to prescribed regulations he negligently or carelessly oversees the business of the office as to furnish subordinate an opportunity for default he directed or authorized or cooperated in the wrong law expressly makes him liable Preventive Suspension Imposed during the pendency of an administrative investigation not a penalty in itself precautionary measure so that the employee who is charged may be separated from the scene of his alleged misfeasance while the same is being investigated need not be preceded by prior notice and hearing since it is not a penalty but only a preliminary step in an administrative investigation Pending Investigation not a penalty but only a means of enabling the disciplinary authority to conduct an unhampered investigation no compensation due for the period of Pending Appeal punitive in character

suspension even if found innocent of the charges Rules on Preventive Suspension

if exonerated, he should be reinstated with full pay for the period of suspension

Appointive Officials Not a Presidential Appointee By whom the proper disciplining authority may preventively suspend Against whom any subordinate officer or employee under such authority When pending an investigation Grounds if the charge against such officer or employee involves: Dishonesty Oppression or grave misconduct Neglect in the performance of duty If there are reasons to believe that respondent is guilty of the charges which would warrant his removal from the service Duration the administrative investigation must be terminated within 90 days; otherwise, the respondent shall be automatically reinstated unless the delay in the disposition of the case is due to the fault, negligence or petition of the respondent, in which case the period of delay shall not be counted in computing the period of suspension A Presidential Appointee

Can only be investigated and removed from office after due notice and hearing by the President of the Philippines under the principle that the power to remove is inherent in the power to appoint as can be implied from Sec. 5, RA 2260 The Presidential Commission Against Graft and Corruption shall have the power to investigate administrative complaints against presidential appointees in the Executive department of the government, including those in the GOCCs, charged with graft and corruption involving one or a combination of the following criteria: Presidential appointees with the rank equivalent to or higher than an Assistant Regional Director; Amount involved is at least P10M; Those which threaten grievous harm or injury to the national interest; and Those which may be assigned to it by the President Elective Officials By whom against whom President elective official of a province, a highly urbanized or an independent component city Governor elective official of a component city or municipality Mayor elective official of a barangay When at any time after the issues are joined Grounds: Reasonable ground to believe that the respondent has committed the act or acts complained of; Evidence of culpability is strong; Gravity of the offense so warrants; Continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence Duration Single administrative case not to extend beyond 60 days; Several administrative cases not more than 90 days within a single year for the same ground or grounds existing and known at the time of the first suspension RA 3019 makes it mandatory, for the Sandiganbayan to suspend, for a maximum period of 90 days unless the case is decided within a shorter period, any public officer against whom a valid information is filed charging violation of: R.A. 3019 Book II, Title 7, Revised Penal Code; or Offense involving fraud upon government or public funds or property RIGHTS OF PUBLIC OFFICERS Right to office just and legal claim to exercise power and responsibilities of the public office. Term period during which officer may claim to hold office as a right Tenure period during which officer actually holds office Right to salary Basis: legal title to the office and the fact that the law attaches compensation to the office Back salaries are payable to an officer illegally dismissed or otherwise unjustly deprived of his office, the right to recover accruing from the date of deprivation. The claim for back salaries must be coupled with a claim for reinstatement and subject to the prescriptive period of one (1) year

Forms of Compensation: Salary personal compensation to be paid to public officer for his services and it is generally a fixed

annual or periodical payment depending on the time and not on the amount of the service he may render; Per diem allowance for days actually spent in the performance of official duties; Honorarium something given not as a matter of obligation, but in appreciation for services rendered; Fee payment for services rendered or on commission on moneys officially passing through their hands; and Emoluments profits arising from the office, received as compensation for services or which is annexed to the office as salaries, fees or perquisites Right to Preference in Promotion Promotion movement from one position to another with increase in duties and responsibilities as authorized by law and usually accompanied by an increase in pay Next-in-Rank Rule the person next in rank shall be given preference in promotion when the position immediately above his is vacated. But the appointing authority still exercises his discretion and is not bound by this rule A qualified next-in-rank refers to an employee appointed on a permanent basis to a position previously determined to be next-in-rank to the vacancy proposed to be filled and who meets the requisites for appointment thereto as previously determined by the appointing authority and approved by the CSC Appointing officer is only required to give special reasons for not appointing the officer next-in-rank if he fills the vacancy by promotion in disregard of the next-in-rank rule. Automatic Reversion Rule all appointments involved in a chain of promotions must be submitted simultaneously for approval by the Commission, the disapproval of the appointment of a person proposed to a higher position invalidates the promotion of those in the lower positions and automatically restores them to their former positions Right to vacation leave and sick leave with pay; Right to maternity leave Right to pension and gratuity Pension regular allowance paid to an individual or group of individuals by the government in consideration of the services rendered or in recognition of merits Gratuity a donation and an act of pure liberality on the part of the State Right to retirement pay; Right to reimbursement for expenses incurred in performance of duty; Right to be indemnified against any liability which they may incur in bona fide discharge of duties; Right to longevity pay; and Right to self-organization Civil servants are now given the right to self-organize but they may not stage strikes TERMINATION OF OFFICIAL RELATIONSHIP Expiration of term or tenure When public officer holds office at the pleasure of appointing power, his replacement amounts to expiration of his term, not removal Principle of Hold-Over if no express or implied Constitutional or statutory provision to the contrary, public officer is entitled to hold office until successor has been chosen and qualified Purpose: to prevent hiatus in public office

Reaching the age limit Compulsory retirement age: Judiciary 70 years of age Other government officers and employees 65 years of age Resignation The act of giving up or the act of a public officer by which he declines his office and renounces the further right to use it Elements: Must be voluntary on the part of the public officer Must be accepted by competent authority, expressly or impliedly Effective as of the date specified in the tender or if no such date is specified, it shall be effective when the public officer Accepting Authority for Resignation: To competent authority provided by law; If law is silent and public officer is elected, tender to officer authorized by law to call an election to fill the vacancy: President and Vice-President Congress; Members of Congress respective Chambers; Governors, Vice Governors, Mayors and Vice Mayors of HUCs and independent component cities President Municipal Mayors and Vice Mayors/City Mayors and Vice Mayors of component cities Provincial Governor Sanggunian Members Sanggunian concerned; and Elective Barangay Officials Municipal or City Mayors Recall Termination of official relationship of an elective official for loss of confidence prior to the expiration of his term through the will of the electorate Limitations on Recall: Any elective local government official may be subject of a recall election only once during his term of office for loss of confidence; and No recall shall take place within one year from the date of the officials assumption to office or one year immediately preceding a regular local election Initiation of the Recall Process By virtue of RA 9244, Sections 70 and 71 of the Local Government Code were amended, and the Preparatory Recall Assembly has been eliminated as a mode of instituting recall of elective local government officials Thus, the recall of any elective provincial, city, municipal or barangay official can only be commenced by a petition of a registered voter in the LGU concerned and supported by the registered voters in the LGU concerned during the election in which the local official sought to be recalled was elected subject to the percentage requirements provided by the law Election on Recall Upon the filing of a valid petition for recall with the appropriate local office of the COMELEC, the COMELEC or its duly authorized representative shall set the date of the election or recall, which shall not be later than 30 days upon the completion of the procedure, in the case of barangay, city or municipal officials, and 45 days in the case of provincial officials. The officials sought to be recalled shall automatically be considered as duly registered candidate or candidates to the pertinent positions and, like other candidates, shall be entitled to be voted upon. Effectivity of Recall

Only upon the election and proclamation of a successor in the person of the candidate receiving the highest number of votes cast during the election on recall. Should the official sought to be recalled receive the highest number of votes, confidence in him is thereby affirmed, and he shall continue in office Limitations on Recall Any elective local official may be the subject of a recall election only once during his terms of office for loss of confidence no recall shall take place within one year from the date of the officials assumption to office or one year immediately preceding a regular local election Removal Career service officers and employees who enjoy security of tenure may be removed only for any of the causes enumerated in the law, and in accordance with the procedure prescribed therein Abandonment The voluntary relinquishment of an office by the holder, with the intention of terminating his possession and control thereof Acceptance of an incompatible office Test of Incompatibility By the nature and relation of the two offices to each other, they ought not to be held by one person from the contrariety and antagonism which would result in the attempt by one person to faithfully and impartially discharge the duties of one, toward the incumbent of the other Exception: Where the public officer is authorized by law to accept the other office Abolition of office Except when restrained by the Constitution, Congress has the right to abolish an office, even during the term for which an existing incumbent may have been elected Requisites: Made in good faith With the clear intent to do away with to the office Not for personal or political reasons Cannot be implemented in a manner contrary to law Prescription of the right to office The Rules of Court provide that a petition for reinstatement (after illegal ouster or dismissal), or the recovery of the public office, must be instituted within one (1) year from the date the petitioner is unlawfully ousted from his office Reason: Title to public office should not be subjected to continued uncertainty; and the peoples interest requires that such right should be determined as speedily as possible. (Tumulak v. Egay, 82 Phils 828) Impeachment Death Failure to assume elective office within six months from proclamation Conviction of a crime When the penalty imposed, upon conviction, caries with it the accessory penalty of disqualification, conviction by final judgment automatically terminates official relationship While a plenary pardon extinguishes the accessory penalty of disqualification, it will not restore the public office to the officer convicted

Filing of a certificate of candidacy

ELECTION LAW GENERAL PRINCIPLES Sources of Philippine Election Law 1987 Constitution BP 881 (Omnibus Election Code) RA 6646 (Electoral Reforms Law of 1987) RA 6735 (Law Providing for Initiative and Referendum) RA 7166 (1991 Synchronized Elections Law) RA 7941 (Election of Party-List Representatives) RA 8189 (Continuing Registration) RA 8436 (Automated Election System) RA 8524 RA 9006 (Fair Election Act of 2001) Theory of Popular Sovereignty The Philippines is a democratic and republican state. Sovereignty resides in the people and all government authority emanates from them. (Art. II Sec 1, 1987 Constitution) A democratic and republican government derives all its powers, directly or indirectly, from the people at large. Its essence is indirect rule. Actual sovereignty is exercised by the people by means of suffrage. Suffrage Right and obligation of qualified citizens to vote: In the election of certain national and local officials, and In the decision of public questions submitted to the people A political right which enables every citizen to participate in the process of government to assure that it derives its powers from the consent of the governed. Not a natural right but a privilege which may be given or withheld by the lawmaking power subject to constitutional limitations. SCOPE OF SUFFRAGE Election Means by which the people choose their officials for definite periods and to whom they entrust, for the time being as their representatives, the exercise of powers of government. Involves the choice of candidates to public office by popular vote

Components Choice or selection of candidates to public office by popular vote Conduct of the polls Listing of votes Holding of Electoral campaign Act of casting and receiving the ballots from the voters Counting the ballots Making the election returns Proclaiming the winning candidates Regular election refers to an election participated in by those who possess the right of suffrage and not disqualified by law and who are registered voters Special election when there is failure of election on the scheduled date of regular election in a particular place or which is conducted to fill up certain vacancies, as provided by law Plebiscite Submission of constitutional amendments or important legislative measures to the people for ratification Referendum Power of the electorate to approve or reject legislation through an election called for the purpose 2 classes: Referendum on statutes refers to a petition to approve or reject an act or law, or part thereof, passed by Congress; and Referendum on local law refers to a petition to approve or reject a law, resolution or ordinance enacted by regional assemblies and local legislative bodies Initiative Power of the people to propose amendments to the Constitution or to propose and enact legislation through an election called for the purpose. 3 systems of initiative: Initiative on the Constitution - refers to a petition proposing amendments to the Constitution; Initiative on statutes - refers to a petition proposing to enact a national legislation; Initiative on local legislation refers to a petition proposing to enact a regional, provincial, city, municipal or barangay law, resolution or ordinance Recall termination of official relationship of a local elective official for loss of confidence prior to the expiration of his term through the will of the electorate Who can exercise: all citizens of the Philippines, not otherwise disqualified by law, at least 18 years of age, and have resided in the Philippines for at least 1 year, and in the place wherein they propose to cast their vote for at least 6 months immediately preceding the election. Substantive requirements for the exercise of the right of suffrage: citizenship age residency; and absence of disqualifications

Disqualifications: Persons sentenced by final judgment to suffer imprisonment for not less than one (1) year Right to vote automatically re-acquired upon the expiration of 5 years after the service of sentence Persons adjudged by final judgment of having committed any crime involving disloyalty to the duly constituted government or any crime against national security Right to vote is automatically re-acquired upon the expiration of 5 years after the service of sentence Insane or incompetent persons as declared by competent authority ELECTIONS IN GENERAL Kinds of elections General Election one provided for by law for the election to offices throughout the State or a certain subdivision thereof, after the expiration of the full term of former officers. Special Election one provided for by under special circumstances. an election held to fill a vacancy in an office before the expiration of the

full tem for which the incumbent was elected, or an election at which some issue or proposition is submitted to the vote of the qualified electors Date of election under the Law To synchronize elections, there is a simultaneous conduct of elections for national and local officials once every 3 years. Elections shall be held on the 2nd Monday of May President / Vice-President Senators, Elective members of the House of Representatives, elective Provincial, City and Municipal Officials Barangay Officials elected on the same day every 6 years elected on the same day every 3 years, except with respect to the Senators, only 12 of whom shall be elected every 3 years elected on the same day, and every 5 years thereafter

Pre-Election Requirements Precinct Unit of territory for the purpose of voting Polling Place Building or place where the Board of Election Inspectors conducts its proceedings and where the voters cast their voted Ballots General Rule: no ballots other than the official ballots shall be used or counted. Exception: emergency ballots may be used if: Failure to receive the official ballots on time There are no sufficient ballots for all registered voters The ballots are destroyed at such time as shall render it impossible to provide other official ballots Official ballots and election returns shall be printed by the Government Printing Office and/or the Central Bank printing facilities exclusively Emergency ballots are provided by the city or municipal treasurer which shall be as similar to the official ones as circumstances will permit Registration of Voters Registration Act of accomplishing and filing of a sworn application for registration by a qualified voter before the election officer of the city or municipality wherein he resides and including the same in the book of registered voters upon approval by the Election Registration Board Election Registration Board Composition Chairman: Election officer. In case disqualified, the COMELEC shall designate an acting Election Officer Members Public school official most senior in rank; and Local civil registrar, or in his absence, the city or municipal treasurer. If neither are available, any other appointive civil service official from the same locality as designated by the COMELEC. Disqualification No member of the Board shall be related to each other or to any incumbent city or municipal elective official within the 4th civil degree of consanguinity or affinity. If in succeeding elections, any of the newly elected city or municipal officials is related to a member of the Board within the 4 th civil degree of consanguinity or affinity, such member is automatically disqualified to preserve the integrity of the Election Registration Board NOTE: It is an election offense to either: Accept an appointment, to assume office and to actually serve as a member of the board although ineligible thereto, or Appoint such ineligible person knowing him to be ineligible When registration conducted Not less than 120 days before a regular election and 90 days before a special election System of continuing registration

Under Sec 8 of RA 8189, the COMELEC has the power to conduct continuing registration. Such registration shall be conducted daily in the office of the Election Officer during regular office hours, except during the period starting 120 days before a regular election and 90 days before a special election. Challenge of the right to register Any person applying for registration may be challenged before the Election Registration Board: By any voter, By any candidate, or By any representative of a registered political party Such challenge must be in writing, under oath and must state the grounds therefore List of voters Refers to an enumeration of names of registered voters in a precinct duly certified by the Election Registration Board for use in the election Must be posted in each precinct 15 days before the date of the regular or special election or referendum or plebiscite Any candidate or authorized representative of an accredited political party upon formal request to an election registrar shall be entitled to a certified copy of the most recent list of voters upon payment of a reasonable fee Petition for inclusion of voters in the list The following may petition to be included in the voters list Any person whose application by registration has been disapproved by the Board of Election Inspectors or Any person whose name has been stricken out from the list Petitioner may apply at any time except 105 days prior to a regular election or 75 days prior to a special election Petition for exclusion of voters from the list The following may petition for the exclusion of a voter from the permanent list of voters: Any registered voter; Any representative of a political party; The Election Officer Petition may be filed at any time except 100 days before a regular election or 65 days before a special election It shall be decided within 10 days from filing Jurisdiction in Inclusion/Exclusion cases The municipal and metropolitan trial courts shall have original and exclusive jurisdiction over all matters of inclusion and exclusion of voters from the list in their respective municipalities or cities. Petition filed at any time except 105 days before regular election or 75 days before special election Decisions may be appealed to the RTC within 5 days from receipt of notice of decision. RTC will decide the appeal within 10 days. Decision is final and executory. Grounds when the List of Voters will be altered: Deactivation/ Reactivation Exclusion/ Inclusion Cancellation of Registration in case of Death New voters Annulment of Book of Voters Transfer of Residence Annulment of Book of Voters

Book of voters Compilation of all registration records in a precinct Who may file petition for annulment any voter; any election officer; any duly registered political party Grounds The book of voters was not prepared in accordance with the provisions of R.A. 8189; The book of voters was prepared through: Fraud; Bribery; Forgery; Impersonation; Intimidation; Force; or Any similar irregularity The book of voters contains data that are statistically improbable. Cannot be done within 90 days before election

Deactivation and Reactivation of Registration Deactivation removing the registration records of persons from the precinct book of voters and place the same, properly marked and dated in indelible ink, in the inactive file after entering the cause of deactivation Grounds: Failure to vote in the 2 successive preceding regular elections, as shown by the voting records (Note: SK elections are NOT considered regular elections for this purpose) Court order for exclusion of registration; and Loss of Filipino citizenship Reactivation Sworn application for reactivation of registration in the form of an affidavit stating that the grounds for the deactivation no longer exist Filed by any voter who has been deactivated Filed with the Election Officer, who shall submit such application to the Election Registration Board for appropriate action Not later than 120 days before a regular election and 90 days before a special election Registration of Political Parties Political Party An organized group of persons pursuing the same ideology, political ideas or platforms of government and includes its branches and divisions. An organized group of citizens advocating an ideology or platform, principles and policies for the general conduct of government and which, as the most immediate means of securing their adoption, regularly nominates and supports certain of its leaders and members as candidates for public office Types of Political Parties 1) Registered Parties: a. Dominant Majority Party usually the administration party; entitled to a copy of election return b. Dominant Minority Party entitled to a copy of election return

c. Majority Political Party d. Top 3 Political Parties entitled to appoint principal watcher and a copy of the certificate of canvass e. Bottom 3 political parties entitled to appoint principal watcher 2) Non-registered parties Criteria to Determine the Type of Political Party a. Established Record of the said parties, showing in past elections b. Number of Incumbent Elective Officials c. Identifiable political organizations and strengths d. Ability to fill a complete slate of candidates e. Other analogous circumstances Grounds for Challenging the Voter a. Illegal voters ( Not Registered / Using the name of another / disqualified ) b. Based on certain illegal acts (Vote buying) Acquisition of Juridical Personality Acquired upon registration with the COMELEC. Rights and privileges granted to be voted upon as a party, provided that is registered under the party-list system to have a watcher in every Election Registration Board to have a watcher and/or representative in the procurement and watermarking of papers to be used in the printing of election returns and official ballots and in the printing, numbering, storage and distribution thereof to have watchers who shall verify the contents of the boxes containing the shipment of official ballots, election returns and sample official ballots received by the provincial, city and municipal treasurers this privilege is only available to the ruling party and the dominant opposition party to have one watcher in every polling place and canvassing center to be present and to have counsel during the canvass of the election returns to receive the 4th copy (if the dominant majority party) or the 5th copy (if the dominant minority party) of the election returns Who may not be registered religious denominations and sects those which seek to achieve their goals through violence or unlawful means those which refuse to uphold and adhere to the Constitution those supported by foreign governments Forfeiture of Status as a Registered Political Party The status shall be deemed forfeited if the political party, singly or in coalition with others, fails to obtain at least 10% of the votes cast in the constituency in which it nominated and supported a candidate/s in the election next following its registration. There shall be notice and hearing. Cancellation of registration Grounds: Accepting financial contributions from foreign governments or their agencies The party is a religious sect or denomination, organization or association organized for religious purposes The party advocates violence or unlawful means to seek its goal The party is a foreign party or organization The party is receiving support from any foreign government, foreign political party, foundation, organization, whether directly or through any of its officers or members or indirectly through third parties for partisan election purposes The party violates or fails to comply with laws, rules or regulations relating to elections The party declares untruthful statements in its petition for registration The party has ceased to exist for at least 1 year The party fails to participate in the last 2 preceding elections

If registered under the party-list system the party fails to obtain at least 2% of the votes in the 2 preceding elections for the constituency in which it has registered. Nomination and Selection of Official Candidates No political convention or meeting for the nomination or election of the official candidates of any political party or organization or political groups or coalition thereof shall be held earlier than the following periods: Pres., VP, Senators: 165 days before the date of the election Members of the House of Representatives: 75 days before the day of election Elective Provincial, City or Municipal Officers Certificate of Candidacy Candidate Any person aspiring for or seeking an elective public office, who has filed a certificate of candidacy by himself or through an accredited political party, aggroupment, or coalition of parties. Qualifications Qualifications prescribed by law are continuing requirements and must be possessed for the duration of the officers active tenure Once any of the required qualifications are lost, his title to the office may be seasonably challenged. Rules on filing of certificates of candidacy 1. No person shall be elected into public office unless he files his certificate of candidacy within the prescribed period 2. No person shall be eligible for more than one office. If he/she files for more than one position, he shall not be eligible for all unless he cancels all and retains one 3. The certificate of candidacy shall be filed by the candidate personally or by his duly authorized representative. 4. Upon filing, an individual becomes a candidate, he is already covered by rules, restrictions and processes involving candidates. Grounds for disqualification Election offenses under Sec 68 of the Omnibus Election Code (OEC) Not possessing qualifications and possessing disqualifications under the Local Government Code Sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one year or more of imprisonment within two years after serving sentence Removed from office as a result of an administrative case Convicted by final judgment for violating the oath of allegiance to the Republic Dual citizenship ( more specifically, dual allegiance) Fugitives from justice in criminal or non-political cases here or abroad Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right Insane or feeble-minded Nuisance candidate Violation of sec 73 of OEC with regard to certificate of candidacy Violation of sec 78 which is material misrepresentation of requirements under sec. 74

OFFICE President, VicePresident,

PLACE OF FILING COMELEC main office

Senator Congressman Provincial officer City/Municipal Officer

Provincial Election supervisor Provincial Election supervisor City or Municipal Election Registrar

Disqualifications (from continuing as a candidate or from holding the office if already elected): Any candidate, who in an action or protest in which he is a party is declared by final decision of a competent court guilty of, or is found by the Commission of having: A. Given money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions. B. Committed acts of terrorism to enhance his candidacy C. Spent in his election campaign an amount in excess of that allowed by the Omnibus Election Code ) D. Solicited, received or made any contribution prohibited under this Code E. Violated any of the following sections: Section 80, 83, 85,86,261 F. Permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office UNLESS he/she has waived his/her status as a permanent resident/immigrant of a foreign country in accordance with the residence requirement provided for under election laws. Effect of a Disqualification case (under RA 6646) A. Any candidate who has been declared by final judgment to be disqualified shall NOT be voted for. The votes cast in his favor shall not be counted. B. If the candidate is not disqualified by final judgment before the election and receives the highest number of votes in the election, the court or COMELEC will continue with the trial and hearing of the action, inquiry or protest. Upon motion of the complainant or intervenor, the court or COMELEC may order the suspension of the proclamation of the candidate whenever the evidence of his guilt is strong. Nuisance candidates Candidates who have no bona fide intention to run for the office for which the certificate of candidacy has been filed and would thus prevent a faithful determination of the true will of the people. COMELEC may refuse to give due course to or cancel a certificate of candidacy of a nuisance candidate. This can be done motu proprio or upon verified petition of an interested party. There should be a showing that: A. Certificate of candidacy has been filed to put the election process in mockery/disrepute or B. To cause confusion among the voters by the similarity of the names of the registered candidates C. Other circumstances which clearly demonstrate that the candidate has no bona fide intention to run for the office. Petition to deny due course to or to cancel a certificate of candidacy Exclusive ground: Falsity of a material representation in the certificate of candidacy The petition should be filed not later than 25 days from the filing of the certificate of candidacy. It should be decided not later than 15 days before the election, after due notice and hearing. Election Campaign Election Campaign/Partisan Political Activity an act designed to promote the election or defeat of a particular candidate/s to a public office It includes: Forming organizations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes and/or undertaking any campaign for or against a candidate. Holding political caucuses, conferences, meetings, rallies, parades or other similar assemblies for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a candidate.

Making speeches, announcements or commentaries or holding interviews for or against the election of any candidate for public office. Publishing or distributing campaign literature or materials designed to support or oppose the election of any candidate. Directly or indirectly soliciting votes, pledges or support for or against a candidate. When the acts enumerated above are NOT considered election campaign/partisan political activity If the acts are performed for the purpose of enhancing the chances of aspirants for nomination for candidacy to a public office by a political party, aggroupment, or coalition of parties. Campaign Period It is prohibited for any person, political party or association of persons to engage in an election campaign or partisan political activity except during the campaign period. Violation of this prohibition constitutes an election offense RA 9006 FAIR ELECTION ACT Important Features: 1) Repeal of Sec. 67 of the OEC Now, any ELECTIVE official, whether national or local, running for any office other than the one which he is holding in a permanent capacity shall not be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. 2) Lifting of the Political Ad Ban Written and Printed Materials (8.5 W x 14L); Letters Posters (2 x 3) in common-private poster areas ( not more than 10 public places per political party or independent candidate, 12 16), private places and public places Rally streamers (3 x 8) NOT MORE THAN 2 Paid Advertisements Print national Local

1/4 page in broadsheet and 1/2 page tabloid 3x a week 120 minutes 180 minutes 3 national 60 minutes 90 minutes 1 national

Television Radio COMELEC Free Space

newspaper newspape s r 3 television 1 station networks (equal allocation for all candidates for 3 calendar days) Election Survey Refers to the measurement of opinions and perceptions of the voters as regards a candidates popularity, qualifications, platforms or a matter of public discussion in relation to the election, including voters preference for candidates or publicly discussed issues during the campaign period Sec 5.4 of R.A. 9006 which prohibits the publication of surveys 15 days (for national candidates) or 7 days (for local candidates) before an election was declared unconstitutional by the Supreme Court.

Election Contributions & Expenditures Contributions Includes a gift, donation, subscription, loan, advance or deposit of money or anything of value, or a contract, promise or agreement to contribute, whether or not legally enforceable, made for the purpose of influencing the results of the elections but shall not include services rendered without compensation by individuals volunteering a portion or all of their time In behalf of a candidate or political party Include the use of facilities voluntarily donated by other persons, the money value of which can be assessed based on the rates prevailing in the area Prohibited Contributions No contribution for purposes of partisan political activity shall be made directly or indirectly by any of the following: Public or private financial institutions. However, they are not prohibited from making any loan to a candidate or political party if: The financial institutions are legally in the business of lending money, The loan is made in accordance with laws and regulations; and The loan is made in the ordinary course of business Natural and juridical persons operating a public utility or in possession of or exploiting any natural resources of the nation; Natural and juridical persons who hold contracts or sub-contracts to supply the government or any of its divisions, subdivisions or instrumentalities, with goods or services or to perform construction or other works; Natural and juridical persons who have been granted franchises, incentives, exemptions, allocations or similar privileges, exemptions, allocations or similar privileges or concessions by the government or any of its divisions, subdivisions or instrumentalities, including GOCCs; Natural and juridical persons who, within 1 year prior to the date of the election, have been granted loans or other accommodations in excess of P100,000 by the government or any of its divisions, subdivisions or instrumentalities including GOCCs; Educational institutions which have received grants of public funds amounting to no less than P100,000.00; Officials or employees in the Civil Service, or members of the Armed Forces of the Philippines; Foreigners and foreign corporations, including foreign governments It is unlawful for any person to solicit or receive any contribution from any of the persons or entities enumerated Prohibited Raising of Funds It is unlawful for any person to hold the following for the purpose of raising funds for an election campaign or for the support of any candidate from the commencement of the election period up to and including election day: Dances, Lotteries, Cockfights. Games, Boxing bouts, Bingo, Beauty contests, Entertainments, or cinematographic, theatrical or other performances Expenditures Includes the payment of delivery of money or anything of value, or a contract, promise or agreement to make an expenditure, for the purpose of influencing the results of the election. It shall also include the use of facilities personally owned by the candidate, the money value of the use of which can be assessed based on the rates prevailing in the area. Authorized Expenses ( multiplied with the total number of registered voters )

P 10 for president / vice president P 3 for other candidates for every voter currently registered in the constituency P 5 for independent candidates and political parties Note Donations to political parties are not allowable deductions under the Tax Code Lawful Expenditures Traveling expenses of the candidates and campaign personnel in the course of the campaign and for personal expenses incident thereto; For compensation of campaigners, clerks, stenographers, messengers, and other persons actually employed in the campaign; For telegraph and telephone tolls, postage, freight and express delivery charges; For stationery, printing and distribution of printed matters relative to candidacy; For employment of watchers at the polls; For rent, maintenance and furnishing of campaign headquarters, office or place of meetings; For political meetings and rallies and the use of sound systems, lights and decorations during said meetings and rallies; For newspaper, radio, TV and other public advertisements; For employment of counsel, the cost of which shall NOT be taken into account in determining the amount of expenditures which a candidate or political party may have incurred; For copying and classifying list of voters, investigating and challenging the right to vote of persons registered in the list; such costs shall NOT be taken into account in determining the amount of expenses which a candidate or political party may have incurred; For printing sample ballots in such color, size and maximum number as may be authorized by the COMELEC, such costs NOT to be taken into account in determining the amount of expenses which a candidate or political party may have incurred. THE ELECTION PROPER An election if constituted when there is a plurality of votes sufficient for a choice conditioned on the plurality of valid votes or a valid constituency regardless of the actual number of votes cast. Otherwise, there would be no winner. Failure of Elections Grounds: The election in any polling place has not been held on the date fixed on account of force majeure, violence, terrorism, fraud, or other analogous causes; The election in any polling place had been suspended before the hour fixed by law for the closing of the voting on account of force majeure, violence, terrorism, fraud, or other analogous causes; and After the voting and during the preparation and transmission of the election returns or in the custody or canvass thereof such election results in a failure to elect on account of force majeure, violence, terrorism, fraud or other analogous causes. Before the COMELEC can act on a verified petition seeking to declare a failure of elections, 2 conditions must concur, namely: No voting took place in the precinct or precincts on the date fixed by law, or even if there was voting, the election resulted in a failure to elect; and The votes not cast would have affected the result of the election. Remedy COMELEC can call for the holding or continuation of the election not held, suspended, or which resulted in a failure to elect. The election should be held not later than 30 days after the cessation of the cause of the postponement or suspension of the election or failure to elect. This is decided by the COMELEC, by a majority vote of its members, sitting en banc.

Postponement of Election Grounds Violence Terrorism Loss or destruction of election paraphernalia/records Force majeure Other analogous causes Effect It is impossible to hold a free, orderly and honest election in any political subdivision COMELEC can postpone the election (when decided by a majority vote of the COMELEC sitting en banc, RA 7166): A. Motu proprio B. Upon a verified petition by any interested party, after due notice and hearing Date of new election The date of the postponed election should be reasonably close to the date of the election not held, suspended, or which resulted in a failure to elect. It should not be later than 30 days after the cessation of the cause for such postponement or suspension of the election or failure to elect. Casting of Votes Method of voting Voter must vote in person Voter must vote but once Voter need not vote the whole ticket Absentee voting Applies to the elections for President, Vice-President, and Senators ONLY and shall be limited to Members of the AFP Members of the PNP Other government officers and employees who are duly registered voters and who, on election day, may temporarily be assigned in connection with the performance of their election duties to places where they are not registered voters Counting of Votes The counting of votes is conducted by the Board of Election Inspectors, which shall not adjourn or postpone or delay the count until it has been fully completed, unless otherwise ordered by the COMELEC Marked ballots Ballots containing a distinguishing mark which would tend to identify the voter who cast such ballot Invalidated in their entirety, and none of the votes therein are counted Guiding principles in the Appreciation of Ballots Liberal Construction in favor of the validity of the ballot Minor blemishes should not affect the validity of the ballot where the intention of the voter to vote for certain persons is discernible in the ballot

Rules for appreciation of ballots Every ballot shall be PRESUMED VALID UNLESS there is clear and good reason to reject it. BALLOT HOW COUNTED

Ballots containing the name of a candidate affixed thereto through any MECHANICAL process Ballot clearly appears to have been FILLED by 2 DIFFERENT PERSONS before deposited in ballot box Ballot written with CRAYON, LEAD PENCIL or INK, wholly or in part INITIALS only or ILLEGIBLE or does NOT sufficiently identify the candidate for whom it is intended Vote for a person who has not filed a certificate of candidacy or in favor of a candidate for an office for which he did not present himself Vote for a candidate who has been disqualified by final judgment Only candidates' FIRST NAME or SURNAME is written, and there is NO other candidate with the same first name or surname for the same office Only candidates' FIRST NAME is written which when read has a SOUND SIMILAR to the SURNAME of another candidate If there are 2 or more candidates

Totally void

Totally void

Valid Considered as a STRAY vote BUT shall NOT invalidate the whole ballot Considered as a STRAY vote BUT shall NOT invalidate the whole ballot Considered as a STRAY vote BUT shall NOT invalidate the whole ballot vote for the candidate is valid

Vote counted in favor of the candidate with such SURNAME

with the SAME FULL NAME, FIRST NAME or SURNAME, and one of them is the INCUMBENT. and on the ballot is written ONLY such full name, first name or surname Woman candidate uses her MAIDEN NAME or MARRIED NAME or BOTH, and there is another candidate with the SAME SURNAME

Vote counted for the INCUMBENT

2 or more words are written on the SAME LINE on the ballot, and ALL of which are the SURNAMES of 2 or MORE CANDIDATES

A ballot bearing only such surname shall be counted in favor of the candidate who is an INCUMBENT Vote shall NOT be counted for any of them UNLESS one is the surname of the incumbent who has served for at least 1 year counted for the INCUMBENT

2 or more words are written on DIFFERENT LINES on the ballot, ALL of which are the SURNAMES of 2 MORE CANDIDATES bearing the same surname for an OFFICE of which the law authorizes the election of MORE THAN ONE and there are the SAME NUMBER of such SURNAMES written as there are candidates with that surname 1 word is written on the ballot which is the FIRST NAME

Vote counted in favor of ALL CANDIDATES bearing the surname

Vote counted for the

of a candidate and which is also the SURNAME of his opponent 2 words written on the ballot, 1 of which is the FIRST NAME of the candidate and the other is the SURNAME of his opponent Name or surname INCORRECTLY WRITTEN which when READ has a SOUND SIMILAR to the name or surname of a candidate when correctly written (Idem Sonans rule) Name or surname of a candidate appears in the space of the ballot for an office for which he is a candidate and for an office for which he is NOT a candidate

OPPONENT (SURNAME)

Vote shall NOT be counted for either

Vote counted in favor of such a candidate

Vote shall be counted for the candidate for the office for which he is running for. Vote for the office for which he is NOT a candidate shall be considered a STRAY vote EXCEPT when it is used to identify the voter in which case the whole ballot is VOID

Name of a candidate is NOT written in the PROPER SPACE on the ballot but is PRECEDED by the name of the OFFICE for which he is a candidate

Vote counted for the candidate

Words written on the APPROPRIATE BLANK on the ballot is the IDENTICAL NAME or SURNAME OR FULL NAME of 2 or MORE candidates for the SAME OFFICE, none of whom is the incumbent

Vote counted in favor of that candidate to whose ticket belong all the other candidates voted for in the same ballot for the same constituency PREFIXES AND SUFFIXES are valid Considered as signs of his desistance from voting and shall NOT invalidate the ballot Vote counted for the one CLEARLY WRITTEN shall NOT annul it shall NOT annul it the ballot

PREFIXES such as "Sr.", "Mr.", "Datu", "Don","Ginoo", "Hon.", "Gob." or SUFFIXES like "Hijo", "Jr.", "Segundo" CIRCLES, CROSSES, LINES on spaces which the voter has not voted

Space in the ballot appears a NAME of a candidate that is ERASED and another CLEARLY WRITTEN ACCIDENTAL tearing or perforation of the ballot Failure to remove the DETACHABLE COUPON from the ballot Erroneous initial of FIRST NAME accompanied by CORRECT SURNAME of the candidate Erroneous initial of SURNAME accompanied by CORRECT FIRST NAME of the candidate

Shall NOT annul the vote Shall NOT annul the vote

erroneous MIDDLE INITIAL The fact that there exists another person who is NOT a candidate with the same first name or surname of a candidate COMMAS, DOTS, HYPHENS between the first name and surname of the candidate or on other parts of the ballot Traces of letter "T" or "J" or similar ones First letters or syllables of names which the voters does not continue UNINTENTIONAL or ACCIDENTAL flourishes, strokes, strains NICKNAMES and APPELATIONS of affection and friendship accompanied by the FIRST NAME or SURNAME of the candidate

Shall NOT annul the vote Shall NOT annul the vote

Shall NOT invalidate the ballot UNLESS it clearly appears that they were deliberately put by the voter as IDENTIFICATIO N marks in which case, the ballot is VOID Shall NOT annul the vote EXCEPT when such is used to identify the voter in which case the whole ballot is VOID Vote counted for the candidate IF there is no other candidate for the SAME OFFICE with the SAME NICKNAME Vote NOT counted in favor of any candidate having such first name BUT

NICKNAME used is one by which the candidate is generally or POPULARLY KNOWN in the locality as UNACCOMPANIED by a first name or surname of the candidate CORRECTLY written FIRST NAME of the candidate with a DIFFERENT SURNAME

2 or more candidates are voted for an office which the law authorizes election of only ONE

Candidates voted for EXCEED the number of those to be elected

Ballots totally written in ARABIC in localities where it is of GENERAL USE

the ballot is considered valid for other candidates Vote NOT counted in favor of any of them BUT the ballot is considered valid for other candidates Valid ballot BUT the votes counted are those names which were FIRST WRITTEN by the voter until the authorized number is covered VALID (to read such ballots, the board of election inspectors can use an interpreter who has shall take an oath to read them correctly)

Election Returns Official document containing the date of the election, the province, municipality and the precinct in which it is held, and the votes received by each candidate written in figures and in words. Document on which the Certificates of Canvass are based, and is the only document that constitutes sufficient evidence of the true and genuine results of the elections Certificate of Votes Document which contains the number of votes obtained by each candidate written in words and figures, the number of the precinct, the name of the city or municipality and province, the total number of voters who voted in the precinct, and the date and time issued Must be signed and thumb marked by each member of the Board. The Certificate of Votes is evidence of the votes obtained by the candidates. (Balindong vs. COMELEC, 27 SCRA 567)

A certificate of Votes can never be a valid basis for canvass, and does not constitute

sufficient evidence of the true and genuine results of the elections; only election returns are. (Garay vs. COMELEC, 261 SCRA 222) Canvass Process by which the results in the election returns are tallied and totaled Certificates of canvass Official tabulations of votes accomplished by district, municipal, city and provincial canvassers based on the election returns, which are the results of the ballot count at the precinct level Statement of Votes Tabulation per precinct of votes garnered by candidates as reflected in the election returns; its preparation is administrative function of the board, purely a mechanical act over which COMELEC has direct control and supervision Supports the certificate of canvass and is the basis of proclamation
PROVINCI AL CITY MUNICIPA L

Chairm an

Provincial election superviso r or lawyer in the regional office of the COMELE C

City election registrar or a lawyer of COMEL EC; In cities with more than 1 election registrar, COMEL EC shall designat e the election registrar who shall act as chairman City fiscal

Election registrar or a representa tive of COMELEC

Vice Chair Mem ber

Provincial fiscal Provincial superinten dent of schools

City superinten dent of schools

Municip al treasure r Most senior district school dsupervi sor or in his absence

a principal of the school district or the element ary school Congress as the National Board of Canvassers Congress shall determine the authenticity and due execution of the certificate of canvass for President and Vice President as accomplished and transmitted by the local board of canvassers The Overseas Absentee Voting Act of 2002 insofar as it grants sweeping authority to the Comelec to proclaim the winning candidates, is unconstitutional as it is repugnant to Sec 4 Art VII of the Constitution, which vests in Congress the authority to proclaim the winning Presidential and Vice Presidential candidates.(Makalintal vs. Comelec) Even after Congress had adjourned its regular session, it may continue to perform the constitutional duty of canvassing the presidential and vice-presidential election results without need of any call of a special session by the President. Pimentel Jr. v Joint Committee of Congress to canvass the votes cast for President and Vice President

Pre-Proclamation Controversies Definition Refers to any question pertaining to or affecting the proceedings of the board of canvassers which may be raised by any candidate or by any registered political party or coalition of political parties before the board or directly with the COMELEC. Also refer to any matter raised under Sections 233, 234, 235, and 236 of the Omnibus Election Code in relation to the preparation, transmission, receipt, custody, and appreciation of the election returns. (Board of canvassers have original jurisdiction while COMELEC have appellate jurisdiction) 1. When election returns are delayed, lost or destroyed (Sec.233) 2. Material defects in the election returns (Sec. 234) 3. When election returns appear to be tampered with or falsified. (Sec. 235) 4. Discrepancies in election returns (Sec. 236) Those that can be filed with COMELEC directly are the ff: Issue involves the illegal composition or proceedings of the board of canvassers, as when a majority or all of the members do not hold legal appointments or are in fact usurpers Issue involves the correction of manifest errors in the tabulation or tallying of the results during the canvassing Jurisdiction COMELEC has exclusive jurisdiction

Preproclamation cases

Cases of Actions for Annulment of Election Results or Declararion of Failure of Elections Comelec may conduct technical examination of election documents and compare and analyze voters' signatures and fingerprints in order to determine whether or not the elections had indeed been free, honest and clean

Restricted to an examination of the election returns on their face

Without jurisdiction to go beyond or behind election returns and investigate election irregularities

Recount There can be a recount under the grounds of 234-236. The returns involved will affect the results and the integrity of the ballot box has been preserved Issues that may be raised in a pre-proclamation controversy A. Illegal composition or proceedings of the board of canvassers B. The canvassed election returns are incomplete, contain material defects, appear to be tampered with or falsified, or contain discrepancies in the same returns or in authentic copies thereof. C. The election returns were prepared under duress, threats, coercion, or intimidation, or they are obviously manufactured, or not authentic. D. When substitute or fraudulent returns in controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate/s. Procedure A. Contested composition or proceedings of the board (under RA 7166) It may be initiated in the board or directly with COMELEC. B. Contested election returns (under RA 7166) Matters relating to the preparation, transmission, receipt, custody and appreciation of the election returns, and certificate of canvass, should be brought in the first instance before the board of canvassers only. Summary nature of pre-proclamation controversy A. Pre-proclamation controversies shall be heard summarily by the COMELEC. B. Its decision shall be executory after the lapse of 5 days from receipt by the losing party of the decision, unless restrained by the SC. Effect of filing petition to annul or suspend proclamation It suspends the running of the period within which to file an election protest or quo warranto proceedings.

When not allowed Pre-proclamation cases on matters relating to the preparation, transmission, receipt, custody and appreciation of the election returns or the certificates of canvass NOT allowed in elections for: (under RA 7166) President Vice-President Senator Member of the House of Representatives BUT: The appropriate canvassing body motu propio or upon written complaint of an interested person can correct manifest errors in the certificate of canvass or election returns before it. BUT: Questions affecting the composition or proceedings of the board of canvassers may be initiated in the board or directly with COMELEC. When pre-proclamation cases are deemed TERMINATED (RA 7166) A. All pre-proclamation cases pending before the COMELEC shall be deemed terminated at the beginning of the term of the office involved and the rulings of the boards of canvassers concerned deemed affirmed. B. This is without prejudice to the filing of a regular election protest by the aggrieved party. C. HOWEVER: Proceedings MAY CONTINUE if: 1. The COMELEC determines that the petition is meritorious and issues an order for the proceedings to continue or 2. The Supreme Court issues an order for the proceedings to continue in a petition for certiorari. Election Contest Adversarial proceedings by which matters involving the title or claim to an elective office, made before or after proclamation of the winner, is settled whether or not the contestant is claiming the office in dispute. The purpose of an election contest is to ascertain the candidate lawfully elected to office Original Jurisdiction COMELEC has ORIGINAL jurisdiction over contests relating to the elections, returns, qualifications of all elective: Regional Provincial City officials Appellate Jurisdiction COMELEC has APPELLATE jurisdiction over all contests involving: Elective MUNICIPAL officials decided by trial courts of GENERAL jurisdiction Elective BARANGAY officials decided by trial courts of LIMITED jurisdiction Who can file a petition contesting the election Any candidate who has duly filed a certificate of candidacy and has been voted for the same office Purpose of an election contest The defeated candidate seeks to oust the proclaimed winner and claims the seat. Final COMELEC Decisions Provision that decisions, final orders, rulings of the Commission on election contests involving municipal and barangay offices are final, executory and not appealable: This only applies to questions of FACT. ( Flores v. COMELEC, 184 SCRA 484) It does NOT preclude a special civil action of certiorari. (Galido v. COMELEC, Jan. 18,1991) Distinctions between Pre-Proclamation Controversy and Election Contest

Pre-proclamation controversy Jurisdiction of COMELEC is administrative/quasijudicial Governed by the requirements of administrative due process

Election Contest Jurisdiction of COMELEC is judicial governed by the requirements of judicial process

In some cases, even if the case (involving municipal officials) began with the COMELEC before proclamation but a proclamation is made before the controversy is resolved, it ceases to be a pre-proclamation controversy and becomes an election contest cognizable by the RTC. However, in some cases, the SC has recognized the jurisdiction of COMELEC over municipal cases even after proclamation. Relate to the provision in RA 7166 allowing pre-proclamation controversy proceedings to continue even after a proclamation has been made. Jurisdiction over election contests Supreme Court en banc (sole judge) Senate Electoral Tribunal (sole judge) House of Representatives Electoral Tribunal (sole judge) COMELEC (exclusive original) (appellate) Regional Trial Courts (exclusive original) Municipal Trial Courts (exclusive original) President and Vice President Senators

Congressmen and Partylist Representatives Regional, Provincial, City Elective Officials Elective Municipal officials Elective Municipal officials Barangay officials

Kinds of election contests Election Protest may be filed by any candidate who has filed a certificate of candidacy and has been voted upon for the same Quo Warranto may be filed by any registered voter in the constituency

office, and who has not himself caused or contributed to the irregularities or frauds of which he complains Grounds: Fraud, terrorism, irregularities or illegal acts committed before, during, or after the casting and counting of votes Period for filing: Within 10 days from proclamation of the results of the election casting and counting of votes Period for filing: Within 10 days from proclamation of the results of the election Grounds: Ineligibility or disloyalty to the Republic of the Philippines

Period for filing: Within 10 days from proclamation of the results of the election Period for filing: Within 10 days from proclamation of the results of the election

Election Offenses (Selected Offenses) Vote buying and vote-selling A. Covered acts Give, offer or promise money or anything of value Making or offer to make any expenditure, directly or indirectly, or cause an expenditure to be made to any person, association, corporation, entity or community Soliciting or receiving, directly or indirectly, any expenditure or promise of any office or employment, public or private B. Purpose of acts To induce anyone or the public in general to vote for or against any candidate or withhold his vote in the election or To vote for or against any aspirant for the nomination or choice of a candidate in a convention or similar selection C. Under RA 6646 (Prosecution of vote-buying/selling) Presentation of a complaint supported by affidavits of complaining witnesses attesting to the offer or promise by or the voters acceptance of money or other consideration from the relatives, leaders or

sympathizers of a candidate is sufficient basis for an investigation by the COMELEC, directly or through its duly authorized legal officers. Disputable presumption of conspiracy: Proof that at least one voter in different precincts representing at least 20% of the total precincts in any municipality, city or province has been offered, promised or given money, valuable consideration or other expenditure by a candidate relatives, leaders and/or sympathizers for the purpose of promoting the election of such candidate. Disputable presumption of involvement Proof affects at least 20% of the precincts of the municipality, city or province to which the public office aspired for by the favored candidate relates. This will constitute a disputable presumption of the involvement of such candidate and of his principal campaign managers in each of the municipalities concerned in the conspiracy Coercion of a subordinate A. Who can be held liable: public officer officer of a public/private corporation/association heads/superior/administrator of any religious org. employer/landowner B. Prohibited acts 1. Coercing, intimidating or compelling or influencing, in any manner, any subordinates, members, parishioners or employees or house helpers, tenants, overseers, farm helpers, tillers or lease holders to aid, campaign or vote for or against a candidate or aspirant for the nomination or selection of candidates. 2. Dismissing or threatening to dismiss, punishing or threatening to punish by reducing salary, wage or compensation or by demotion, transfer, suspension etc. Appointment of new employees, creation of new position, promotion or giving salary increases A. Who can be held liable: Any head/official/appointing officer of a government office, agency or instrumentality, whether national or local, including GOCCs. B. Prohibited acts Appointing or hiring a new employee (provisional, temporary or casual) Creating or filling any new position Promoting/giving an increase in salary, remuneration or privilege to any government official or employee. C. Period when acts are prohibited 45 days before a regular election 30 days before a special election D. Exceptions 1. Upon prior authority of COMELEC if it is satisfied that the position to be filled is essential to the proper functioning of the office/agency concerned AND that the position is not filled in a manner that may influence the election 2. In case of urgent need, a new employee may be appointed. Notice of appointment should be given to COMELEC within 3 days from appointment. Prohibition against release, disbursement or expenditure of public funds A. Who can be held liable: Any public official or employee including barangay officials and those of GOCCs/subsidiaries

B. Prohibited acts:

The release, disbursement or expenditure of public funds for any and other kinds C. Period when acts are prohibited: 1. 45 days before a regular election 2. 30 days before a special election

of public works

D. Exceptions 1. Maintenance of existing/ completed public works project. 2. Work undertaken by contract through public bidding, or by negotiated contract awarded before the 45 day period before election 3. Payment for the usual cooperation for working drawings, specifications and other procedures preparatory to actual construction including the purchase of material and equipment and incidental expenses for wages. 4. Emergency work necessitated by the occurrence of a public calamity but such work shall be limited to the restoration of the damaged facility. 5. Ongoing public work projects commenced before the campaign period or similar projects under foreign agreements. Suspension of elective, provincial, city, municipal or barangay officer General rule: public official CANNOT suspend any of the officers enumerated above during the election period. Exceptions With prior approval of COMELEC Suspension is for the purpose of applying the Anti-Graft and Corrupt Practices Act In relation to registration of voters/voting Unjustifiable refusal to register and vote Voting more than once in the same election/voting when not a registered voter Voting in substitution for another with or without the latters knowledge and/or consent etc. Other election offenses under RA 6646 A. Causing the printing of official ballots and election returns by printing establishments not on contract with COMELEC and printing establishments which undertakes unauthorized printing B. Tampering, increasing or decreasing the votes received by a candidate or refusing after proper verification and hearing to credit the correct votes or deduct the tampered votes (committed by a member of the board of election inspectors) C. Refusing to issue the certificate of voters to the duly accredited watchers (committed by a member of the BEI) D. Person who violated provisions against prohibited forms of election propaganda E. Failure to give notice of meetings to other members of the board, candidate or political party (committed by the Chairman of the board of canvassers) F. A person who has been declared a nuisance candidate or is otherwise disqualified who continues to misrepresent himself as a candidate (Ex. by continuing to campaign) and any public officer or private individual who knowingly induces or abets such misrepresentation by commission or omission. G. If the chairman of the BEI fails to affix his signature at the back of the official ballot, in the presence of the voter, before delivering the ballot to the voter. (under RA 7166) Since Election offenses are generally mala prohibita, proof of criminal intent is not necessary. Good faith, ignorance, or lack of malice is not a defense; the commission of the prohibited act is sufficient. Prescription of Election Offenses 1. Election offenses shall prescribe after 5 years from the date of their commission 2. If the discovery of the offense is made in an election contest proceeding, the period of prescription shall commence on the date on which the judgment in such proceedings becomes final and executory Jurisdiction of courts A. RTC has exclusive original jurisdiction to try and decide any criminal action or proceedings for violation of the Code.

B. MTC/MCTC have jurisdiction over offenses relating to failure to register or vote. Doctrine of Primary Jurisdiction 1. This doctrine states that courts cannot or will not determine a controversy which requires the expertise, specialized skills and knowledge of the proper administrative bodies because technical matters of intricate questions of fact are involved. 2. Relief must first be obtained in an administrative proceeding before a remedy will be supplied by the court even though the matter is within the proper jurisdiction of a court. Doctrine of Prior Resort When a claim originally cognizable in the courts involves issues which, under a regulatory scheme are within the special competence of an administrative agency, judicial proceedings will be suspended pending the referral of these issues to the administrative body for its view. Note: The doctrines of primary jurisdiction and prior resort have been considered to be interchangeable. Doctrine of Exhaustion of Administrative Remedies 1. Under this doctrine, an administrative decision must first be appealed to the administrative superiors up to the highest level before it may be elevated to a court of justice for review. 1. Reasons : a. to enable the administrative superiors to correct the errors committed by their subordinates. b. Courts should refrain from disturbing the findings of administrative. bodies in deference to the doctrine of separation of powers. c. courts should not be saddled with the review of administrative cases d. judicial review of administrative cases is usually effected through special civil actions which are available only if their is no other plain, speedy and adequate remedy. 3. Exceptions when the question raised is purely legal, involves constitutional questions when the administrative body is in estoppel when act complained of is patently illegal when there is urgent need for judicial intervention when claim involved is small when irreparable damage is involved when there is no other plain, speedy , adequate remedy when strong public interest is involved when the subject of controversy is private land in quo warranto proceedings When the administrative remedy is permissive, concurrent utter disregard of due process long-continued and unreasonable delay amount involved is relatively small when no administrative review is provided respondent is a department secretary (DOCTRINE OF QUALIFIED POLITICAL AGENCY ALTER EGO DOCTRINE) Substantial evidence defined to mean not necessarily preponderant proof as required in ordinary civil cases but such kind of relevant evidence which a reasonable mind might accept as a truth. REPUBLIC ACT No. 9189 Overseas Absentee Voting Act Law that ensures equal opportunity to all qualified citizens of the Philippines abroad in the exercise of their right to participate in the election of President, Vice-President, Senators and Party-List Representatives.

The Overseas Absentee Voting Act was first implemented in the May 10, 2004 national elections. All Filipino citizens, not otherwise disqualified by law, at least eighteen (18) years of age on the day of the election, and who are registered overseas absentee voters with approved application to vote in absentia, may vote. Disqualified from registering as overseas absentee voters Those who have lost their Philippine citizenship in accordance with Philippine laws; Those who have expressly renounced their Philippine citizenship and who have pledged allegiance to a foreign country; Those who have been convicted by final judgment of a court or tribunal of an offense punishable by imprisonment of not less than one (1) year, unless such disability has been removed by plenary pardon or amnesty; Those who have been found guilty by final judgment of Disloyalty as defined under Article 137 of the Revised Penal Code, unless such disability has been removed by plenary pardon or amnesty; An immigrant or a permanent resident who is recognized as such in the host country, unless he/she executes upon filing of an application for registration as overseas absentee voter an affidavit declaring that: he/she shall resume actual physical permanent residence in the Philippines not later than three (3) years from approval of his/her registration, and (ii) he/she has not applied for citizenship in another country; Any citizen of the Philippines abroad previously declared insane or incompetent by competent authority in the Philippines or abroad, as verified by the Philippine embassy, consulate or Foreign Service establishment concerned, unless such competent authority subsequently certifies that such person is no longer insane or incompetent. However, those disqualified under paragraphs (c) and (d) hereof who have not been granted plenary pardon or amnesty shall automatically acquire or reacquire the right to vote as an overseas absentee voter upon the expiration of five (5) years after service of sentence. May Filipino citizens abroad or Filipino citizens in the Philippines who will be abroad on election day become registered overseas absentee voters by filing an application for registration or certification as overseas absentee voters? No, a registered overseas absentee voter must have an approved application to vote in absentia to be entitled to vote. Application forms may be obtained from: the Philippine embassies, consulates and other foreign service establishments, the Committee on Overseas Absentee Voting at the COMELEC, and the Office of the Election Officer in every city/municipality/district. Application shall be filed: If abroad during the period for the filing of applications - with the representative of the Commission at the Philippine embassy, consulate and other foreign service establishment having consular jurisdiction over the locality where voter temporarily reside. In case of seafarers, with the representative of the Commission at the Philippine embassy, consulate and other foreign service establishment having consular jurisdiction over the locality where vessel is docked. If in the Philippines during the period for the filing of applications but will be abroad on the day of the election - File with the Election Registration Board of the city/municipality/district where domiciled prior to departure from the Philippines. In case of seafarers, either with (i) the Election Registration Board of the city/municipality/district where domiciled prior to departure from the Philippines or (ii) the Committee on Overseas Absentee Voting. Qualified overseas absentee voters shall cast their votes personally only in the designated voting area within the premises of the Philippine embassy, consulate and other Foreign Service establishment that has jurisdiction over the country where they temporarily reside, or at any polling place designated and accredited by the Commission therein. Votes may also be cast by mail in countries where the Commission has authorized the same. The voter may be challenged from voting on the basis of: Being an illegal voter (not being registered, using the name of another; or suffering from existing disqualification OR for having committed illegal acts (received or expects to

receive money or anything of value as consideration for his/her vote, has paid, offered or promised to pay, has contributed, offered or promised to contribute money or anything of value as consideration for the vote of another, made or received a promise to influence the giving or withholding of any such vote; or made a bet or is interested directly or indirectly in a bet, which depends upon the results of the election). An illiterate voter or one, who cannot accomplish the ballot by reason of physical disability, may still vote, as long as the fact of illiteracy or physical disability was indicated in the application for registration/certification and to vote in absentia. Such person shall be assisted by a relative within the fourth civil degree of consanguinity or affinity, or, by any person in confidence who belongs to the same household, or by any member of the SBEI. Prohibited Acts In addition to the prohibited acts provided by law, it shall be unlawful: For any officer or employee of the Philippine government to influence orattempt to influence any person covered by the Act to vote or not to vote, for a particular candidate; For any person to deprive any person of any rights secured under the Act, or to give false information as to his/her name, address, or period of residence for the purpose of establishing his/her eligibility or ineligibility to register or vote under the Overseas Absentee Voting Act; or to conspire with another person for the purpose of encouraging the giving of false information in order to establish the eligibility or ineligibility of any individual to register or vote under the Overseas Absentee Voting Act; or to pay, or offer to pay, or to accept payment either for applications to vote in absentia or for voting; For any person to tamper with the ballot, the mail containing the ballots for overseas absentee voters, the election returns, including the destruction, mutilation and manipulation thereof; For any person to steal, destroy, conceal, mutilate or alter any record, document or paper as required for purposes of the Overseas Absentee Voting Act; For any deputized agent to refuse without justifiable ground, to serve or continue serving, or to comply with his/her sworn duties after acceptance of his/her appointment; For any public officer or employee who shall cause the preparation, printing, distribution of information materials, or post the same in websites without prior approval of the Commission; For any public officer or employee to cause the transfer, promotion, extension, recall of any member of the foreign service corps, including members of attached agencies, or otherwise cause the movement of any such member from his/her current post or position one (1) year before and three (3) months after the day of elections, without securing prior approval of the Commission; For any person who, after being deputized by the Commission to undertake activities in connection with the implementation of the Act, shall campaign for or assist, in whatever manner, candidates in the election; or For any person who is not a citizen of the Philippines to participate, by word or deed, directly or indirectly through qualified organizations/ associations, in any manner and at any stage of the Philippine political process abroad, including participation in the campaign and elections.

PUBLIC INTERNATIONAL LAW International law It is a branch of public law which regulates the relations of States and of other entities which have been granted international personality (e.g. the UN Law that deals with the conduct of States and international organizations, their relations with each other and, in certain circumstances, their relations with persons, natural or juridical Basis of International Law Law of Nature School Based on rules of conduct discoverable by every individuals in his own conscience and through application of right reasons Positivist School

Agreement of sovereign states to be bound by it (express in conventional law, implied in customary law, and presumed in general principles) Eclectic or Groatian School A compromise between the first 2 schools and submits that international law is binding partly because it is good and right and partly because states agreed to be bound by it RELATION OF INTERNATIONAL LAW AND MUNICIPAL LAW Public International Law vs. Municipal Law vs. Private International Law International Law prescribes rules and processes that govern the relations of sovereign states with each other, and the rights of other entities insofar as they implicate the community of states Municipal law deals with the conduct or status of individuals, corporations, and other private entities within particular states Private international law part of the laws of each State, which determines whether in dealing with a factual situation involving a foreign element, the law or judgment of some other state will be recognized or applied in the forum INTERNATIONA L LAW Law of coordination MUNICIPAL LAW Law of subordination (issued by political superior) Regulates relations of individuals among themselves or with their own states Consists mainly of statutory enactments, and to a lesser extent executive orders and judicial pronouncements Redressed thru local administrative and judicial processes Breach of which entails individual responsibility

Regulates relation of states and other international persons Derived principally from treaties, international customs and general principles of law Resolved thru state-to state transactions Collective responsibility because it attaches directly to the state and not to its nationals

Dualism vs Monism Monism Internationa International

Dualism That the

l and domestic law as legal orders

law and municipal law are two separate systems, with only those problems affecting International relations being within the scope of international law Neither legal order has the power to create or alter rules of the other

international and the municipal legal systems are fundamentall y part of one legal order

On which legal order is superior

Assertion of the supremacy of international law even in the municipal sphere, with domestic law as a mere subset of international law That international norms are applicable within municipal systems even without some positive act of the state or its bodies

How one legal order or operates or acts within the other

Before an international norm can have an effect in municipal law, such must be transformed or adopted into the municipal system through a positive act by the domestic legislature That international law and domestic

On what each legal order

International law, like municipal law,

regulates

law regulate different subject matter: international law for states; domestic law for individuals

is concerned with the conduct and welfare of individuals

Monist-naturalist That international law is superior That both systems are but part of a higher system of natural law Theory of Coordination That the two systems do not conflict as they work in separate fields But that municipal law generally obliged to be in conformity with international law There may, however, be a conflict in obligations, an inability of the state to act in the domestic place in a manner required by international law The consequence is not invalidity of the internal law but responsibility of the state in the international plane the standard by which to determine the legality of a States conduct

Divisions of International Law 1. LAWS OF PEACE- Governs the normal relations of States 2. LAWS OF WAR - Rules during periods of hostility 3) LAWS OF NEUTRALITY- rules governing States not involved in the hostilities Obligations of States and Municipal Law A state cannot plead the provisions of its own law or deficiencies in that law in answer to a claim against it for an alleged breach of its obligations under international law From the nature of treaty obligations and from customary law, there is a general duty to bring internal law in conformity with obligations under international law A breach of international law arises only when the state concerned fails to observe its obligations o n a specific occasion and not upon mere failure to establish conformity in (2). Position of the Individual International law imposes certain duties on individuals (i.e. That they cannot commit certain international crimes) Individuals or corporations may at times plead that a treaty has legal consequences on them DOCTRINE OF INCORPORATION - rules of international law form part of the law of the land and no further legislative action is needed to make such rules applicable in the domestic sphere. a. Such is recognized in art. 2, sec. 2, as the Philippines "adopts the generally accepted principles of international law as part of the law of the land." b. Rules of international law are given equal standing with, but are not superior to, national legislative enactments. Thus, the Constitution, as the highest law of the land, may invalidate a treaty in conflict with it. [Secretary of Justice v. Hon. Lantion and Mark Jimenez, Jan. 18, 2000] DOCTRINE OF TRANSFORMATION - the generally accepted rules of int'l law are not per se binding upon the State but must first be embodied in legislation enacted by the lawmaking body and so transformed into municipal law. Only when so transformed will they become binding upon the State as part of its municipal law. Example: Article VII, Section 21 of the Philippine Constitution setting down the mechanism for transforming a

treaty into binding municipal law. Res Judicata and the 2 legal orders There is no effect of res judicata from the decision of a municipal court so far as international jurisdiction is concerned (Parties and issues are different) Decisions by organs of international organizations are not binding in national courts without the domestic legal system adopting some broad provision for automatic incorporation of treaty norms or require specific acts of incorporation at least for certain categories of treaties. SOURCES OF INTERNATIONAL LAW Article 38 of the Statute of the International Court of Justice (ICJ) is considered the authoritative enumeration of the sources of International Law. PRIMARY 1. Treaty / International Conventions Generally, a treaty only binds the parties. However, treaties may be considered a direct source of Int'l law when concluded by a sizable number of States (law-making treaty) and is reflective of the will of the family of nations (in which case, a treaty is evidence of custom). 2. International Custom - Practices which, through persistent usage, have grown to be accepted by States as legally binding. 2 Elements: 3. State Practice a consistent and uniform external conduct of States. Generally, both what states say and what they do are considered state practice. 4. Opinio Juris - State practice must be accompanied with the conviction that the State is legally obligated to do so by int'l law, and not throughmere courtesy or comity, or because of humanitarian considerations. 'INSTANT' CUSTOM Customary law may emerge even within a relatively short passage of time, if within that period, State Practice has been uniform and extensive. (ex. Law on the Continental Shelf) Thus, int'l law does NOT always require a long period of time to elapse before conduct is considered customary. 3. General Principles of Law - Principles common to most national systems of law; rules based on natural justice. ex. good faith, estoppel, exhaustion of local remedies, res judicata, res inter alios acta, equality of states, pacta sunc servanda SECONDARY 1. Judicial Decisions - a subsidiary means for the determination of rules of law (e.g., determining what rules of customary IL exist) that is acceptable so long as they correctly interpret and apply int'l law. Note: Decisions of national or municipal tribunals are not a source of law but the cumulative effect of uniform decisions of the courts of the most important States is to afford evidence of international custom. (Salonga & Yap, Public International Law, 5th Edition) ex. Principles on diplomatic immunity have been developed by judgments of national courts.

1. Teachings of Publicists -- The word 'Publicist' means 'learned writer.' Learned writings, like judicial
decisions, can be evidence of customary law, and can also play a subsidiary role in developing new rules of law. 2 Requisites: 1. Fair and impartial representation of law. 2. By an acknowledged authority in the field. OTHER SOURCES OF LAW Ex Aequo et Bono Means from what is equitable and good Possible application Consider as the equivalent of the application of equity Consider as implying the use of compromise, conciliation and friendly settlement between the parties

Equity The application of standards of justice that are not contained in the letter of the existing law THE STATUS OF NORMS Jus Cogens Customary international law which has the status of a peremptory (absolute, uncompromising, certain) norm of international law Peremptory norm norm accepted and recognized by the international community of states as a rule, from which no derogation is permitted and which can be modified only by a subsequent norm having the same character Erga Omnes International obligations of such a nature that their violation by any state allows any other state to invoke the violators liability, even if only one state or only a few incurred direct material damage Functions of International Law Promote international peace and security Foster friendly relations among nations and discourage use of force in the resolution of difference among them Provide for orderly regulation of conduct of states in their mutual dealings Ensure international cooperation in pursuit of certain common purposes of economic, social, cultural or humanitarian character SUBJECTS OF INTERNATIONAL LAW Subject Entity that has rights and responsibilities under international law and having the capacity to maintain its rights by bringing international claims, includes: States Colonies and dependencies Mandates and trust territories The Vatican The United Nations Belligerent communities International Administrative bodies Individuals, to a certain extent Object a person or thing in respect of which rights are held and obligations assumed by the subject; it is not directly governed by the rules of international law; Its rights are received, and its responsibilities imposed, indirectly through the instrumentality of an international agency. Traditionally, individuals have been considered merely as objects, not subjects, of international law; However, modern IL now grants, primarily through treaties, a certain degree of international personality to individuals (e.g. individuals are granted by treaty the power to sue before the European Court of Human Rights) States Group of people, living together in a fixed territory, organized for political ends under an independent government, and capable of entering into international relations with other states Creation of State: by Peaceful acquisition of independence (Philippines); by Revolution (USA); by Unification of several states (Italy);

by Secession (Bangladesh); by Agreement (Netherlands(; and by attainment of Civilization (Japan) CODE: PRUSAC Extinction of State Dismemberment; Annexation; Dissolution of federal union; partial loss of Independence Emigration en masse of its population; Merger or Unification Overthrow of government resulting in anarchy Elements of State People A group of individuals, of both sexes, living together as a community, sufficient in number to maintain and perpetual themselves living in a stable, political community Territory The fixed portion on the earths surface occupied by inhabitants Need not be exactly defined by metes and bounds, so long as there exists a reasonable certainty of identifying it Government Must be organized, exercising control over and capable of maintaining law and order within the territory It can be held internationally responsible for the acts of the inhabitants The identity of the state is not affected by changes in government Independence or Sovereignty Freedom from outside control in the conduct of its foreign (and internal) affairs Distinctions between sovereignty and independence SOVEREIGNTY It refers to the supreme and uncontrollable power inherent in the State by which such State is governed. It has 2 aspects: 1. INTERNAL- freedom of the State to manage its own affairs. 2. EXTERNAL- freedom of the State to direct its foreign affairs. INDEPENDENCE It is synonymous with external sovereignty. It is defined as the power of a State to manage its external affairs without direction or interference from another State. Recognition Recognition of States An act by which a state acknowledges the existence of another state, government or belligerent community and indicates its willingness to deal with the entity as such under rules of international law. Theories: 1. Declaratory It merely affirms an existing fact like the possession by the state of the essential elements. Discretionary and political Constitutive it is the act of recognition that constitute s the entity into an international person. Compulsory and legal;

may be compelled once the elements of a state are established. Basic Rules on Recognition it is a political act and mainly a matter of policy on the part of each state; discretionary on the part of the recognizing authority exercised by the political (executive) department of the state the legality and wisdom of recognition is not subject to judicial review Recognition of Governments It is the free act by which one or several states acknowledge that a person or a group of persons is capable of binding the state which they claim to represent and witness their intention to enter into relations with them Tobar or Wilson Doctrine It precludes recognition of any government established by revolutionary means until the freely elected representatives of the people have organized a constitutional government Stimson Doctrine No recognition of government established through external aggression Estrada Doctrine Since recognition has been construed as approval (and non-recognition, disapproval) of a government established through a political upheaval, a state may not issue a declaration giving recognition to such government, but merely accept whatever government is in effective control without raising the issue of recognition Dealing or not dealing with the government is not a judgment on the legitimacy of the said government Kinds of Recognition Recognition De Jure Extended to a government fulfilling the requirements for recognition Relatively permanent Vests title in the government to its properties abroad Brings about full diplomatic relations Recognition De Facto Extended to a government believed that some of the requirements for recognition are absent Provisional

Does not vest title

limited to certain juridical relations

Effects of Recognition of a State or Government: Diplomatic relations Right to sue in courts of the recognizing state Right to possession of properties situated within the jurisdiction of the recognizing state. All acts of the recognized state or government are validated retroactively, preventing the recognizing state from passing upon their legality in its own courts. Immunity from jurisdiction oactive validation of the acts of the recognized state/government

Conditions for Recognition of Belligerency Organized civil government The rebels occupy substantial portion of territory The conflict is serious and outcome is uncertain The rebels are willing to observe the laws of war Requisites for recognition de jure Government is stable and effective No substantial Government is resistance to its authority The government must show willingness and ability to discharge its international obligations The government must enjoy popular consent or approval of the people Note: Absence of one requisite, such is a recognition de facto Principle of State Continuity The state continues as a juristic being notwithstanding changes in its circumstances provided only that such changes do not result in the loss of any of its essential elements changes in the government or the internal policy of a state do not as a rule affect its position in international law though the government changes, the nation remains, with rights and obligations unimpaired. The state is bound by engagements entered into by governments that have ceased to exist; the restored government is generally liable for the acts of the usurper ( The Tinoco Arbitration) State Succession The substitution of one State by another, the latter taking over the rights and some of the obligations of the former. 2 types of State Succession: 1. UNIVERSAL- takes place when a State is completely annexed by another, or is dismembered or dissolved, or is created as a result of merger of 2 or more States. 2. PARTIAL - takes place when a portion of the territory of a State loses part of its sovereignty by joining a confederation or becoming a protectorate or suzerainty. Effects of State Succession The allegiance of the inhabitants of the predecessor State is transferred to the successor State. The political laws of the predecessor State are automatically abrogated but the non-political laws are deemed continued unless expressly repealed or contrary to the institutions of the new sovereign. The public property of the successor State is acquired by the successor State but not the tort liability of the former. Treaties entered into by the predecessor State are not considered binding on the successor State except those dealing with local rights and duties such as servitudes and boundaries. Succession of Government In succession of government, the integrity of the original State is not affected as what takes place is only a change in one of its elements, the government. Effects of a change in government:

If effected by peaceful means, the new government inherits all rights and obligations of the old government. If effected by violence, the new government inherits all the rights of the old government. However, the new government may reject the obligations of the old government if they are of a political complexion. If the obligations are the consequence of the routinary act of administration of the old government, they should be respected. Colonies and Dependencies From the viewpoint of international law, they are considered as part and parcel of the parent state, through which all its external relations are transacted with other states It has no legal standing in the family of nations Nevertheless, such entities have been allowed on occasion to participate in their own right in international undertakings and granted practically the status of a sovereign state. It is when acting in this capacity that colonies and dependencies are considered international persons Mandates and Trust Territories Non-self-governing territories which have been placed under international supervision to insure their political, economic, social and educational advancement Belligerent Community It is a group of rebels under an organized civil government who have taken up arms against the legitimate government. When recognized, considered as a separate state for purposes of conflict and entitled to all the rights and subjected to all the obligations of a full-pledged belligerent under the laws of war International Administrative Bodies Certain administrative bodies created by agreement among states may be vested with international personality when two conditions concur: Their purposes are mainly non-political; and They are autonomous and not subject to the control of any state The Vatican City Under the Lateran Treaty, Italy recognizes the full authority and jurisdiction of the Holy See over the Vatican Individuals Traditional concept regards the individual only as an object of international law who can act only through the instrumentality of his own state in matters involving others states are autonomous and not subject to the control of any state Of late, however, the view has grown among many writers that the individual is not merely an object but a subject of international law. May precepts of the law of nations are directly applicable to or for the benefit of the individual; sometimes even independently of the state to which he may belong United Nations International organization created at San Francisco Conference held in the US from April 25 to June 26, 1945. UN succeeded the League of Nationals and is governed by a charter that came into force on October 24, 1945. Principal Purposes of UN Prevention of war Maintenance of international peace and security Development of friendly relations among the members of the international community

Attainment of international cooperation and harmony in the actions of nations Qualifications for Membership Must be a state; Must be peace loving; Must accept obligations of member-states contained in the Charter; and Must be able and willing to carry out such obligation

Number of votes required number of votes required 2/3 of the members of the Gen. Assembly and ratified by 2/3 of the members of the UN including permanent members of the Security Council 2/3 of those present and voting in the Gen. Assembly upon recommendation of at least 9 (including all the permanent) members of the Security Council same vote required as in admission. When suspended a member cannot participate in meetings of the Gen. Assembly, cannot be elected to or continue to serve in the Sec. Council, the Econ. And Social Council, the Trusteeship Council; but nationals may continue serving in the Secretariat and the International Court of Justice, although a member is still subject to discharge its obligations under the charter a qualified majority vote

amendment of UN charter

admission of States

suspension

to lift the

suspension expulsion

of the Security Council 2/3 vote of those present and voting in the Gen. Assembly, upon recommendation of a qualified majority of the Security Council on grounds of persistently violating the principles contained in the Charter

International constitutional supremacy clause Article 103 of the UN Charter: In the event of a conflict between the obligations of the Members of the UN under the present Charter and their obligations under any other international agreement, their obligation under the Charter shall prevail. Principal Organs of UN General Assembly central organ where all members are represented Security Council organ responsible for the maintenance of peace and security; undertakes preventive and enforcement actions Composition: 15 members Permanent (Big Five) China, France, Russia, UK, US Other 10 members elected for 2 year terms by the GA Africa and Asian states: 5 Eastern European states: 1 Latin American states: 2 Western European and other states: 2 Decisions on Procedural Matters made by an affirmative vote of 9 members Decisions on all other matters affirmative vote of 9 members including the concurring votes of the permanent members; provided that, in decisions under Chapter VI, and under paragraph # of Article 52, a party to a dispute shall abstain from voting Veto negative vote which any of the permanent members is allowed to cast in the decision of nonprocedural question. The effect of the veto is to defeat the measure under consideration even if supported by a majority or, in fact, all of the other members of the SC Economic and Social Council exerts efforts towards higher standards of living, solutions of international economic, social, health and related problems, universal respect for and observance of human rights and fundamental freedoms Trusteeship Council organ charged with the administration of the International Trusteeship System (idle council) International Court of Justice judicial organ of UN; World Court governed by the Statute which is annexed to and made part of the UN charter Composition: 15 judges Jurisdiction: to decide issues referred to it (consensual) regarding: Interpretation of treaty; Question of international law Existence of fact constituting a breach of international obligation Nature or extent of the reparation to be made for the breach of an international obligation To render advisory opinions May be given upon request of the GA or the SC. Other organs of the UN, when authorized by the

GA, may also request advisory opinion on legal questions arising within the scope of their activities Limitations: only states may be parties in cases before it The consent of the parties is needed for the court to acquire jurisdiction over the case STARE DECISIS does not apply to the ICJ. Under the statute of the Court, previous decisions have no binding force; in practice, however, the Court always takes past decisions into account ex aequo et bono to rule in justice and fairness -- equity overrides all other rules of law. The ICJ has no power to decide a case ex aequo et bono, unless all parties agree thereto [art. 38(2), ICJ Statute]. Secretariat chief administrative organ of the UN How is the Secretary General elected? The Secretary General is chosen by the GA upon the recommendation of the SC. His term is fixed at 5 years by resolution of the GA and he may be re-elected Functions of the Secretary General: Representational the Sec Gen is the highest official and spokesman of the UN. When acting in this capacity, he enjoys the usual diplomatic immunities and privileges, which only the SC may waive Political the Sec Gen may bring to the attention of the Organization any matter which, in his opinion, may threaten or disturb international peace and security. He may assist in its solution with the authority of the SC Administrative the Sec Gen is the head of the Administrative personnel of the UN and is in charge of coordinating the activities of the various organs of the Organization Secretariat the Sec Gen acts in that capacity in all the meetings of the GA, the SC, the ECOSOC and the Trusteeship council Budgetary the Sec Gen also prepares the budget of the UN for submission to and approval by the GA Territory of states Some modes of acquisition: Cession a bilateral agreement whereby one state transfers sovereignty over a definite portion of the territory to another state. Subjugation - It is a derivative mode of acquisition by which the territory of one state is conquered in the course of war and thereafter annexed and placed under sovereignty of the conquering state. Prescription the long continued use of real property ripened into ownership Discovery and Occupation original mode of acquisition by which territory not belonging to any state, or terra nullius, is placed under the sovereignty of the discovering state Outer space is res communes and not susceptible to discovery and occupation Doctrine of effective occupation discovery alone gives only an inchoate title; to be effective, the discovery must be followed within a reasonable time by effective occupation Effective occupation does not necessarily require continuous display of authority in every part of the territory claimed An occupation is valid only with respect to and extends only to the area effectively occupied Conquest the taking of possession of hostile territory through military force in time of war and by which the victorious belligerent compels the enemy to surrender sovereignty of the territory thus occupied. No longer lawful because of UN Charter which prohibits resort to threat or the use of force against the territorial integrity and political independence of any state Accretion the increase in the land area of a State caused by the operation of the forces of nature, or artificially through human labor A. sovereignty over land territory Includes all the lands and the internal waters

Internal waters do not form part of the maritime domain A foreign vessel cannot enter into the ports and harbors of a state invoking the right of innocent passage because it may only be invoked by a foreign vessel when traversing territorial sea which forms part of the maritime domain. What may be invoked is the right of arrival under distress Right of innocent passage Innocent passage means the right of continuous and expeditious navigation of a foreign ship through the territorial sea of a State for the purpose of traversing that sea without entering the internal waters or calling at a roadstead or port facility. The passage is innocent as long as it is not prejudicial to the pease, good order or security of coastal State Man of war refers to naval vessels/submarines which may invoke the right of innocent passage provided that they navigate on the surface of the water and display their flags Right of transit passage has the same concept as right of innocent passage. The only difference between the two is that the right of transit passage may be invoked in case of passage through a strait. (a narrow body of water separating 2 major islands) Sovereignty over maritime domain: the UN Law of the Sea Methods used in defining the territorial sea Normal baseline method Territorial sea is drawn from the low-water mark of the coast to the breath claimed, following its sinuosities and curvatures but excluding the internal waters in bays and gulfs Straight baseline method Straight lines are made to connect appropriate points on the coast without departing radically from its general direction. The waters inside the lines are considered internal waters. Territorial Sea contiguous Zone Exclusive Economic Zone Continental Shelf The deep Sea-bed common heritage of mankind. The sea beyond the continental shelf. High seas Res commones Navigation Fishing Scientific research Mining Laying submarine cables or pipelines Other human activities in the open sea and ocean floor Freedom of navigation the right to sail ships on the seas which is open to all States and land-locked countries GR: vessels sailing on the high seas are subject only to international law and the laws of the flag state (Flag State State whose nationality the ship possesses, for its nationality which gives the right to fly a countrys flag) Exceptions: Foreign merchant ships violating the laws of coastal state Pirate ships Slave trade ships, any ship engaged in unauthorized broadcasting; and Ships without nationality, or flying a false flag or refusing to show its flag when required to do so Doctrine of hot pursuit - the pursuit of a foreign vessel undertaken by the coastal State which has good reason to believe that the ship has violated the laws and regulations of that State provided that the following elements are present:

Pursuit commences from an internal water, territorial sea, contiguous zone of the pursuing state, and may not be continued outside if the pursuit has not been interrupted It is continuous and unabated Pursuit conducted by a warship, military aircraft, or government ships authorized for the purpose Hot pursuit ceases as soon as the foreign ship being pursued enters the territorial sea of its own or that of a third state Low water mark mark on the water on the shore at low tide High water mark mark on the water on the shore at high tide Sovereignty over aerial domain Air space the airspace above the high seas is open to all aircraft just as high as is accessible to ships of all States The State whose aerial space is violated can take measures to protect itself, but it does not mean that the State has unlimited right to attack the intruding aircraft (intruding aircraft can be ordered either to leave the States airspace or to land) There is no such right of innocent passage in aerial domain Outer Space is res commones The space beyond airspace surrounding the earth or beyond the national airspace The moon and other celestial bodies form part of the outer space (moon Treaty of 1979). Thus, not subject to national appropriation Fee for all exploration and use by all States and cannot be annexed by any State Astronauts are considered as ambassadors of humankind under the theory that there are other beings in the outer space. Thus, every state has the liability to render assistance to an astronaut under distress JURISDICTION OF STATES Authority exercised by a state over persons and things within or sometimes outside its territory, subject to certain exceptions Bases of jurisdiction: Territorial principle jurisdiction of the state over all persons, property, transactions and occurrence within its territory Nationality principle a state may punish offenses committed by its nationals anywhere in the world protective principle a state may punish crimes committed abroad prejudicial to national security and vital interest universality principle extraterritorial jurisdiction of states regardless of where they are committed or who committed it Exemptions from Jurisdiction: Doctrine of State Immunity Act of State Doctrine court of one state will not sit in judgment over acts of the government of another state done in its territory Diplomatic Immunity Immunity of specialized agencies, other international organizations, and its officers Foreign merchant vessel exercising the right of innocent passage Foreign armies passing through or stationed in the territory with the permission of the state Warship

Arrival under stress - involuntary entrance; it may be due to lack of provisions, unseaworthiness of the vessel, inclement weather, or other case of force majeure, such as pursuit of pirates

EXTRADITION The right of a foreign power, created by treaty, to demand the surrender of one accused or convicted of a crime within its territorial jurisdiction, and the correlative duty of the other state to surrender him to the demanding state The legal duty to extradite a fugitive from justice is based only on treaty stipulations Extradition proceedings are not criminal in nature. In criminal proceedings, the constitutional rights of the accused are at fore; in extradition, which is sui generis- a class by itself - they are not. Fundamental principles governing extradition There is no legal obligation to surrender a fugitive unless there is a treaty Religious and political offenses are generally not extraditable Attentat clause a provision in an extradition treaty that stipulates that the murder of the head of a foreign government or the member of his family should not be considered as a political offense c. a person extradited can be prosecuted by the requesting state only for the crime for which he was extradited (Principle of Specialty); and unless provided for in a treaty, the crime for which a person is extradited must have been committed in the territory of the requesting state double criminality act for which the extradition is sought must be punishable in both States Extradition cases are within the jurisdiction of the REGIONAL TRIAL COURT EXTRADITION PROCEEDING 1. does not involve determination of guilt 2. summary in nature CRIMINAL PROCEEDING 1. involves determination of guilt 2. adversarial in nature which require a full blown 3. strict interpretation of rules on evidence applies 4. the court has the final say

3. liberal interpretation applies 4. the court may declare a person extraditable but the president has the last say 5. presumption of innocence is not applicable

5. presumption of innocence is applicable

Procedure for Extradition request through diplomatic representative with: decision of conviction criminal charge and warrant of arrest recital of facts text of applicable law designating the offense pertinent papers DFA forwards request to DOJ DOJ files petition for extradition with RTC upon receipt of a petition for extradition and its supporting documents, the judge must study them and

make, as soon as possible, a prima facie finding whether they are sufficient in form and substance they are in compliance with the Extradition Treaty and Law the person sought is extraditable At his discretion, the judge may require the submission of further documentation. He may personally examine the affiants and witnesses of the petitioner in state of this study and examination, no prima facie finding is possible, the petition may be dismissed at the discretion of the judge On the other hand, if the presence of a prima facie case is determined, then the magistrate must immediately issue a warrant for the arrest of the extraditee, who is at the same time summoned to answer the petition and to appear at the scheduled summary hearings. An extraditee has no right to notice and hearing during the evaluation stage of the extradition processthe time for the extradite to know the basis of the request for his extradition is merely moved to the filing in court of the formal petition for extradition. The extraditees right to know is momentarily withheld during the evaluation stage of the extradition process to accommodate the more compelling interest of the State to prevent escape of potential extraditees which can be precipitated by premature information on the basis of the request for his extradition. (US vs Purganan, 389 SCRA 623) Hearing (provide counsel de officio if necessary) Appeal to CA within 10 days whose decision shall be final and executory Decision forwarded to DFA through the DOJ Individual placed at the disposal of the authorities of requesting state costs and expenses to be shouldered by requesting state A state may not compel another state to extradite a criminal without going through the legal processes provided in the laws of the former Due process requirement complied at the RTC level upon filing of petition for extradition. No need to notify the person subject of the extradition process when the application is still with the DFA or DOJ. Extradition is not a criminal proceeding which will call into operation all the rights of an accused provided in the Bill of Rights For the provision arrest of an accused to continue, the formal request for extradition is not required to be filed in court it only needs to be received by the requested state in accordance with PD 1069. A respondent in an extradition proceeding is not entitled to notice and hearing before the issuance of warrant of arrest. Sec 6 of PD 1069, our Extradition Law uses the word immediate. If bail can be granted in deportation cases, we see no justification why it should not also be allowed in extradition cases. While extradition is not a criminal proceeding, it is characterized by the following: (a) it entails a deprivation of liberty on the part of the potential extraditee and (b) the means employed to attain the purpose of extradition is also the machinery of criminal law. The potential extraditee should prove by clear and convincing evidence that he is not a flight risk and will abide with all the orders and processes of the extradition court before his motion for bail can be granted. (Govt. of Hong Kong Special Administrative Region vs Olalia, G.R. No. 153675, April 19, 2007)

clear and convincing evidence lower than proof beyond reasonable doubt but higher than preponderance of evidence RIGHT OF LEGATION It is the right to send and receive diplomatic missions. It is governed by the Vienna Convention on Diplomatic Relations (1961) Agents of Diplomatic Intercourse: head of state; foreign secretary or minister; or members of diplomatic service Functions of Diplomatic Missions: 1. Representing sending state in receiving state; 2. Protecting in receiving state interests of sending state and its nationals; 3. Negotiating with government of receiving state 4. Promoting friendly relations between sending and receiving states and developing their economic, cultural and scientific relations 5. Ascertaining by all lawful means conditions and developments in receiving state and reporting thereon to government of sending state; Agreation process of appointment of diplomatic envoy consisting of two acts: inquiry, usually informal, addressed by the sending State to the receiving State regarding the acceptability of an individual to be its chief of mission; and agrement - also usually informal, by which the receiving State indicates to the sending state that such person would be acceptable Letters of credence document by which the envoy is accredited to the foreign state to which he is being sent designating his rank and the general object of his mission, and asking that he be received favorably and that full credence be given to what he says on behalf of his State. Privileges and Immunities Personal inviolability Inviolability of premises and archives Right of official communications Exemption from local jurisdiction Exemption from subpoena; and Exemption from taxation or custom duties; Other privileges Freedom of movement and travel in its territory Exemption from all personal services and military obligations Use of flag and emblem of the sending state on the diplomatic premises and the residence and means of transport of the head of mission Members of the administrative and technical staff of the mission, if they are not nationals of or permanently residing in the receiving state, are accorded the privileges and immunities of diplomatic agents, with the exception of customs exemptions and immunity from civil and administrative jurisdiction of the receiving State for acts performed outside the course of their duties Waiver of Immunities Diplomatic privileges can be waived, but the waiver cannot be made by the individual concerned since such immunities are not personal to him Waiver may be made only by the government of the sending state if it concerns the immunities of the

head of mission In other cases, the waiver may be made either by the government or by the chief of mission Termination of Diplomatic Mission Death Resignation Removal Extinction of the state War between the receiving and sending states Abolition of office Recall Dismissal Consuls state agents residing abroad for various purposes but mainly in the interest of commerce and navigation they are not clothed with diplomatic character and are not accredited to the government of the country where they exercise their consular functions; they deal directly with the local authorities Kinds of Consuls 1. consules missi ( consuls of career ) professional or career consuls who are nationals of the sending state and are required to devote their full-time to discharge their duties; and 2. consules electi (honorary consuls) may or may not be nationals of the sending state and perform consular functions only in addition to their regular callings Letter patent (letter de provision) evidence of the appointment of a consul issued by the appointing authority of the sending state. Exequatur the authorization given to the consul by the sovereign of the receiving state, allowing him to exercise his function within the territory Consular Functions: 1. Protection of the interests of the sending state and its national in the receiving state 2. Promotion of the commercial, economic, cultural and scientific relations of the sending and receiving states 3. Observation of conditions and developments in the receiving state and report thereof to the sending state 4. Issuance of passports and other travel documents to nationals of the sending state and visas or appropriate documents to persons wishing to travel to the sending state 5. Supervision and inspection of vessels and aircraft of the sending State Immunities and Privileges Inviolability of their correspondence, archives and other documents Freedom of movement and travel Immunity from jurisdiction for acts performed in official capacity Exemption from certain taxes and customs duties TREATY An international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation. Requisites: Entered into by parties having treaty-making capacity Through their authorized organs or representatives Without attendance of duress, fraud, mistake, or other vices of consent Lawful subject matter and object Ratification in accordance with their respective constitutional processes Steps in Treaty-Making process:

Negotiation parties reach an agreement on its terms Signature primarily intended as a means of authenticating the instrument and for the purpose of symbolizing the good faith of the parties Ratification formal act by which a state confirms and accepts the provisions of a treaty concluded by its representatives Exchange of instruments of ratification; and Registration with UN Oral agreements between States are recognized as treaties under customary international law (but are extremely rare nowadays). Doctrine of Unequal Treaties Treaties which have been imposed through coercion or duress by a State of unequal character are void Accession Also known as adhesion, this is the process by which a non-signatory state becomes a party to a treaty Reservation A unilateral statement, made by a state when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or modify the legal effect of certain provisions of the treaty in their application to the state The state making the reservation remains a party to a treaty, provided that the reservation is compatible with the object and purpose of the treaty Jus cogens Customary international law that has attained the status of a peremptory norm, accepted and recognized by the international community of states as a rule from which no derogation is permitted and can be modified only by a subsequent norm having the same character. E.G. customs out-lawing slave trade, genocide, terrorism, etc Concordat A treaty or agreement between ecclesiastical and civil powers to regulate the relations between the church and the state in those matters which, in some respect are under the jurisdiction of both Pacta sunt servanda Every treaty in force is binding upon the parties to it and must be performed by them in good faith (Art. 26, Vienna Convention on the Law of Treaties) Most Favored Nation Clause Pledge made by a contracting party to a treaty to grant to the other party treatment not less favorable than that which had been given or may be granted to the most favored among parties Unconditional any advantage of whatever kind which has been or may in future be granted by either of the contracting parties to a third State shall simultaneously and unconditionally be extended to the other under the same or equivalent conditions as those under which it has been granted to the third State Conditional Rebus Sic Stantibus Legal principle which would justify non-performance of treaty obligations where an unforeseen or substantial changes occur which would render one of the parties thereto unable to undertake treaty obligations as stipulated therein Requisites The change must be so substantial that the foundation of the treaty must have altogether disappeared The change must have been unforeseen or unforeseeable at the time of the perfection of the treaty The change must not have been caused by the party invoking the doctrine The doctrine must be invoked within a reasonable time The duration of the treaty must be indefinite, and

The doctrine cannot operate retroactively, i.e., it must not adversely affect provisions which have already been complied with prior to the vital change in the situation Termination of treaty expiration of term accomplishment of the purpose supervening impossibility of performance loss of subject matter desistance of parties extinction of one of the parties to the treaty (bipartite treaties only) novation occurrence of vital change of circumstance outbreak of war voidance of treaty conclusion of a subsequent inconsistent treaty between the same parties violation of the treaty by one of the parties doctrine of rebus sic stantibus severance of diplomatic or consular relations emergence of a new peremptory norm of general international law Protocol de cloture An instrument which records the winding up of the proceedings of a diplomatic conference and usually includes a reproduction of the texts of treaties, conventions, recommendations and other acts agreed upon and signed by the plenipotentiaries attending the conference. It is not the treaty itself and does not require the concurrence of the Senate (Tanada vs. Angara, 272 SCRA 18) TREATY basic political issues; changes of national policies permanent international Agreements Subject to ratification by 2/3 of the Senate EXECUTIVE AGREEMENT adjustment of details carrying out established national policies temporary arrangements

Do not need to be ratified by the Senate NATIONALITY AND STATELESSNESS Doctrine of Effective Nationality a person having more than one nationality shall be treated as if he had only one either the nationality of the country in which he is habitually and principally resident or the nationality of the country with which in the circumstances he appears to be in fact most closely connected (Frivaldo v. COMELEC, 174 SCRA 245) Statelessness condition or status of an individual who is born without any nationality or who loses his nationality without retaining or acquiring another Consequence of Stateless any wrong suffered by him through the act or omission of a state would be damnum absque injuria for in theory no state has been offended and no international delict committed Treatment of Stateless Individual

international conventions provide that stateless individuals are to be treated more or less like the subjects of a foreign state Reintegration recovery of nationality by individuals who are natural born citizens of a state TREATMENT OF ALIENS Flowing from its right to existence and as an attribute of sovereignty, no State is under obligation to admit aliens. The State can determine in what cases and under what conditions it may admit aliens Deportation Expulsion of an alien considered undesirable by local state, usually but not necessarily to his own state Reconduction Forcible conveying of aliens back to their home state without any formalities Doctrine of State Responsibility State may be held liable for injuries and damages sustained by the alien while in the territory of the state provided: The act or omission constitutes an international delinquency The act or omission is directly or indirectly imputable to the state; and The injury to the claimant state indirectly because of damage to its national A state is under obligation to make reparation to another state for the failure to fulfill its primary obligation to afford, in accordance with international law, the proper protection due to an alien who is a national of the latter State Conditions required for the enforcement of the Doctrine of State Responsibility the injured alien must exhaust all local remedies he must have presented in the international court for damages by his own state Individual should be a national from the time of the injury to the recovery of the claim The right of protection arises only when there is a genuine link between the claimant state and the individual Measure of damages Injury suffered by the claimant state and not the injury suffered by its own national Doctrine of indelible allegiance An individual may be compelled to retain his original nationality notwithstanding that he has already renounced/forfeited it under the laws of a second state whose nationality he has acquired Direct State Responsibility Where the international delinquency was committed by superior government individuals or organs like the chief of state or the national legislature, liability will attach immediately as their acts may not be effectively prevented or reversed under the constitution or laws of the statute Indirect State Responsibility Where the offense is committed by inferior government officials or by private individuals, the state will be held liable only if , by reason of its indifference in preventing or punishing it, it can be considered to have connived in effecting its commission International Standard of Justice An alien living in a foreign country is entitled under international law to a certain standard of treatment. If the conduct or behavior of a State towards an alien living within its territory falls below the minimum international standard, the State violates international law and incurs international responsibility. The treatment of an alien, in order to constitute an international delinquency, should amount to an outrage, to bad faith, to willful neglect of duty or to an insufficiency of governmental action so far short of international standards that every reasonable and impartial man would readily recognize its insufficiency.

Calvo clause Stipulation frequently inserted in contracts where nationals of another state renounce any claim upon his national state for protection but such waiver can be legally made only by aliens state Deportation The removal of an alien out of the country, simply because 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 - denial of entry to an alien Refugees Requisites: those who are outside the country of his nationality or if stateless, outside the country of his habitual residence; lacks national protection; and fears persecution Non-refoulement Prohibits a state to return or expel a refugee to the territory where he escaped because his life or freedom is threatened. The state is under obligation to grant temporary asylum Diplomatic Asylum refuge in diplomatic premises Political Asylum Refuge in another state for political offense, danger to life or no assurance of due process INTERNATIONAL DISPUTE Actual disagreement between states regarding the conduct to be taken by one of them for the protection or vindication of the interest of the other Art 33 of the UN Charter provides that the parties to any dispute shall first seek a solution through pacific or amicable methods Classes of disputes legal if it involves justiciable rights based on law and fact political if it cannot be decided by an international arbitral or judicial tribunal under the rules of international law Intervention Act by which state interferes with domestic or foreign affairs of another state through the use of force or threat of force When intervention is sanctioned: as an act of self-defense when decreed by the Security Council as a preventive or enforcement action for the maintenance of international peace and security when such action is agreed upon in a treaty; or when requested from fellow states of from the United Nations by the parties to a dispute or a state beset by rebellion Drago Doctrine Intervention not allowed for the purpose of making the state pay its public debts

Peaceful Settlement of Disputes Between States Diplomatic methods of dispute settlement Negotiations Legal and orderly administrative process by which governments, in the exercise of their unquestionable powers, conduct their relations with one another and discuss, adjust and settle their differences Good offices A third party attempts to bring the disputing states together in order to enable them to discuss the issues in contention and arrive at an agreement Mediation A third party does not merely provide the opportunity for the antagonists to negotiate but also actively participates in their discussions in order to reconcile their conflicting claims and appease their feelings of resentment Fact-finding and inquiry Establishment of facts involved in a dispute and the clarification of the issues in order that their elucidation might contribute to its settlement Conciliation Process of settling disputes by referring them to commissions or other international bodies, usually consisting of persons designated by agreement between the parties to the conflict whose task is to elucidate the facts and make a report containing proposals, for a settlement, which however, have no binding character Reference to regional organizations reference to UN Security Council

Legal Methods of dispute settlement Adjudication The International Court of Justice Arbitration Solution of a dispute by an impartial third party, usually a tribunal created by the parties themselves under a charter known as the compromis, which will provide for, among others, the composition of the body and the manner of the selection of its members, its rules of proceedings and sometimes even the law to be applied by it, and the issues of fact or law to be resolved Unlike conciliation, the proceedings are essentially judicial and the award is binding on the parties to the dispute Forcible Measures Short of War Severance of diplomatic relations Withdrawal of diplomatic representation, but not the severance of consular relations Retorsions Consists of an unfriendly, but not internationally illegal act of one State against another in retaliation for the latters unfriendly or inequitable conduct. It is resorted to by States usually in cases of unfair treatment of their citizens abroad Reprisals Any kind of forcible or coercive measures whereby one State seeks to exercise a deterrent effect or to obtain redress or satisfaction, directly or indirectly, for the consequences of the illegal acts of another State, which has refused to make amends for such illegal conduct Embargo Forcible detention of the vessels of the offending state or of its nationals which happened to be lying in the ports of the injured or aggrieved State or were seized in the high seas, or even within the territorial waters of the offending State Non-intercourse Consists of the suspension of all commercial intercourse with a State Boycott Modern form of reprisal which consists of a concerted suspension of trade and business relations with the

nationals of the offending State Pacific blockade Naval operation carried out in time of peace whereby a State prevents access to or exit from particular ports or portions of the coast of another State for the purpose of compelling the latter to yield to certain demands made upon it by the blockading State How disputes are brought to the Security Council By a member of the UN, whether or not it is a party to the dispute By a state which is not a member of the UN, provided that it is a party to the dispute and accepts in advance, for the purposes of the disputes, the obligations of pacific settlement provided in the charter By the General Assembly, which may call the attention of the Security Council to situations which are likely to endanger international peace and security By the Secretary General, who may bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security However, a state, the General Assembly or the Sec-Gen can only request the Security Council to consider a dispute; it is for the Security Council to decide whether to accede to that request by placing the dispute on its agenda. THE USE OF FORCE IN INTERNATIONAL RELATIONS War Sustained struggle by armed forces of a certain intensity between groups of certain size, consisting of individuals who are armed, who wear distinctive insignia and who are subjected to military discipline under responsible command Article 2 (4) of the United Nations Charter All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the UN Circumstances when the use of force allowed In case of individual or collective self-defense Permitted only while the Security Council has not taken the necessary measures to maintain or restore international peace and security In pursuance of a decision or recommendation of the Security Council to take forcible action against an aggressor Limitations on the exercise of the right of self-defense be in response to an armed attack meet immediacy requirement be of necessity meet the proportionality requirement Collective Self-Defense One state may not defend another state unless that other state claims to be (and is) the victim of an armed attack and asks the first state to defend it Commencement of war with the declaration of war with the rejection of an ultimatum with the commission of an act of force regarded by at least one of the parties as an act of war Effects of the Outbreak of War The laws of peace cease to regulate the relations of the belligerents and are superseded by the laws of war Diplomatic and consular relations between the belligerents are terminated, and their respective

representatives are allowed to return to their own countries Treaties of political nature, such as treaties of alliance, are automatically cancelled, but those which are precisely intended to operate during war, such as one regulating the conduct of hostilities, are activated Enemy public property found in the territory of other belligerent at the outbreak of the hostilities is, with certain exceptions, subject to confiscation. Enemy private property may be sequestered, subject to return or reimbursement after the war in accordance with the treaty of peace Basic Principles of War Principle of Military necessity Belligerents may employ any amount and kind of force to compel the complete submission of the enemy with the least possible loss of lives, time and money Principle of Humanity Prohibits the use of any measure that is not absolutely necessary for purposes of war; and Principle of Chivalry Basis of such rules as those that require belligerents to give proper warning before launching a bombardment or prohibit the use of perfidy (treachery) in the conduct of hostilities Rights of a Prisoner of War to be treated humanely not subject to torture allowed to communicate with his family receive food, clothing, religious article, medicine bare minimum of information keep personal belongings proper burial group according to nationality establishment of an information bureau repatriation for the sick and wounded (1949 Geneva Convention) Termination of War simple cessation of hostilities conclusion of a negotiated treaty of peace defeat of one belligerents BUSH doctrine Refers to the set of revised foreign policies adopted by the President of the United States George W. Bush in the wake of the September 11, 2001 terrorist attacks.

Salient elements: Preemption a policy of pre-emptive war, should the US or its allies be threatened by terrorists or by rogue states that are engaged in the production of weapons of mass destruction Unilateralism the right of the US to pursue unilateral military action when acceptable multi-lateral solutions cannot be found Strength beyond challenge US intends to take actions as necessary to continue its status as the worlds sole military superpower Extending democracy, liberty and security to all regions NEUTRALITY Condition of state that does not take part directly or indirectly, in war between other states Duties of Neutral States

to abstain from taking part in the hostilities and from giving assistance to either belligerent to prevent its territory from being used by the belligerents in the conduct of hostilities to acquiesce in certain restrictions and limitations that the belligerents may find necessary to impose, especially in connection with international commerce Duties of Belligerents to respect the status of the neutral state to avoid any act that will directly or indirectly involve it in their conflict and submitting to any lawful measure it may take to maintain or protect its neutrality Right of Angary Right of a belligerent to requisition and use, subject to certain conditions, or even to destroy in case of necessity, neutral property found in its territory. This right does not derive from the law of neutrality but from the law of war 3 conditions There must be an urgent need for the property in connection with the war The property is within the territory or jurisdiction of the belligerent Compensation must be paid to its owner

NEUTRALITY dependent on attitude of neutral state, which is free to join either of belligerents any time it sees fit governed by laws of nation

NEUTRALIZATIO N result of treaty wherein duration and other conditions are agreed upon by neutralized state and other states governed by neutralization agreement intended to operate in times of peace and war

obtains only during war

INTERNATIONAL CRIMINAL COURT The first ever permanent, treaty based, international criminal court established to promote the rule of law and ensure that the gravest international crimes do not go unpunished Seat: The Hague, Netherlands Crimes cognizable The crime of genocide Crimes against humanity War crimes

The crime of aggression