A. The Philippine Constitution

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A. The Philippine Constitution

1. Constitution: Definition, Nature and Concepts

The document which serves as the fundamental law of the state.1 That written instrument enacted by direct action of the people by which the fundamental powers of the government are established, limited and defined, and by which those powers are distributed among the several departments for their safe and useful exercise for the benefit of the body politic.2

2. Parts Constitution of Liberty

The series of prescriptions setting forth the fundamental civil and political rights of the citizens and imposing limitations on the powers of government as a means of securing the enjoyment of those rights.3

Constitution of Government

The series of provisions outlining the organization of the government, enumerating its powers, laying down certain rules relative to its administration, and defining the electorate.4

Constitution of Sovereignty

The provisions pointing out the mode or procedure in accordance with which formal changes in the fundamental law may be brought about.5

1 V. Sinco, Philippine Political Law, 11th ed., p.68-‐70 2 Malcolm, Philippine Constitutional Law, p.6. 3 Art. III 4 Arts. VI, VII, VIII, IX 5 Art. XVII

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3. Amendments and Revisions Amendment

Isolated or piece-meal change only.6

Revision

A revamp or rewriting of the whole instrument.7

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

Self-executing provision

One which is complete in itself and becomes operative without the aid of supplementary or enabling legislation, or that which supplies a sufficient rule by means of which the right it grants may be enjoyed or protected.

Non-Self-Executing Provision

One which lays down a general principle

6 Required Steps In The Amendatory Process A. Proposal. It may come from: 1. Congress, by a vote of ¾ of all its members. The choice of method of method of proposal, i.e., whether made directly by Congress or through a Constitutional Convention, is within the full discretion of the legislature. (Occena vs. COMELEC, 104 SCRA 1) 2.Constitutional Convention, which may be called into existence either by a 2/3 vote of all the members of Congress, or, if such vote is not obtained, by a majority vote of all the members of Congress with the question of whether or not to call a Convention to be resolved by the people in a plebiscite 3. People, through the power of initiative. Through the “initiative” phase, the people propose the amendments. There is a valid proposal when a proposition has received the approval of at least 3% of the registered voters of each district and 12% of the total number of registered voters nationwide. This is followed by the “referendum” phase where the people vote to reject or ratify the proposal. B. Ratification Both amendment and revision signify change in the constitutional text. An amendment envisages of one or a few specific and isolated provisions of the Constitution. Its guiding original intention is to improve specific parts or to add new provisions or to suppress existing ones accordingly as addition or subtraction might be demanded by existing conditions. 7 In revision, the guiding intention and plan contemplate a re-‐examination of the entire document or an important cluster of provisions in the document to determine how and to what extent it should be altered. The end product of a revision can be an important structural change in the government or a change which affects several provisions of the Constitution. A revision of the Constitution cannot be effected through initiative and referendum. The change authorized by Art. XVII, Sec. 2 through initiative and referendum can only be amendment. The main reason is that formulation of provisions revising the Constitution requires both cooperation and debate which can only be done through a collegial body.

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5. General Provisions8

The flag of the Philippines shall be red, white, and blue, with a sun and three stars, as consecrated and honored by the people and recognized by law.9

The Congress may, by law, adopt a new name for the country, a national anthem, or a national seal, which shall all be truly reflective and symbolic of the ideals, history, and traditions of the people. Such law shall take effect only upon its ratification by the people in a national referendum.10

The State may not be sued without its consent.11

The Armed Forces of the Philippines shall be composed of a citizen armed force which shall undergo military training and serve as may be provided by law. It shall keep a regular force necessary for the security of the State.12 All members of the armed forces shall take an oath or affirmation to uphold and defend this Constitution. The State shall strengthen the patriotic spirit and nationalist consciousness of the military, and respect for people's rights in the performance of their duty. Professionalism in the armed forces and adequate remuneration and benefits of its members shall be a prime concern of the State. The armed forces shall be insulated from partisan politics. No member of the military shall engage, directly or indirectly, in any partisan political activity, except to vote. No member of the armed forces in the active service shall, at any time, be appointed or designated in any capacity to a civilian position in the Government, including government-owned or controlled corporations or any of their subsidiaries. Laws on retirement of military officers shall not allow extension of their service.

The officers and men of the regular force of the armed forces shall be recruited proportionately from all provinces and cities as far as practicable. The tour of duty of the Chief of Staff of the armed forces shall not exceed three years. However, in times of war or other national emergency declared by the Congress, the President may extend such tour of duty.13

The State shall establish and maintain one police force, which shall be national in scope and civilian in character, to be administered and controlled by a national police commission. The authority of local executives over the police units in their jurisdiction shall be provided by law.14 8 Art. X 9 Sec. 1 10 Sec. 2 11 Sec. 3 12 Sec. 4 13 Sec. 5 14 Sec. 6

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The State shall provide immediate and adequate care, benefits, and other forms of assistance to war veterans and veterans of military campaigns, their surviving spouses and orphans. Funds shall be provided therefor and due consideration shall be given them in the disposition of agricultural lands of the public domain and, in appropriate cases, in the utilization of natural resources.15

The State shall, from time to time, review to increase the pensions and other benefits due to retirees of both the government and the private sectors.16

The State shall protect consumers from trade malpractices and from substandard or hazardous products.17

The State shall provide the policy environment for the full development of Filipino capability and the emergence of communication structures suitable to the needs and aspirations of the nation and the balanced flow of information into, out of, and across the country, in accordance with a policy that respects the freedom of speech and of the press.18

The ownership and management of mass media shall be limited to citizens of the Philippines, or to corporations, cooperatives or associations, wholly-owned and managed by such citizens. The Congress shall regulate or prohibit monopolies in commercial mass media when the public interest so requires. No combinations in restraint of trade or unfair competition therein shall be allowed. The advertising industry is impressed with public interest, and shall be regulated by law for the protection of consumers and the promotion of the general welfare. Only Filipino citizens or corporations or associations at least seventy per centum of the capital of which is owned by such citizens shall be allowed to engage in the advertising industry. The participation of foreign investors in the governing body of entities in such industry shall be limited to their proportionate share in the capital thereof, and all the executive and managing officers of such entities must be citizens of the Philippines.19

The Congress may create a consultative body to advise the President on policies affecting indigenous cultural communities, the majority of the members of which shall come from such communities.20

15 Sec. 7 16 Sec. 8 17 Sec. 9 18 Sec. 10 19 Sec. 11 20 Sec. 12

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B. General Considerations

1. National Territory21 a. Archipelagic Doctrine

It is defined as “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.”22

It emphasizes the unity of the land and waters by defining an archipelago as group of islands surrounded by waters or a body of waters studded with islands.

2. State Immunity23

The general rule is that a state may not be sued without its consent. While the doctrine appears to prohibit only suits against the state without its consent, it is also applicable to complaints filed against officials of the state for acts allegedly performed by them in the discharge of their duties. The rule is that if the judgment against such officials will require the state itself to perform an affirmative act to satisfy the same, such as the appropriation of the amount needed to pay the damages awarded against them, the suit must be regarded as against the state itself, although it has not been formally impleaded.

It is a different matter where the public official is made to account in his capacity as such

for acts contrary to law and injurious to the rights of plaintiff. Inasmuch as the State authorizes only legal acts by its officers, unauthorized acts of govt. officials or officers are not acts of the State, and an action against the officials or officers by one whose rights have been invaded or violated by such acts, for the protection of his rights, is not a suit against the State within the rule of immunity of the State from suit. The doctrine of state immunity cannot be used as an instrument for perpetrating an injustice.

The cloak of immunity is removed from the moment the public official is sued in his

individual capacity such as where he acts without authority or in excess of the powers vested in him. A public official may be liable in his personal capacity for whatever damage he may have caused by his act done with malice and in bad faith, or beyond the scope of his authority or jurisdiction. In this case, the officers are liable for damages.

21 Art. I 22 Art. I, Sec.1, 2nd sen. 23 The doctrine is also available to foreign States insofar as they are sought to be sued in the courts of the local State. The added basis in this case is the principle of the sovereign equality of States, under w/c one State cannot assert jurisdiction over another in violation of the maxim par in parem non habet imperium. To do so would "unduly vex the peace of nations." (Cruz.) The consent to be sued, in order to be effective, must come from the State, acting through a duly enacted statute. Waiver of state immunity can only be made by an act of legislative body.

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3. General Principles and State Policies24

General Principles25

The Philippines is a democratic and republican State26. Sovereignty resides in the people and all government authority emanates from them.27

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.28

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.29

24 Art. II 25 Binding rules which must be observed in the conduct of the government (Tanada vs. Angara, see Vicente Sinco, Phil. Political Law 116 (11th ed. 1962) 26 Manifestations of a Republican State:

A. Ours is a government of laws and not of men. Its essence is that all persons, from the highest official of the land down to the lowest level of the citizenry, must respect the laws, and nobody, how great and painful might he have suffered in the hands of his persecutors or oppressors, must resort to the rule of law rather than taking the law into his hands. It is a weapon of reason and civility.

The SC castigated a Mayor for expelling alleged prostitutes from Manila and dumped them against their will in Davao. The Court said that such act constitutes a wanton violation of the principle that “ours is a government of laws and not of men.” (Villavicencio vs. Lukban, 39 Phil. 778, March 25, 1919) B. Rule of the majority (Plurality in elections) C. Accountability of public officials D. Bill of rights 27 Sec. 1 28 Sec. 2 Doctrine of Incorporation The courts have applied the rules of international law in a number of cases even if such rules had not previously been subject of statutory enactments, because these generally accepted principles of international law are automatically part of our own laws. The doctrine of incorporation, as applied in most countries, decrees that rules of international law are given equal standing with, but are not subject to, national legislative enactments. Accordingly, the principle of lex posterior derogat priori takes effect. In states where the constitution is the highest law of the land, such as the Philippines, both statutes and treaties may be invalidated if they are in conflict with the constitution. (Secretary of Justice v. Lantion, G.R. No. 139465, January 18, 2000) 29 Sec. 3 Ensured by:

1. the installation of the President, the highest civilian authority as the commander-‐in-‐chief of the military [Sec. 18, Art. VII];

2. the requirement that the members of the AFP swear to uphold and defend the Constitution, which is the fundamental law of the civil government;

3. the professionalization of the service and the strengthening of the patriotism and nationalism, and respect for human rights, of the military;

4. insulation of the AFP from partisan politics; 5. prohibition against appointment to a civil position; 6. compulsory retirement of officers, so as to avoid propagation of power; 7. a 3-‐year limitation on the tour of duty of the Chief of Staff, which although extendible in case of

emergency by the President, depends on Congressional declaration of emergency;

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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 the fulfillment thereof, all citizens may be required, under conditions provided by law, to render personal, military or civil service.30

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.31

The separation of Church and State shall be inviolable.32

State Policies33 The Sate shall pursue an independent foreign policy, in its relations with other states the

paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to self-determination.34

The Philippines, consistent with the national interest, adopts and pursues a policy of freedom from nuclear weapons in its territory.35

The State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies that provide

8. requirement of professional recruitment, so as to avoid any regional clique from forming within

the AFP [Sec. 5, Art. XVI]; and 9. the establishment of a police force that is not only civilian in character but also under the local

executives [Sec. 6, Art. XVI]. 30 Sec. 4 31 Sec. 5 32 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]; and 6. Religious denominations and sects cannot be registered as political parties [Sec. 2 (5) Art. IX-‐C].

Exceptions: 1. Churches, personages, etc., actually, directly and exclusively used for religious, charitable and

educational purposes shall be exempt from taxation [Sec. 28 (3), Art. VI]; 2. Prohibition against appropriation for sectarian purposes, except when, priest etc., is assigned to

the armed forces, or to any penal institution or government orphanage or leprosarium [Sec. 29 (2), Art. VI];

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].

33 Guidelines for the orientation of the state (see IV Record of the Constitutional Commission, 768 and 580) 34 Sec. 7 35 Sec. 8 Policy of freedom from nuclear weapons The Constitution prescribes a policy of freedom from nuclear weapons. The policy includes the prohibition not only of the possession, control, and manufacture of nuclear weapons but also nuclear arm tests. Exception to this policy may be made by the political department; but it must be justified by the demands of the national interest. But the policy does not prohibit the peaceful uses of nuclear energy.

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adequate social services, promote full employment, a rising standard of living, and an improved quality of life for all.36

The State shall promote social justice37 in all phases of national development.38

The State values the dignity of every human person and guarantees full respect for human rights.39

The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government.40

The State recognizes the vital role of the youth in nation-building and shall promote and protect their physical, moral, spiritual, intellectual, and social well-being. It shall inculcate in the youth patriotism and nationalism, and encourage their involvement in public and civic affairs.41

The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men.42

The State shall protect and promote the right to health of the people and instill health consciousness among them.43

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.44

The State shall give priority to education, science and technology, arts, culture, and sports to foster patriotism and nationalism, accelerate social progress, and promote total human liberation and development.45

The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare.46

36 Sec. 9 37 It simply means the equalization of economic, political and social opportunities with special emphasis on the duty of the State to tilt the balance of social forces by favoring the disadvantaged in life. 38 Sec. 10 39 Sec. 11 40 Sec. 12 41 Sec. 13 R.A. 7610, which penalizes child prostitution and other sexual abuses, was enacted in consonance with the policy of the State to provide special protection to children from all forms of abuse; thus, the Court grants the victim full vindication and protection granted under the law. (People v. Larin, G.R. No. 128777, October 7, 1998) 42 Sec. 14 43 Sec. 15 44 Sec. 16 This provision recognizes an enforceable right. 45 Sec. 17 The requirement that a school must first obtain governmental authorization before operating is based on the State policy that educational programs and/or operations shall be of good quality and, therefore, shall at least satisfy minimum standards with respect to curricula, teaching staff, physical plant and facilities and administrative and management viability. (Philippine Merchant Marine School, Inc. v. CA, 244 SCRA 770)

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The State shall develop a self-reliant and independent national economy effectively controlled by Filipinos.47

The State recognizes the indispensable role of the private sector, encourages private enterprise, and provides incentives to needed investments.48

The State shall promote comprehensive rural development and agrarian reform.49

The State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development.50

The State shall encourage non-governmental, community-based, or sectoral organizations that promote the welfare of the nation.51

The State recognizes the vital role of communication and information in nation-building.52

The State shall ensure the autonomy of local governments.53

The State shall guarantee equal access to opportunities for public service, and prohibit political dynasties as may be defined by law.54

The State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption.55

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.56

46 Sec. 18 47 Sec. 19 48 Sec. 20 49 Sec. 21 50 Sec. 22 51 Sec. 23 52 Sec. 24 53 Sec. 25 Decentralization of Administration -‐ delegation of administrative powers to local government unit in order to broaden the base of governmental powers. Decentralization of Powers – abdication of political power in the favor of local governments units declared to be autonomous. (Limbonas v. Mangelin, 170 SCRA 786) 54 Sec. 26 The purpose of this provision is to give substance to the desire for the equalization of political opportunities 55 Sec. 27 56 Sec. 28

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4. Separation of Powers57

Legislative power is given to the Legislature whose members hold office for a fixed term; executive power is given to a separate Executive who holds office for a fixed term; and judicial power is held by an independent Judiciary.

The principle of separation of powers is based on the conception that if the totality of

governmental powers were concentrated in one person or group of persons, the possibility of establishing a despotic and tyrannical regime capable of suppressing and suffocating the rights of the people becomes a tempting reality.

5. Checks and Balances

This allows one department to resist encroachments upon its prerogatives or to rectify mistakes or excesses committed by the other departments, e.g. veto power of the President as check on improvident legislation.

6. Delegation of Powers

General Rule: Potestas delegata non potest delegare - premised on the ethical principle that delegated power constitutes not only a

right but a duty to be performed by the delegate through the instrumentality of his own judgment and not through the intervening mind of another.

Exceptions:58

1. Tariff powers of the President59

2. Emergency powers of President60

3. Delegation to the people;61

4. Delegation to Local Government units;62 and

5. Delegation to administrative bodies63.

57 Purpose: to prevent concentration of authority in one person or group of persons that might lead to irreparable error or abuse in exercise to the detriment of republican institutions. (Pangasinan Transportation Co. v. Public Service Commission, G.R. No. 47065. June 26, 1940) The SC nullified the veto exercised by the President adjusting the pension of Justices of the SC and the CA asserting in very strong terms that such an act palpably violates the doctrine of separation of powers. The challenged veto has far-‐reaching implications which the Court cannot countenance as they undermine the principle of separation of powers. The Executive has no authority to set aside and overrule a decision of the SC. (Bengzon vs. Drilon, 208 SCRA 133, April 15, 1992) 58 Permissible Delegation 59 Art. VI, Sec. 28 (2) 60 Art. VI, Sec. 23 (2) 61 Art. VI, Sec. 32, Art. X, Sec. 10, Art. XVII, Sec. 2; RA 6753 62 Art X; R.A. 7160 63 power of subordinate legislation

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7. Forms of Government Presidential

One in which the state, the sovereign, makes the executive independent of the legislature, both in tenure and prerogative, and furnishes him with sufficient power to prevent the legislature from trenching upon the sphere marked out by the State as executive independence and prerogative.64

Parliamentary

One in which the state confers upon the legislature the complete control of the administration of laws. Under this system, the Cabinet or Ministry is immediately and legally responsible to the legislature or one branch thereof, usually the more popular chamber, and mediately or politically responsible to the electorate, while the titular or nominal executive – the King or Chief of State- occupies a position of irresponsibility.65

Unitary or centralized

One in which the powers of government are vested in one supreme organ from which all local governing authorities derive their existence and powers. The Philippine government is an example of a unitary form of government.66

Federal

One in which the governmental powers are, by common sovereign, distributed between a central government and the local government, each being supreme within its own sphere.67

64 The principal identifying feature of a presidential form of government is embodied in the separation of powers doctrine. Each department of government exercises powers granted to it by the Constitution and may not control, interfere with or encroach upon the acts done within the constitutional competence of the others. However, the Constitution also gives each department certain powers by which it may definitely restrain the others from improvident action, thereby maintaining a system of checks and balances among them, thus, preserving the will of the sovereign expressed in the Constitution. 65 The essential characteristic of a parliamentary form of government is the fusion of the legislative and executive branches in parliament; the prime minister, who is the head of government, and the members of the cabinet, who are chosen from among the members of parliament and as such are accountable to the latter. Another feature is that the prime minister may be removed from office by a vote of loss of confidence by the parliament. There may be a head of state who may or may not be elected and who usually merely exercises ceremonial functions. 66 The essence of a unitary form of government is the fact that a single organization has been created by the sovereign people (the people) through their constitution, to which is left the task of providing for the territorial distribution of governmental powers with which it is invested. (Aruego and Laguio) 67 Id.

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C. Legislative Department68

1. Who May Exercise Legislative Power69 a. Congress

The power of the Congress to legislate is complete, full and plenary embracing all subjects and extends to all matters of general concern except as limited by the Constitution, either explicitly or impliedly, or, substantively or procedurally.

b. Regional/Local legislative power The power of a regional or local legislative body to make rules in the form of ordinances and resolutions of regional or local application that have the force and effect of law. c. People’s initiative on statutes

i. Initiative and Referendum

Initiative70 Referendum71

Power of the people to propose amendments to the Constitution or to propose and enact legislation through an election called for the purpose.

Power of the electorate to approve or reject legislation through an election called for that purpose.

d. The President under a martial law rule or in a revolutionary government

1. The President can:

a. Legislate; b. order the arrest of people who obstruct the war effort.

68 Art. VI 69 power to propose, enact, amend and repeal laws. 70 Classes of initiative: 1. Initiative on the Constitution – petition proposing amendments to the Constitution; 2. Initiative on Statutes – petition proposing to enact a national legislation; 3. Initiative on Local Legislation – petition proposing to enact a regional, provincial, city, municipality or barangay law, resolution or ordinance. 71 Classes of Referendum: 1. Referendum on Statutes – petition to approve or reject an act or law, or part thereof, passed by Congress; 2. Referendum on Local Laws – legal process whereby the registered voters of the local government units may approve, amend or reject any ordinance enacted by the sanggunian. (Sec. 126, RA 7160 or the LGC of 1991)

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2. The following cannot be done: a. suspend the operation of the Constitution. b. Supplant the functioning of the civil courts and the legislative assemblies; c. Confer jurisdiction upon military courts and agencies over civilians, where civil

courts are able to function.72 d. Automatically suspend the privilege of the writ of habeas corpus.73

2. Houses of Congress

a. Senate

Composed of 24 senators, elected at large by the qualified voters of the Philippines.

b. House of Representatives

Composed of not more than 250 members consisting of:

i. District Representatives – elected from legislative districts apportioned among

the provinces, cities and the Metropolitan Manila area; ii. Party-list Representatives – shall constitute 20% of the total number of

representatives, elected through a party-list system of registered national, regional and sectoral parties or organizations.74

(1) District Representatives and Questions of Apportionment

Representative districts are apportioned among provinces, cities and municipalities in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio.75

Each province, irrespective of population, is entitled to one representation; each city with a population of at least 250,000 is entitled to at least one representative.

Each district must be contiguous, compact and adjacent. Gerrymandering76 is not allowed.

Reapportionment within 3 years following return of every census.

72 Open Court Doctrine – civilians cannot be tried by military courts if the civil courts are open and functioning 73 Sec.18, par(4), Art. VII 74 The Party-‐list organization must represent the “marginalized and underprivileged” and the nominees themselves must comply with this qualitative requirement (Ang Bagong Bayani, et al. vs. Comelec G.R. No. 147589, June 26, 2001) 75 The underlying principle behind this rule for apportionment is the concept of equality of representation which is a basic principle of republicanism. One man’s vote should carry as much weight as the vote of every other man. 76 Formation of one legislative district out of separate territories for the purpose of favoring a candidate or a party (Bernas, Reviewer in Philippine Constitution, P. 186)

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(2) Party-List System

The party-list system is a mechanism of proportional representation in the election of representatives to the House of Representatives from national, regional and sectoral parties or organizations or coalitions thereof registered with the COMELEC.77

3. Legislative Privileges, Inhibitions and Disqualifications

A Senator or Member of the House of Representatives shall, in all offenses punishable by not more than six years imprisonment, be privileged from arrest78 while the Congress is in session. No Member shall be questioned nor be held liable in any other place for any speech or debate in the Congress79 or in any committee thereof.

All Members of the Senate and the House of Representatives shall, upon assumption of office, make a full disclosure of their financial and business interests. They shall notify the House concerned of a potential conflict of interest that may arise from the filing of a proposed legislation of which they are authors.80

No Senator or Member of the House of Representatives may hold any other office or employment in the Government, or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries, during his term without forfeiting his seat. Neither shall he be appointed to any office which may have been created or the emoluments thereof increased during the term for which he was elected.81

77 The Court held that the intent of the Constitutional Commission and the implementing statute, RA 7941, was not to allow all associations to participate indiscriminately in the party-‐list system but to limit participation to parties or organizations representing the “marginalized and underprivileged.” 78 Congress must be in session, whether regular or special. It does not matter where the member of Congress may be found (attending the session, socializing in a private party, or sleeping at home); so long as Congress is in session, freedom from arrest holds; The crime for which the member is to be arrested is punishable by 6 years of imprisonment or less. "Punishable" refers to the maximum possible penalty which a penal statute attaches to the offense. It follows too that if the crime is punishable by 6 years and 1 day of prision mayor or more, the member can be arrested, even if he is session in the halls of Congress. “Speech or debate” includes utterances made in the performance of official functions, such as speeches delivered, statements made, votes cast, as well as bills introduced and other acts done in the performance of official duties. (Jimenez vs. Cabangbang, 17 SCRA 876) To come under the privilege, it is not essential that the Congress be in session when the utterance is made. What is essential is that the utterance must constitute “legislative action,” that is, it must be part of the deliberative and communicative process by which legislators participate in committee or congressional proceedings in the consideration of proposed legislation or of other matters which the Constitution has placed within the jurisdiction of the Congress. 79This privilege protects the member concerned from any libel suit that may be filed against him for a speech made "in" the halls of Congress or in any of its committees. Speech is not confined to traditional speech but even to the casting of votes, the making of reports, a debate or discussion, even communicative actions, and any other form of expression. The speech, however, must be made "in" Congress in the discharge of legislative duty. Thus, 80 Sec. 12 81 Sec. 13 An incompatible office is a post which a member cannot accept unless he waives or forfeits his seat in Congress. A sensu contrario, if he waives or forfeits his seat, he may accept the other post, since the incompatibility arises only because of his simultaneous membership in both. A forbidden office is one to which a member cannot be appointed even if he is willing to give up his seat in Congress. The effect of his resignation from the Congress is the loss of his seat therein but his

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No Senator or Member of the House of Representatives may personally appear as counsel before any court of justice or before the Electoral Tribunals, or quasi-judicial and other administrative bodies. Neither shall he, directly or indirectly, be interested financially in any contract with, or in any franchise or special privilege corporation, or its subsidiary, during his term of office. He shall not intervene in any matter before any officer of the Government for his pecuniary benefit or where he may be called upon to act on account of his office.82

4. Quorum and Voting Majorities

A majority of each House shall constitute a quorum to do business, but a smaller number may adjourn from day to day and may compel the attendance of absent Members in such manner, and under such penalties, as such House may provide.83

5. Discipline of Members84

Each house may punish its members for disorderly behavior85, and, with the concurrence

of 2/3 of all its members, suspend86 or expel a member. A penalty of suspension, when imposed, shall not exceed sixty days.

disqualification for the forbidden office nevertheless remains. The prohibition lies in the "fiduciary" nature of the relationship involved. Such a member cannot resign in anticipation of the passage of the law creating such office or increasing its emolument as a way of circumventing the prohibition. However, the prohibition is not forever (as in the Jones Law); it is for the term for which he was elected. 82 Sec. 14 What the Constitution prohibits in the case of members of Congress who are also members of the bar is their personal appearance before any of these bodies. This is not a prohibition against, the practice of law in any court. Thus, a member may still sign and file his pleadings, give legal advice, continue as partner, and have a partner or associate appear for him in court. 83 Sec. 16 (2) The quorum required to conduct business is a majority (1/2 + 1) of all the members. But to pass a law, only the votes of the majority of those present in the session, there being a quorum, are required. This is known as the "shifting majority". To illustrate: 13 members of the Senate are sufficient to constitute a quorum. If only 13 members are present, a vote by 7 in favor of a bill is sufficient to pass it. But as the number of those present increases, the number of votes needed to pass a bill would correspondingly increase, i.e., shift. When a quorum cannot be had, a smaller number may adjourn from day to day, and compel the attendance of the absent (recalcitrant) members by the means of arrest or such other measures and penalties as the House may provide in its rules. The basis in determining the existence of a quorum in the Senate shall be the total number of Senators who are in the country and within the coercive jurisdiction of the Senate. (Avelino v. Cuenco, 83 Phil. 17) 84 Sec. 16 (3) 85 The determination of the acts which constitute disorderly behavior is within the full discretionary authority of the House concerned, and the Court will not review such determination, the same being a political question. (Osmena vs. Pendatun, 109 Phil. 863) 86 for not more than 60 days

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6. Electoral Tribunals and the Commission on Appointments a. Nature

Electoral Tribunal87 Commission on Appointments88

Independent of the Houses of Congress, and its decision may be reviewed by the SC only upon showing of grave abuse of discretion in a petition for certiorari filed under Rule 65 of the Rules of Court.89

It acts as a legislative check on the appointing authority of the President. For the effectivity of the appointment of certain key officials enumerated in the Constitution, the consent of the Commission on Appointments is needed.

b. Powers

Electoral Tribunals Commission on Appointments90 1. Sole judge of all contests relating to the election, returns and qualification of their respective members.91 2. Rule-making power92

1. Shall act on all appointments submitted to it within 30 session days of Congress from their submission; and 2. Power to promulgate its own rules of proceedings.

87 Composition: 1) 3 Supreme Court Justices designated by Chief Justice; and 2) 6 members of the Chamber concerned (Senate or HR) chosen on the basis of proportional representation from political parties and parties registered under the party-‐list system Senior Justice shall act as Chairman. 88 Composition: 1) 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. 2) Senate President as ex-‐officio chairman. 3) Chairman shall not vote except in case of tie. 89 Pena vs. HRET, G.R. No. 123037, March 21, 1997 90 Commission on Appointments meets only while Congress is in session. Meetings are held either at the call of the Chairman or a majority of all its members. Since the Commission on Appointments 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. 91 Art. VI, Sec. 17 92 Lazatin v. HRET, 168 SCRA 391

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7. Powers of Congress a. Legislative

(1) Legislative Inquiries and the Oversight Functions

The Senate or the House of Representatives or any of its respective committees may

conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected.93

The heads of departments may, upon their own initiative, with the consent of the President94, or upon the request of either House, as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments. Written questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at least three days before their scheduled appearance. Interpellations shall not be limited to written questions, but may cover matters related thereto. When the security of the State or the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session.95

(2) Bicameral Conference Committee

Bills or "suggested laws" are put forward by either Congress or Senate but it has to be approved by both bodies before it can proceed to become law. There are some cases where the version of the bill approved by Congress is different from the one in the Senate or vice-versa. The bill cannot be passed if it has multiple forms because then multiple laws will be created, and each version needs to be approved by both Congress and Senate. To resolve this issue, a bicameral conference committee is created which takes representatives from both Congress and Senate and they unify the two differing bills into one coherent law.

93 Sec. 21 Each house or any of its committees may conduct "inquiries in aid of legislation" according to its duly published rules of procedures. To enforce this right, the SC upheld the power of Congress to hold in contempt a person required to appear before Congress or its committee and answer questions relevant to a matter of legislative interest. It is an indispensable requirement for an effective discharge of legislative authority designed to gather data or information vital in the formulation of laws without which legislative power becomes an empty term. However, the exercise of such duty is not illimitable. It has to be exercised in accordance with the limitations imposed by the Constitution: (a) in aid of legislation; (b) in accordance with duly published rules of procedure; (c) rights of persons appearing in, or affected by such, inquiry shall be respected But, if the investigation is no longer “in aid of legislation” but “in aid of prosecution” which the stated purpose of the investigation is to determine the existence of violations of the law, then it is beyond the scope of congressional powers. 94 In deference to separation of powers, and because department heads are alter egos of the President, they may not appear without the permission of the President. 95 Sec. 22 Oversight functions: Such functions are intended to enable Congress to determine how laws it has passed are being implemented.

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(3) Limitations on Legislative Power (a) Limitations on Revenue, Appropriations and Tariff

Measures

All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of local application, and private bills shall originate exclusively in the House of Representatives, but the Senate may propose or concur with amendments.96

(b) Presidential Veto97 and Congressional Override

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

(2) The President shall have the power to veto any particular item or items in an

appropriation, revenue, or tariff bill, but the veto shall not affect the item or items to which he does not object.98 96 Sec. 24 Shall originate exclusively from the House – the initiative for filing of RAT 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, so long as the action by the Senate is withheld pending the receipt of the House bill. (Tolentino v. Sec. Of Finance, 235 SCRA 630). Appropriation Bill -‐ one the principal and specific aim of which is to appropriate a certain sum of money from the public treasury. Revenue Bill -‐ one that is specifically designed to raise money or revenue through imposition or levy. Private Bill -‐ one that is addressed to a specific private interest. Bill of Local Application -‐ one that is addressed to a particular place or locality or where the interest of a designated community is the thrust of the bill. 97 The exercise of the veto power of the President is purely discretionary. He may veto a bill on any ground, whether on constitutional grounds or even on the wisdom and practicability of the bill which cannot be interfered with on the theory that the exercise of such power is a political act. As a general rule, when the President vetoes a bill, he must veto the bill in its entirety. However, the President is allowed to veto any item or items in an appropriation, tariff or revenue bill, but the veto shall not affect the item or items to which he does not object. 98 Sec. 27 When the President vetoes a measure, he should return the measure to the House of origin, indicating his objections thereto in what is commonly known as a "veto message" so that the same can be studied by the members for possible overriding of his veto Upon consideration of the objections raised by the President in his veto message, the House from which the bill originated shall reconsider the bill. If after such reconsideration, 2/3 of all the members of such house shall agree to pass the bill, it shall be sent together with the objections of the President, to the other house by which it shall likewise be reconsidered. If approved by 2/3 of all the members of that house, it shall become a law. In all such cases, the votes of each house shall be determined by "yeas" or "nays", and the names of the members voting for or against shall be entered in the Journal. [VI, 27(1)]

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b. Non-Legislative

(1) Informing Function

The means by which Congress has collected, processed and acted on information vital to its role as national legislature.

Congress informs itself in an effort to produce better legislation, and of reporting its

activities to the public. 2) Power of impeachment

The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment.99

3) Other non-legislative power a. Power to declare the existence of state of war.100 b. Power to act as Board of Canvassers in election of President.101 c. Power to call a special election for President and Vice-‐President.102 d. Power to judge President’s physical fitness to discharge the functions of the

Presidency.103 e. Power to revoke or extend suspension of the privilege of the writ of habeas corpus

or declaration of martial law.104 f. Power to concur in Presidential amnesties.105 g. Power to concur in treaties or international agreements.106

Pocket Veto One by which the President secures the disapproval of a bill by mere inaction after the adjournment of Congress. Pocket veto is not allowed because under the Constitution, where the President fails to communicate his veto on any bill to the House where it originated within 30 days after receipt thereof, the bill becomes a law as if he had signed it. The inability of the President to return the bill within the reglementary period prescribed by the Constitution converts the bill, by inaction, into law. 99 Sec. 2, Art. XI 100 Sec. 23 [1], Art. VI 101 Sec. 10, Art. VII 102 Ibid. 103 Ibid. 104 Sec. 18, id. 105 Sec. 19, id. 106 Sec. 21, id.

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h. Power to confirm certain appointments/nominations made by the President.107 i. Power relative to natural resources.108 g. Power of internal organization.

a) Election of officers b) Promulgate internal rules c) Disciplinary powers109

D. Executive Department110

1. Privileges, Inhibitions and Disqualifications

a. Presidential Immunity

Immunity from suit during his tenure111

b. Presidential Privilege112

Two kinds:

Presidential communications privilege

Communications, documents or other materials that reflect presidential decision-making and deliberations and that the President believes should remain confidential.

Deliberative process privilege

Includes advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.

107 Secs. 9 and 16, id. 108 Sec. 2, Art. XII 109 Sec. 16, Art. VI 110 Art. VII 111 Deemed implied in the Constitution (Bernas, The 1987 Constitution, A Commentary 2003 Ed., p 803) The immunity does not however extend to non-‐official acts or for wrong doing (Estrada vs. Desierto, G. R. Nos. 146710-‐15, March 2, 2001) While the President is immune from suit, she may not be prevented from instituting suit. Such immunity must be exercised only by the President himself and not by others on his behalf. (Soliven v. Makasiar, 167 SCRA 393) 112 It is highly recognized in cases where the subject of the inquiry relates to a power textually committed by the Constitution to the President, such as the area of military and foreign relations. Under our Constitution, the President is the repository of the commander-‐in-‐chief (Art. VII, Sec. 18); appointing (Sec. 16, ibid); pardoning (Sec. 19, ibid); and diplomatic (Secs. 20 and 21, ibid) powers. Consistent with the doctrine of separation of powers, the information relating to those powers may enjoy greater confidentiality than others (Neri vs. Senate Committee on Accountability of Public Officers and Investigation, et al., G.R. No. 18063, March 25, 2008 citing U.S. Court of Appeals In Re: Sealed Case No. 96-‐3124, June 17, 1997)

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2. Powers a. Executive and Administrative Powers in General

Executive Powers Administrative Powers

The President shall have control of all executive departments, bureaus and offices. He shall ensure that laws are faithfully executed.113 Until and unless a law is declared unconstitutional, President has a duty to execute it regardless of his doubts as to its validity.114

(i) Create, abolish, group, coordinate, consolidate, merge or integrate departments, bureaus, offices, agencies, instrumentalities and functions of the government; and transfer functions, appropriations, equipment, property, records and personnel from one ministry, bureau, office, agency or instrumentality to another; (ii) Standardize salaries, materials and equipment; (iii) Remove or otherwise discipline officers of the government as may be provided by law; and (iv) Commute or remove administrative penalties or disabilities upon officials or employees in disciplinary cases.

b. Power of Appointment

(1) In General

The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards.

The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress.115

113 Sec. 17 "Control" is the power to substitute one's own judgment in that of a subordinate. 114 faithful execution clause Sec.1 and 17 115 Sec. 16

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(2) Commission on Appointments Confirmation a. Heads of executive departments;

b. Ambassadors and other public ministers and consuls;

c. Officers of the AFP from the rank of colonel or naval captain; and

d. Other ministers whose appointments are vested in him by the Constitution116

(3) Midnight Appointments Those made by the President or Acting President two months immediately before the next presidential elections and up to the end of his term, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety.117

(4) 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.118

c. Power of Control119 and Supervision120 (1) Doctrine of Qualified Political Agency121

All executive and administrative organizations are adjuncts of the Executive Department,

the heads of the various executive departments are assistants and agents of the Chief Executive, and, except in cases where the Chief Executive is required by the Constitution or law to act in person or the exigencies of the situation demand that he act personally, the multifarious executive and administrative functions of the Chief Executive are performed by and through the executive departments, and the acts of the secretaries of such departments, performed and promulgated in the regular course of business, are, unless disapproved or reprobated by the Chief Executive presumptively the acts of the Chief Executive.122

116 Sarmiento v. Mison, G.R. No. 79974, December 17, 1987 117 See Section 15, Art. VII 118 e.g. impeachment 119 The power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter (Mondano v. Silvosa, 97 Phil. 143). It is such power which has been given to the President over all executive officers, from Cabinet members to the lowliest clerk. This is an element of the presidential system where the President is the Executive of the Government of the Philippines, and no other. But the power of control may be exercised by the President only over the acts, not over the actor. (Angangco v. Castillo, 9 SCRA 619) 120 It is the power of a superior officer to ensure that the laws are faithfully executed by inferiors. The power of supervision does not include the power of control; but the power of control necessarily includes the power of supervision. The power of the President over local governments is only of general supervision. 121 Alter Ego Principle 122 Villena v. Secretary of Interior, 67 Phil. 451

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(2) Executive Departments and Offices

The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed.123

(3) Local Government Units

The President of the Philippines shall exercise general supervision over local

governments. Provinces with respect to component cities and municipalities, and cities and municipalities with respect to component barangays, shall ensure that the acts of their component units are within the scope of their prescribed powers and functions.124

d. Military Powers125

1. To call out the Armed Force to prevent or suppress lawless violence, invasion or rebellion; and/or organize courts martial and create military commissions.126

2. Suspension of the Privilege of Writ of Habeas Corpus and Declaration of Martial

Law127

e. Pardoning Power (1) Nature and Limitations

Nature Limitations Discretionary, may not be controlled by the legislature or reversed by the court, unless there is a constitutional violation.

a. cannot be granted in cases of impeachment;

b. cannot be granted in violations of election laws without favorable recommendations of the COMELEC; c. can be granted only after convictions by final judgment;128 d. cannot be granted in cases of

123 Sec. 17 124 Sec. 4 125 Sec. 18, Art. VIII 126 Commander-‐in –Chief clause 127 Grounds: invasion or rebellion, when public safety requires it. Duration: not more than 60 days, following which it shall be lifted, unless extended by Congress. Duty of the President to report to Congress: within 48 hours personally or in writing. Authority of Congress to revoke or extend the effectivity of proclamation: by majority vote of all of its members voting jointly. Authority of the Supreme Court: to 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. Proclamation does not affect the right to bail. Suspension applies only to persons facing charges of rebellion or offenses inherent in or directly connected with invasion. Person arrested must be charged within 3 days; if not, must be released. Proclamation does not supersede civilian authority

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legislative contempt or civil contempt; e. cannot absolve convict of civil liability; and f. cannot restore public offices forfeited.

(2) Forms of Executive Clemency

Pardon129

Act of grace which exempts individual on whom it is bestowed from punishment which the law inflicts for a crime he has committed.

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

Act of grace, concurred in by the Legislature, usually extended to groups of persons who committed political offenses, which puts into oblivion the offense itself.

f. Diplomatic Power130

No treaty or international agreement shall be valid and effective unless concurred in by at least 2/3 of all members of Senate.131

In public international law, the conduct of foreign relations or diplomatic power is

vested in the Head of State or sovereign. In States which observe the doctrine of separation of powers, the President holds actual executive power including the conduct of foreign relations.

128 except amnesty 129 Pardon Classified: 1.Plenary or partial; and 2.Absolute or conditional. 130 Some of the foreign relations powers of the President

a. The power to negotiate treaties and international agreements b. The power to appoint ambassadors and other public ministers and consuls c. The power to receive ambassadors and other public ministers accredited to the Philippines d. The power to contract and guarantee foreign loans on behalf of the Republic e. The power to deport aliens

131 Sec. 21

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g. Powers relative to appropriation measures

The President shall submit to the Congress, within thirty days from the opening of every regular session as the basis of the general appropriations bill, a budget of expenditures and sources of financing, including receipts from existing and proposed revenue measures.132

h. Delegated powers

In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof.133

The Congress may, by law, authorize the President to fix within specified limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the national development program of the Government.134

i. Veto powers

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

The President shall have the power to veto any particular item or items in an appropriation, revenue, or tariff bill, but the veto shall not affect the item or items to which he does not object.135

j. Residual Powers Whatever is not judicial, whatever is not legislative, is residual power exercised by the

President.136

k. Executive privilege

It is the power of the President to withhold certain types of information from the public, the courts, and the Congress.

132 Sec. 22 133 Sec. 23 (2), Art. VI 134 Sec. 28 (2), id. 135 Sec. 27, id. 136 Marcos v. Manglapus, 178 SCRA 760

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C. Rules on Succession The President-elect and the Vice President-elect shall assume office at the beginning of

their terms.

If the President-elect fails to qualify, the Vice President-elect shall act as President until the President-elect shall have qualified.

If a President shall not have been chosen, the Vice President-elect shall act as President until a President shall have been chosen and qualified.

If at the beginning of the term of the President, the President-elect shall have died or shall have become permanently disabled, the Vice President-elect shall become President.

Where no President and Vice-President shall have been chosen or shall have qualified, or where both shall have died or become permanently disabled, the President of the Senate or, in case of his inability, the Speaker of the House of Representatives, shall act as President until a President or a Vice-President shall have been chosen and qualified.

The Congress shall, by law, provide for the manner in which one who is to act as President shall be selected until a President or a Vice-President shall have qualified, in case of death, permanent disability, or inability of the officials mentioned in the next preceding paragraph.137

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

The Congress shall, by law, provide who shall serve as President in case of death, permanent disability, or resignation of the Acting President. He shall serve until the President or the Vice-President shall have been elected and qualified, and be subject to the same restrictions of powers and disqualifications as the Acting President.138

Whenever there is a vacancy in the Office of the Vice-President during the term for which he was elected, the President shall nominate a Vice-President from among the Members of the Senate and the House of Representatives who shall assume office upon confirmation by a majority vote of all the Members of both Houses of the Congress, voting separately.139

137 Sec. 7, Art. VII 138 Sec. 8, id. 139 Sec. 9, id.

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E. Judicial Department140 1. Concepts

a. Judicial Power141

The duty of courts of justice 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 government.142

b. Judicial Review143

The power of the courts, ultimately of the SC, to interpret the Constitution and to declare any legislative or executive act invalid because it is in conflict with the fundamental law. This authority is derived by clear implication from the provision of Sec. 5(2), Art. VIII of the Constitution. Through such power, the SC enforces and upholds the supremacy of the Constitution

(1) Operative Fact Doctrine

An unconstitutional law has an effect before being declared unconstitutional. The doctrine of operative fact as an exception to the general rule, only applies as a matter of equity and fair play.144 It nullifies the effects of an unconstitutional law by recognizing that the existence of a statute prior to a determination of unconstitutionality is an operative fact and may have consequences which cannot always be ignored. The past cannot always be erased by a new judicial declaration.145

140 Art. VIII 141 vested in: 1. One Supreme Court; and 2. Such lower courts as may be established by law (Sec. 1, Art. VIII). 142 Sec. 1, par.2 143 All courts can exercise Judicial Review: The Constitution contemplates that the inferior courts should have jurisdiction in cases involving constitutionality of any treaty or law for Sec. 5 (2), Art. VIII speaks of appellate review of final judgments of inferior courts in cases where such constitutionality happens to be in issue. (J.M. Tuason and Co. v. Court of Appeals, 3 SCRA 696). The Constitution vests the power of judicial review not only in the Supreme Court but also in the RTC. However, in all actions assailing the validity of a statute, treaty, presidential decree, order or proclamation – and not just in actions involving declaratory relief and similar remedies, notice to the Solicitor General is mandatory, as required in Sec. 3, Rule 64 of the Rules of Court. The purpose of this mandatory notice is to enable the Solicitor General to decide whether or not his intervention in the action is necessary (Mirasol v. Court of Appeals, G.R. No. 128448, February 1, 2001) 144 Planters Products vs. Fertiphil Corp., G.R. No. 166006, March 14, 2008, citing Republic vs. Court of Appeals, G.R. No. 79732, November 8, 1993, 227 SCRA 509. 145 Planters Products, supra citing Peralta vs. Civil Service Commission, G.R. No. 95832, August 10, 1992, 212 SCRA 425.

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(2) Moot Questions146 A case becomes moot when there are facts, injuries and heated 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.

(3) Political Question Doctrine

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.147

2. Safeguards of Judicial Independence

a.. SC is a Constitutional body; may not be abolished by law;

b. Members are only removable by impeachment;

c. SC may not be deprived of minimum and appellate jurisdiction; appellate jurisdiction may not be increased without its advice or concurrence;

d. SC has administrative supervision over all inferior courts and personnel;

e. SC has exclusive power to discipline judges/justices of inferior courts;

f. Members of judiciary enjoy security of tenure;

g. Members of judiciary may not be designated to any agency performing quasi-judicial or administrative functions;

h. Salaries of judges may not be reduced; judiciary enjoys fiscal autonomy;

i. SC alone may initiate Rules of Court;

j. SC alone may order temporary detail of judges; and

k. SC can appoint all officials and employees of the Judiciary

146 Moot refers to a subject for academic argument. They are abstract questions that do not arise from existing facts or rights. The Court may still exercise the power of judicial review even if the issues had become moot and academic when it feels called upon to exercise its symbolic function Exceptions to mootness: a) If the question is capable of repetition and evasive of review. b) If there exist a mere possibility of collateral legal consequences if the court does not act. c) Voluntary cessation from the wrongful act by the defendant, if he is free to return to his old ways. 147 Tañada v. Cuenco, 100 Phil 1101

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3. Judicial Restraint

A legal term that describes a type of judicial interpretation that emphasizes the limited nature of the court's power. Judicial restraint asks judges to base their judicial decisions solely on the concept of stare decisis, which refers to an obligation of the court to honor previous decisions.

Conservative judges often employ judicial restraint when deciding cases, unless the law is clearly unconstitutional. Judicial restraint is the opposite of judicial activism, in that it seeks to limit the power of judges to create new laws or policy. In most cases, the judicially restrained judge will decide a cases in such a way as to uphold the law established by Congress. Jurists who practice judicial restraint show a solemn respect for the separation of governmental problems.

4. Appointments to the Judiciary

a. Appointed by President from among a list of at least 3 nominees prepared by Judicial

and Bar Council for every vacancy.

b. For lower courts, President shall issue the appointment 90 days from submission of the list.

5. Supreme Court a. En Banc and Division Cases

En Banc Cases148 Division Cases149 1. All cases involving the constitutionality of a treaty, international or executive agreement, or law 2. All cases which under the Rules of Court may be required to be heard en banc 3. All cases involving the constitutionality, application or operation of presidential decrees, proclamations, orders, instructions, ordinances and other regulations

Other cases or matters may be heard in division, and decided or resolved with the concurrence of a majority of the members who actually took part in the deliberations on the issues and voted thereon, but in no case without the concurrence of at least three (3) such members.

148 When the Supreme Court sits en banc, cases are decided by the concurrence of a majority of the members who actually took part in the deliberations on the issues in the case and voted thereon. Thus, since a quorum of the SC is eight, the votes of at least five are needed and are enough, even if it is a question of constitutionality. This is a liberalization of the old rule which required a qualified majority of a definite number. Moreover, those who did not take part in the deliberation do not have the right to vote. 149 Decisions of a Division of the SC are not appealable to the Court en banc. Decisions or resolutions of a division of the Court, when concurred in by a majority of its members who actually took part in the deliberations on the issues in a case and voted thereon is a decision or resolution of the SC itself. The SC sitting en banc is not an appellate court vis-‐à-‐vis its divisions, and it exercises no appellate jurisdiction over the latter. Each division of the Court is considered not a body inferior to the Court en banc, and sits veritably as the Court en banc itself. The only constraint is that any doctrine or principle of law laid down by the Court, either rendered en banc or in division, may be overturned or reversed only by the Court sitting en banc (Firestone Ceramics v. CA, G.R. No. 127245, June 28, 2000)

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4. Cases heard by a division when the required majority in the division is not obtained 5. Cases where the Supreme Court modifies or reverses a doctrine or principle of law previously laid down either en banc or in division

6. Administrative cases involving the discipline or dismissal of judges of lower courts 7. Election contests for President or Vice-President.

b. Procedural Rule Making150

Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rule shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.151

c. Administrative Supervision over Lower Courts152

The Supreme Court shall have administrative supervision over all courts and the personnel thereof.153

d. Original and appellate jurisdiction 1. Exercise original jurisdiction over cases affecting ambassadors, other public ministers

and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.

2. Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the

Rules of Court may provide, final judgments and orders of lower courts in:

150 The SC declared that the 1987 Constitution took away the power of Congress to repeal, alter or supplement rules concerning pleading, practice and procedure. The power to promulgate rules of pleading, practice and procedure is no longer shared by the Court with Congress, more so with the Executive. (Echegaray vs. Secretary of Justice, G.R. No. 132601) 151 Art. VIII, Sec. 5 (5) 152 In the absence of any administrative action taken against the RTC Judge by the SC with regard to the Judge’s certificate of service, the investigation conducted by the Ombudsman encroaches into the SC’s power of administrative supervision over all courts and its personnel, in violation of the doctrine of separation of powers. (Maceda v. Vasquez, 221 SCRA 464) 153 Art. VIII, Sec. 6

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a. All cases in which the constitutionality or validity of any treaty, international or

executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.

b. All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto.

c. All cases in which the jurisdiction of any lower court is in issue.

d. All criminal cases in which the penalty imposed is reclusion perpetua or higher;

e. All cases in which only an error or question of law is involved.

6. Judicial privilege

It is the privilege protecting any statement made in the course of and with reference to a

judicial proceeding by any judge, juror, party, witness, or advocate. However, this privilege is not absolute, but applies only where: (1) the statements involved were made during the course of judicial proceedings; and (2) they were relevant to the subject of inquiry.154

A privilege protecting the attorneys and parties in a lawsuit against tort claims based on

certain acts done and statements made when related to the litigation. The privilege is most often applied to defamation claims but may be extended to encompass other torts, such as invasion of privacy and disclosure of trade secrets. The facts of each case determine whether the privilege applies and whether it is qualified or absolute.155

F. Constitutional Commissions156

1. Constitutional safeguards to ensure independence of commissions

a. They are constitutionally created; may not be abolished by statute;

b. Each is expressly described as “independent;”

c. Each is conferred certain powers and functions which cannot be reduced by statute;

d. The Chairmen and members cannot be removed except by impeachment;

e. The Chairmen and members are given fairly a long term of office of 7 years;

f. The Chairmen and members may not be reappointed or appointed in an acting capacity;157

154 uslegal.com 155 Black’s Law Dictionary, 9th Ed. 156 The CSC, COMELEC, and 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, G.R. No. 160508, Sept. 15, 2004) 157 Brillantes v. Yorac, 192 SCRA 358

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g. The salaries of the Chairmen and members are relatively high and may not be decreased during continuance in office;

h. The Commissions enjoy fiscal autonomy;

i. 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;

j. The Chairmen and members are subject to certain disqualifications calculated to strengthen their integrity;

k. The Commissions may appoint their own officials and employees in accordance with Civil Service Law.

2. Powers and Functions of each commission

Civil Service Commission:158

a. The Commission has the power to grant civil service eligibility.159 b. It has the power to hear and decide administrative cases.160 c. The CSC shall administer the civil service.161 d. The CSC as the personnel agency of the government shall establish a career service;

e. It shall adopt measures to promote morale, efficiency, integrity, responsiveness, progressiveness, and courtesy in the civil service.

f. It shall strengthen the merit and rewards system;

g. It shall integrate all human resources development programs for all levels and ranks;

h. It shall institutionalize a management climate conducive to public accountability.

i. It shall submit to the President and the Congress an annual report on its personnel programs.162

158 The Commission is an administrative agency, nothing more. As such, it can only perform powers proper to an administrative agency. It can perform executive powers, quasi-‐judicial powers and quasi legislative or rule-‐making powers (Bernas Commentary, p. 1003 (2003 ed.) 159 In the exercise of its powers to implement R.A. 6850 (granting civil service eligibility to employees under provisional or temporary status who have rendered seven years of efficient service), the CSC enjoys wide latitude of discretion and may not be compelled by mandamus to issue eligibility. (Torregoza v. CSC) But the CSC cannot validly abolish the Career Executive Service Board (CESB); because the CESB was created by law, it can only be abolished by the Legislature (Eugenio v. CSC, 1995) 160 Under the Administrative Code of 1987, the CSC has the power to hear and decide administrative cases instituted before it directly or on appeal, including contested appointments. 161 Sec.1(1), Art. IX-‐B

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Commission on Elections:163

a. Enforce and administer law and regulations relative to conduct of elections, plebiscite, initiative, referendum or recall;164 b. Decide, except those involving right to vote, all questions affecting elections, including the determination of number and location of polling places, appointment of election officials and inspectors and registration of voters;165 c. Decide administrative questions.166 d. Deputize, with concurrence of President, law enforcement agencies and instrumentalities for exclusive purpose of insuring free, orderly, honest, peaceful and credible elections;167 e. Register, after sufficient publication, political parties, organizations or coalitions which must present their platform or program of government; accredit citizen’s arms;168

162 Sec. 3, id. 163 Art. IX-‐C Like the CSC, the COMELEC is an administrative agency. As such, therefore, the power it possesses are executive, quasi-‐judicial and quasi legislative. By exception, however, it has been given judicial power as judge with exclusive original jurisdiction over “all contest relating to the election, returns, and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contest involving elective municipal officials decided by trial courts of general jurisdiction or involving elective barangay officials decided by trial courts of limited jurisdiction (Bernas Primer at 393 (2006 ed.) The COMELEC's exercise of its quasi-‐judicial powers is subject to Section 3 of Article IX-‐C which expressly requires that 1) all election cases, including pre-‐proclamation controversies, shall be decided by the COMELEC in division, and 2) the motion for reconsideration shall be decided by the COMELEC en banc. The prosecution of election law violators involves the exercise of the COMELEC's administrative powers. Thus, the COMELEC en banc can directly approve the recommendation of its Law Department to file the criminal information for double registration against petitioners in the instant case. There is no constitutional requirement that the filing of the criminal information be first decided by any of the divisions of the COMELEC. (Baytan vs. Comelec, G.R. No. 153945, February 4, 2003) 164 e.g. COMELEC can enjoin construction of public works within 45 days of an electioin 165 Sec. 2(2) These petitions are cognizable by the regular courts (MTCs) 166 Sec. 2(3) 167 Sec. 2(4) This power is not limited to the election period Applies to both criminal and administrative cases 168 Sec. 2(5) Groups that cannot be registered: 1. Religious denominations/sects

2. Those that achieve their goals through violence or unlawful means 3. Those that refuse to uphold and adhere to the Constitution 4. Those supported by any foreign government, e.g. receipt of financial contributions related to elections

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f. Power to Promulgate Rules169 g. Supervision or regulation of franchises170 h. Contempt powers171 i. Issue writs of certiorari, prohibition and mandamus in the exercise of its appellate jurisdiction; j. File upon verified complaint or motu proprio petitions in court for inclusion or exclusion of voters; investigate and, where appropriate , prosecute cases of violations of elections laws, including acts or omissions constituting election frauds, offenses and malpractices;172 k. Recommend to Congress effective measures to minimize election spending, limitation of places and prevent and penalize all forms of election frauds, offenses, malpractice and nuisance candidates;173 and j. 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.174 m. Submit to President and Congress, comprehensive reports on conduct of each election, plebiscite, initiative, referendum or recall. n. In special cases, power to fix the election period.175

Commission on Audit

a. Examine, audit and settle all accounts pertaining to revenue and receipts of, and expenditures or uses of funds and property owned or held in trust or pertaining to government, any of its subdivisions, agencies or instrumentalities and GOCCs with original charters; b. Conduct post-audit with respect to the following:

169 Sec. 3, id. 170 Sec, 4, id. 171 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 or administrative powers It jurisdiction over ‘contests’ (after proclamation) is in exercise of its judicial functions 172 COMELEC has exclusive jurisdiction to investigate and prosecute cases for violation of election laws. It can deputize prosecutors for this purpose. The actions of the prosecutors are the actions of the COMELEC. It can even conduct preliminary investigation on election cases falling within its jurisdiction. 173 Secs. 2(7), (8) and (9), id. 174 Sec. 5, id 175 Sec. 9, id.

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1. Constitutional bodies, commissions, and offices granted fiscal autonomy

2. Autonomous state colleges and universities 3. GOCCs and their subsidiaries incorporated

under the Corporation Code

4. Non-governmental entities receiving subsidy or equity, directly or indirectly, from or through the government, which are required by law the granting institution to submit such audit c. If COA finds the internal control of audited agencies inadequate, COA may adopt measures, including temporary or special pre-audit, as necessary to correct deficiencies d. Keep general accounts of government and preserve vouchers and supporting papers pertaining thereto; e. Exclusive authority to define scope of its audit and examination, establish techniques and methods required therefor; and f. Promulgate accounting and auditing rules and regulations, including those for prevention and disallowance.176

3. Prohibited offices and interests Members of the Constitutional Commissions cannot:

a. Hold any other office or employment.

b. Engage in the practice of any profession.177

c. Engage in the active management or control of any business which in any way may be affected by the functions of his office.

176 The functions of COA can be classified as: 1. Examining and auditing all forms of government revenues and expenditures

2. Settling government accounts 3. Promulgating accounting and auditing rules 4. Deciding administrative cases involving expenditures of public funds

177 Teaching is not included in the prohibition.

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d. Be financially interested directly or indirectly, in any contract with, or in any franchise or privilege granted by the government, any of its subdivisions, agencies or instrumentalities, including government-owned or controlled corporations or their subsidiaries.178

4. Jurisdiction of each constitutional commission

Civil Service Commission

1. Jurisdiction on Personnel actions179 2. Original jurisdiction to hear and decide a complaint for cheating.180

Commission on Elections

1. Original jurisdiction over contests relating to elections, returns and qualifications of all elective a. Regional

b. Provincial

c. City officials

2. Appellate jurisdiction over contests involving

a. Elective municipal officials declared by trial courts of general jurisdiction b. Elective barangay officials declared by trial courts of limited jurisdiction c. COMELEC may issue extraordinary writs of certiorari, prohibition and mandamus 3. Exclusive jurisdiction to investigate and prosecute cases for violations of election laws.181

Commission on Audit:182

Jurisdiction shall extend over but not limited to the following cases and matters:

178 Government subsidiaries can be created either by special law or under the Corporation Code, the law does not distinguish. Sequestered Private Corporations are not included in the prohibition. 179 It is the intent of the Civil Service Law, in requiring the establishment of a grievance procedure, that decisions of lower officials (in cases involving personnel actions) be appealed to the agency head, then to the CSC. The RTC does not have jurisdiction over such personal actions. (Olanda v. Bugayong, 2003) 180 The Commission has original jurisdiction and decide a complaint for cheating in the Civil Service examinations committed by government employees. The fact that the complaint was filed by the CSC itself does not mean that it cannot be an impartial judge. (Cruz v. CSC, 2001) 181 De Jesus v. People, 120 SCRA 760 However, the COMELEC may validly delegate this power to the Provincial Fiscal [Prosecutor]. (People v. Judge Basilla, 179 SCRA 87) 182 See Powers and Functions, supra

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1. Disallowance of expenditures or uses of government funds and properties found to be illegal, irregular, unnecessary, excessive, extravagant or unconscionable; 2. Money claims due from or owing to any government agency; 3. Determination of policies, promulgation of rules and regulations, and prescription of standards governing the performance by the Commission of its powers and functions; 4. Resolution of novel, controversial, complicated or difficult questions of law relating to government accounting and auditing; 5. Charges made in the audit of revenues and receipts resulting from under-appraisal, under-assessment or under- collection; 6. Audit of the books, records and accounts of public utilities as provided by law; 7. Visitorial power over non-governmental organizations (1) subsidized by the government, (a) those required to pay levies or government share, (b) those funded by donations through the government, (c) those for which government has put up a counterpart fund, or (d) those entrusted with government funds or properties; 8. Authorization and enforcement of the settlement of accounts subsisting between agencies of the government; 9. Compromise or release in whole or in part, of any settled claim or liability to any government agency; 10. Power to require the submission of papers relative to government obligations; 11. Opening and revision of settled accounts; 12. Retention of money due to a person for satisfaction of his indebtedness to the government; 13. Seizure by the Auditor of the office of the local treasurer found to have a shortage in cash; 14. Checking and audit of all property or supplies of the government agency; 15. Constructive distraint of property of any accountable

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officer with shortage in his accounts upon a finding of a prima facie case of malversation of public funds or property against him; 16. In coordination with appropriate legal bodies, collection of indebtedness found to be due a government agency in the settlement and adjustment of its accounts by the Commission

5. Review of final orders, resolutions and decisions

a. Rendered in the exercise of Quasi-Judicial Functions

b. Rendered in the exercise of Administrative Functions

Given the new definition of judicial power as including the power 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, the courts can review acts of all administrative agencies, not only in the performance of their adjudicative function, but even in the performance of their other functions183 through the special civil action of certiorari. Civil Service Commission

Administrative Circular 1-95184 which took effect on June 1, 1995, provides that final resolutions of the CSC Shall be appealable by certiorari to the CA within 15 days from receipt of a copy thereof. From the decision of the CA, the party adversely affected thereby shall file a petition for review on certiorari under Rule 45 of the Rules of Court.

Commission on Audit

Judgments or final orders of the Commission may be brought by an aggrieved party to the Supreme Court on certiorari under Rule 65. Only when COA acts without or excess in jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, the SC may entertain a petition for certiorari under Rule 65.185

Commission on Elections

Only decision en banc may be brought to the Supreme Court by certiorari since Article IX-C says that motions

183 quasi-‐legislative, administrative 184 pursuant to R.A. 7902 185 The certiorari jurisdiction of the Supreme Court is limited to decision rendered in actions or proceedings taken cognizance of by the Commissions in the exercise of their adjudicatory or quasi-‐judicial powers. (It does not refer to purely executive powers such as those which relate to the COMELEC’s appointing power. Hence, questions arising from the award of a contract for the construction of voting booths can be brought before a trial court. Similarly, actions taken by the COMELEC as prosecutor come under the jurisdiction of the trial court which has acquired jurisdiction over the criminal case.)

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for reconsideration of decisions shall be decided by the Commission en banc.186

Bill of Rights187

1. Fundamental Powers of the State

a. Concept and Application

Police Power

The power of promoting public welfare by restraining and regulating the use of liberty and property.

Power of Eminent Domain

This is also known as the power of expropriation, it is described as the highest and most exact idea of property remaining in the government that may be acquired for some public purpose through a method in the nature of a compulsory sale to the state.

Power of Taxation

Taxes are enforced proportional contributions from persons and property levied by the state by virtue of its sovereignty, for the support of government and for all public needs. Taxation is the method by which these contributions are exacted.

b. Requisites188 for Valid Exercise

Police Power189

1. Lawful Subject – the interests of the public in general, as distinguished from those of a particular class, require the exercise of the power; 2. Lawful Means – the means employed are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive on individuals;

Power of Imminent Domain

1. Necessity – when exercised by:

186 Reyes v. RTC, 1995 187 Set of prescriptions setting forth the fundamental civil and political rights of the individual, and imposing limitations on the powers of government as a means of securing the enjoyment of those rights. 188 or limitations 189 When exercised by a delegate:

1. express grant by law; 2. within territorial limits – for LGUs except when exercised to protect water supply; and 3. must not be contrary to law.

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Congress – political question;

Delegate – justiciable question

2. Private property – all private property capable of ownership may be expropriated, except money and choses in action; may include services190

3. Taking - when: a. owner actually deprived or dispossessed of his property; b. there is practical destruction or a material impairment of value of property; c. owner is deprived of ordinary use of his property; and d. owner is deprived of jurisdiction, supervision and control of his property.191 4. 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 foes not necessarily diminish the essence and character of public use.192 5. Just compensation - compensation is qualified by the word just to convey that equivalent must be real, substantial, full and fair; the value of the property must be determined either as of the date of the taking of the property or the filing of the complaint, whichever came first.193

190 Republic v. PLDT, 26 SCRA 620 191 Requisites: i. expropriator must enter a private property; ii. entry must be more than a momentary period; iii. entry must be under a warrant or color of authority; iv. property must be devoted to public use or otherwise informally appropriated or injuriously affected; v. utilization of the property must be in such a way as to oust the owner and deprive him of beneficial enjoyment of the property (Republic v. Castelvi, 58 SCRA 336). 192 Manosca v. Court of Appeals, 252 SCRA 412 Once expropriated change of public use is of no moment. It is well within the rights of the condemnor as owner to alter and decide its use so long as it still for public use. (Republic vs. C.A., G.R. No. 146587, July 2, 2002) 193 Formula: -‐-‐ fair market value of the property, to which must be added the consequential damages, minus the consequential benefits, but in no case will the consequential benefits exceed the consequential damages Fair market value – the price that maybe agreed upon by parties who are willing but are not compelled to enter into a contract of sale. Consequential damages – consist of injuries directly caused on the residue of the private property taken by reason of expropriation

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6. Due process of law – the defendant must be given an opportunity to be heard.

Power of Taxation

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.

Constitutional limitations:194

a. Due process of law;

b. Equal protection of law;

c. Uniformity, equitability, and progressivity of taxation;

d. Non-impairment of contracts;

e. Non-imprisonment for non-payment of poll tax;

f. Origin of appropriation, revenue, and tariff bills;

g. Non-infringement of religious freedom;

h. Delegation of legislative authority to the

President to fix tariff rates, import and export quotas, tonnage and wharfage dues;

i. Tax exemption of properties actually, directly and exclusively used for religious, charitable and educational purposes;

j. Majority vote of all members of Congress required in case of legislative grant of tax exemptions;

194 Any question regarding the constitutionality of a tax measure must be resolved in favor of its validity. Any doubt regarding the taxability of any person under a valid law must be resolved in favor of that person and against the taxing power. Any doubt as to the applicability of a tax exemption granted to a person must be resolved against the exemption.

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k. Non-impairment of the Supreme Court’s

jurisdiction in tax cases;

l. Tax exemption of revenues and assets of, Including grants, endowments, donations, or contributions to educational institutions.

c. Similarities and Differences Similarities

1. Inherent in the State, exercised even without need of express constitutional grant

2. Necessary and indispensable; State cannot be effective without them

3. Methods by which State interferes with private property

4. Presuppose equivalent compensation

5. Exercised/primarily/by/the/Legislature

Differences

Basis Police Power Eminent Domain Taxation Rights regulated

Liberty &property rights

Property rights only

Property rights only

Exercised by

Government

Government; Private Entities

Government

Property taken and purpose

Usually noxious; noxious purpose

Wholesome; public purpose

Wholesome: public Purpose

Compensation

Intangible, altruistic feeling of contributing to the public good

Full and fair Equivalent of the property taken

Protection given or public improvements

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d. Delegation

Police power195

Congress may validly delegate this power to the President, to administrative bodies and to lawmaking bodies of local government units. Local government units exercise the power under the general welfare clause196 and under Secs. 391, 447, 458 and 468, R.A. 7160.197

Power of Eminent Domain

Congress may validly delegate this power to the President, administrative bodies, local government units, and even private enterprises performing public services.

Power of Taxation

Congress may validly delegate this power to local government bodies198 and to a limited extent, the President when granted delegated tariff powers199

2. Private Acts and the Bill of Rights

In the absence of governmental interference, the liberties guaranteed by the Constitution cannot be invoked against the State. The Bill of Rights guarantee governs the relationship between the individual and the State. Its concern not the relation between private individuals. What it does is to declare some forbidden zones the private sphere inaccessible to any power holder.200 In the absence of governmental interference, the liberties guaranteed by the Constitution cannot be invoked/by/private individuals. Put differently, the Bill of Rights is not meant to be invoked against acts of private individuals.201

However, the Supreme Court,202 where the husband invoked his right to

privacy of communication and correspondence against a private individual, his wife, who had forcibly taken from his cabinet and presented as evidence against him documents and private correspondence, held these papers inadmissible in evidence, upholding the husband’s right to privacy.

195 inherently vested in the Legislature 196 Sec. 16, R.A. 7160, see Reference 197 See Reference 198 Sec. 5, Art. X 199 Sec. 28 (2), Art. VI 200 People v. Marti, G.R. No. 81561, Jan. 18, 1991 201 Yrasegui vs. PAL, G.R. No. 168081, Oct. 17, 2008 202 in Zulueta v. CA, G.R. No. 107383, Feb. 20 1996

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3. Due Process203

No person shall be deprived of life, liberty or property without due process of law.204

a. Relativity of Due Process

The guaranties of due process are universal in their application to all persons within the territorial jurisdiction, without regard to any differences of race, color or nationality. The word “person” includes aliens. Private corporations are within the scope of the guaranties insofar as their properties are concerned.

b. Procedural and Substantive Due Process

Procedural Due Process Substantive Due Process Due process was understood to relate chiefly to the mode of procedure which government agencies must follow, it was understood as a guarantee of procedural fairness. Its essence is a “law which hears before it condemns”. Thus, it serves as a restriction on actions of judicial and quasi-judicial agencies of government.

The due process clause must be interpreted both as a procedural and a substantive guarantee. It must be a guarantee against the exercise of arbitrary power even when the power is exercised according to proper forms and procedure. Thus, it serves as a restriction on government’s law and rule-making power.

c. Constitutional and Statutory Due Process

Constitutional Due Process Statutory Due Process

Protects the individual from the government and assures him of his rights in criminal, civil or administrative Proceedings.

While found in the Labor Code and Implementing Rules protects employees from being unjustly terminated without just cause after notice and hearing.205

203 Art. III, Sec. 1 That which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial (Darmouth College v. Woodward, 4 Wheaton 518). 204 People v. Cayat, G.R. No. L-‐45987, May 5, 1939 205 Agabon v. NLRC, G.R. No. 158693, November 17, 2004

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d. Hierarchy of Rights

The primacy of human rights over property rights is recognized. Because these freedoms are “delicate and vulnerable, as well as supremely precious in

our society” and the “threat of sanctions may deter their exercise almost as potently as the actual application of sanctions,” they “need breathing space to survive,” permitting government regulation only “with narrow specificity.”

Property and property rights can be lost through prescription; but human rights are imprescriptible. If human rights are extinguished by the passage of time, then the Bill of Rights us a useless attempt to limit the power of government and ceases to be an efficacious shield against tyranny of officials, of majorities, of the influential and powerful, and of oligarchs.

Property is not a basic right. Property has an intimate relation with life and liberty.

Protection of property was a primary object of the social compact and that the absence of such protection could well lead to anarchy and tyranny. Property is an important instrument for the preservation and enhancement of personal dignity.

Property is as important as life and liberty – and to protect their (poor) property is really

to protect their life and their liberty

e. Judicial Standards of Review206 Deferential review Intermediate review Strict scrutiny Laws are upheld if they rationally further a legitimate governmental interest, without courts seriously inquiring into the substantiality of such interest and examining the alternative means by which the objectives could be achieved

The substantiality of the governmental interest is seriously looked into and the availability of less restrictive alternatives are considered.

The focus is on the presence of compelling, rather than substantial governmental interest and on the absence of less restrictive means for achieving that interest.207

206 Judicial review can only be exercised in an actual case and controversy. This means (1) a party with a personal and substantial interest, (2) an appropriate case, (3) a constitutional question raised at the earliest possible time, and (4) a constitutional question that is the very lis mota of the case, i.e. an unavoidable question (People v. Vera, 66 Phil 56 (1937) 207 Separate opinion of Justice Mendoza in Estrada v. Sandiganbayan, G.R. No. 148965, Feb. 26, 2002

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f. Void-for-Vagueness Doctrine It holds that a law is vague when it lacks comprehensive standards that men of

common intelligence must necessarily guess at its common meaning and differ as to its application. In such instance, the statute is repugnant to the Constitution because:

1. It violates due process for failure to accord persons, especially the parties targeted by it, fair notice of what conduct to avoid

2. It leaves law enforcers an unbridled discretion in carrying out its provisions.208 4. Equal Protection

Nor shall any person be denied the equal protection of the laws.209

a. Concept

The Equal Protection Clause is a specific constitutional guarantee of the Equality of the Person. The equality it guarantees is “legal quality or the equality of all persons before the law.” This clause does not only prohibit the State from passing discriminatory laws but it also commands the State to pass laws which positively promote equality or reduce existing inequalities.

“All person or things similarly situated should be treated alike, both as to rights

conferred and responsibilities imposed”. The equal protection clause is a specific constitutional guarantee of the Equality of the Person. The equality guarantees the “legal equality or as it is usually put, the equality of all persons before the law. Under it, each individual is dealt with as an equal person in the law, which does not treat the person differently because of who he is or what he is or what he possess.210

b. Requisites for Valid Classification

1. Substantial distinction

2. Germane to the purpose of the law-the distinction which must make for real differences should have reasonable relation to the purpose of the law.

3. Not limited to existing conditions only

4. Must apply equally to all members of the same class

208 People v. de la Piedra, G.R. No. 128777, Jan. 24, 2001 209 Art. III, Sec.1 210 The equality guaranteed however, “is not disembodied equality”. It does not deny to the state the power to recognize and act upon factual differences between individuals and classes. It recognizes that inherent in the right to legislate is the right to classify.

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c. Standards of judicial review 1) Rational Basis Test

Where the classification needs only to be related to a legitimate state interest.

Rational basis is the most deferential of the standards of review that courts use in due-process and equal-protection analysis.211

2) Strict Scrutiny Test

A legislative classification which impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class is presumed unconstitutional, and that the burden is upon the government to prove that the classification is necessary to achieve a compelling State interest and that it is the less restrictive means to protect such interest.

Under strict scrutiny, the state must establish that it has a compelling interest that justifies and necessitates the law in question.212

The focus is on the presence of compelling, rather than substantial governmental

interest and on the absence of less restrictive means for achieving that interest.213

3) Intermediate Scrutiny Test Where the government must show that the challenged classification serves an important State interest and that the classification is substantially related to that interest.

Under the standard, if a statute contains a quasi-suspect classification,214 the classification must be substantially related to the achievement of an important governmental objective.215

211 Black’s Law Dictionary, 9th Ed. 212 Black’s Law Dictionary, 9th Ed. 213 Separate opinion of Justice Mendoza in Estrada v. Sandiganbayan, G.R. No. 148965, Feb.26, 2002 214 such as gender or legitimacy 215 Black’s Law Dictionary, 9th Ed.

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5. Searches and Seizures216

a. Concept

Not just a circumscription of the power of the state over a person’s home and possessions. More important, it protects the privacy and sanctity of the person himself. It is a guarantee of the right of the people to be secure in their “persons…against unreasonable searches and seizures”. It is therefore also a guarantee against unlawful arrests and other forms of restraint on the physical liberty of the person. The constitutional guarantee is not a prohibition of all searches and seizures but only of “unreasonable” searches and seizures.

Available to all persons, including aliens whether accused of a crime or not. Artificial person are also entitled to the guarantee, although they may be required to open their books of accounts for examination by the state in the exercise of police and taxing powers.

b. Warrant Requirement

(1) Requisites

1. Probable Cause217

2. Determination of probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce218

216 “The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce and particularly describing the place to be searched and the persons or things to be seized.” (Art. III, Sec. 2). 217 Such facts and circumstances antecedent to the issuance of the warrant that in themselves are sufficient to induce a cautious man to rely on them and act in pursuance thereof Unlike proof of probable cause for warrant of arrest, probable cause for a search warrant need not point to a specific offender. But in either case, it should be emphasized that what is required is not proof beyond reasonable doubt but merely probable cause. Evidence required to establish guilt is not necessary. 218 Art. III, Sec. 2 What the constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of the probable cause. In satisfying himself of the existence of the probable cause for the issuance of the warrant of arrest, the judge is not required to personally examined the complainant and his witnesses and on the basis thereof issue a warrant of arrest. He may also rely on the prosecutor’s report or if on the basis thereof, he finds no probable cause, he may disregard the prosecutor’s report and require the submission of supporting affidavits of witnesses to aid him in arriving at conclusion as to the existence of probable cause. (Soliven V Makasiar, 167 S 393) Where the court upheld that in the exercise of the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of the probable cause for the issuance of the warrant of arrest, the judge is not required to personally examine the complainant and his witnesses. (Cruz Jr. V People, 233 SCRA 439) In the preliminary examination for the issuance of a warrant of arrest, the court is not tasked to review in detail the evidence submitted during the preliminary investigation. It is sufficient that the judge

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3. Must refer to one Specific offense

4. Particularity of Description219

c. Warrantless Searches

Eight Instances of Valid Warrantless Searches and Seizures:

1. When the right is voluntarily waived220

2. When there is valid reason to “stop-and-frisk”221

3. Where the search and seizure is an incident to a lawful arrest222

4. Search of Vessels and Aircrafts223

5. Search of Moving Vehicles/Automobiles at borders or constructive borders224

6. Where prohibited articles are in plain view225

personally evaluates the report and supporting documents submitted by the prosecution in determining probable cause. 219 The court concluded in the case of People vs. Veloso, 42 P 886 that it is invariably recognized that the warrant for the apprehension of an unnamed party is void “except those causes where it contains a descriptio personae such as will enable the officer to identify the accused.” The description must be sufficient to indicate clearly the proper person upon whom the warrant is to be served. There is, however, a limit to John Doe warrants. Thus, a warrant for the arrest of fifty John Does is of the nature of a general warrant which does not satisfy the requirement of particularity of description. (Pangandaman v. Casar 159 S 599) The “scatter-‐shot warrant” charging more than one offense was declared null and void and the seizure of the money, which was not indicated in the warrant was held unlawful. 220 Requisites of Valid Waiver 1.That the right exists 2.That the persons involved had knowledge, either actual or constructive of the existence of such right 3.That the said person had an actual intention to relinquish the right 221 The vernacular designation of the right of a police officer to stop a citizen on the street, interrogate him and pat him for weapon(s). (Terry v. Ohio 392 US 1) 222 Rule: Apply strictly Rule 126, Sec. 13, 2000 Revised Rules on Criminal Procedure:

“A person lawfully arrested maybe searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant”.

223 Where a fishing vessel found to be violating fishery laws maybe seized without a warrant on two grounds: firstly, because they are usually equipped with powerful motors that enable them to elude pursuit and secondly, because the seizure would be an incident to a lawful arrest. (Roldan v. Arca, 65 SCRA 336) 224 Rule: Vehicles/automobiles may be searched only at borders or constructive borders. Search made within the interior of territory is justified only if there is probable cause. 225 Under this exception, the objects “falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and maybe introduced in evidence”. Rule: The discovery must be “Inadvertent” Thus, if an officer encounters prohibited objects only after poking around, the discovery would not be inadvertent.

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7. Inspection of buildings and other premises for the enforcement of fire, sanitary and building regulations

8. Search and Seizure under exigent and emergency circumstances226

9. Conduct of “areal target zoning” and “saturation drive” in the exercise of military powers of the President

10. Visual search at checkpoints

d. Warrantless Arrests

“A peace officer or a private person may, without a warrant, arrest a person:

1. When, in his presence, the person to be arrested has committed, is actually committing or is attempting to commit an offense227

2. When an offense has just been committed and he has probable cause to believe

based on personal knowledge of facts or circumstances that the person to be arrested committed it228

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. 229

226 Where the SC deemed it a bounded duty, in light of advertence thereto by the parties, to delve into the legality of the warrantless search conducted by the raiding team. The instant case falls under one of the exceptions to the prohibition against warrantless search. There was general chaos and disorder at that time because of the simultaneous and intense firing within the vicinity of the office and in the nearby Camp Aguinaldo which was under attack by rebel forces. The courts in the surrounding areas were obviously closed and for that matter, the building and houses therein were deserted. The raiding team had no opportunity to apply for and secure a search warrant from the courts. Under such urgency and exigency of the moment, a search warrant could lawfully be dispensed with. (People v. de Gracia, July 6, 1994) 227 The most common application of this in flagrante delicto rule is the buy-‐bust operation conducted to enforce the Dangerous Drugs Act. A buy-‐bust operation is a form of entrapment. The method is for an officer to pose as a buyer. He however neither instigates nor induces the accused to commit a crime because in these cases the seller has already decided to commit a crime. Since the offense happens right before the eyes of the officer, there is no need for a warrant either for the seizure of the goods or for the apprehension of the offender (People v. Burgos) 228 Otherwise known as the rule on hot pursuit arrests. In effecting this type of arrest, it is not enough that there is reasonable ground to believe that the person to be arrested has committed a crime. A crime must in fact or actually have been committed first. The fact of the commission of the offense must be undisputed. Law enforcement officers may not actually witness the execution of acts constituting the offense, but they must have direct knowledge or view of the crime right after its commission. They should know for a fact that a crime was committed. Also, the arresting officers themselves must have personal knowledge of facts showing that the person to be arrested, the suspect, performed the criminal act. 229 Sec. 5, Rule 113, 2000 Revised Rules of Criminal Procedure

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e. Administrative Arrests230

Warrant of Arrest may be issued by administrative authorities but only for purpose of carrying out a final finding of a violation of a law, cannot be for purpose of investigation.

There is an administrative arrest as an incident to deportation proceedings.

f. Drug, Alcohol and Blood Tests

A law requiring mandatory drug testing for students of secondary and tertiary schools is constitutional. It is within the prerogative of educational institutions to require, as a condition for admission, compliance with reasonable school rules and regulations and policies. To be sure, the right to enroll is not absolute; it is subject to fair, reasonable, and equitable requirements.

A law requiring mandatory drug testing for officer and employees of public and private offices is constitutional.

As the warrantless clause231 is couched and as has been held, “reasonableness” is

the/touchstone of the validity of a government search or/intrusion. And whether a search at issue hews to the reasonableness standard is judged by the balancing of the government mandated intrusion on the individual’s privacy interest against the promotion of some compelling state interest. In the criminal context, reasonableness requires showing probable cause to be personally determined by a judge. Given that the drug testing policy for employees and students for that matter under R.A. 9165 is in the nature of administrative search needing what was referred to in Veronia case as “swift and informal procedures,” the probable cause standard is not required or even practicable.232

230 Where the SC ruled that the constitutional provision against unreasonable searches and seizures does not require judicial intervention in the execution of a final order of deportation issued in accordance with law. It contemplates an order of arrest in the exercise of judicial power as a step preliminary to prosecution for a given offense of administrative action, not as a measure indispensable to carry out a valid decision by a competent official, such as legal order or deportation issued by the Commission on Immigration in pursuance of a valid legislation. The requirement for probable cause does not extend to deportation proceedings. (Morano v. Vivo, 20 S 562) 231 Sec. 2, Art. III of the Constitution 232 SJS v. DDB and PDEA, G.R. No. 157870, Nov. 3, 2008

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6. Privacy of Communications and Correspondence a. Private and Public Communications

Private Communications Public Communications An exchange of information between two individuals in a confidential relationship.

It usually means communication that isn't private to a certain group.233

b. Intrusion, when allowed

1. Upon lawful order of the court

2. When public safety or order requires otherwise as prescribed by law234

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

7. Freedom of Expression

a. Concept and Scope

(1) Prior Restraint235

Prior restraint means official governmental restrictions on the press or other forms of expression in advance of actual publication or dissemination. Its most blatant form is a system of licensing administered by an executive officer. Movie Censorship, although not placed on the same level as press censorship, also belongs to this type of prior restraint. The guarantee of

233 So, if you post a comment on a message board that anyone can access, that is public communication. If you say something in a public setting, where a lot of people could gain access to it, that is public communication. 234 Sec. 3, Art. III When intrusion is made without a judicial order, it would have to be based upon a government official’s assessment that public safety and order demand such intrusion. An executive officer can order intrusion when in his judgment and even without prior court approval, he believes that public safety or order so requires. Public order and safety -‐ the security of human lives, liberty and property against the activities of invaders, insurrectionists, and rebels. 235 censorship The constitution, as the paramount law, is exempt from the previous restraints by the executive and legislative branches. Therefore, constitutional guaranties like liberty of the press are superior over legislative acts or law.

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freedom of expression also means a limitation on the power of the state to impose subsequent punishment.

(2) Subsequent Punishment

Without this assurance, the individual would hesitate to speak for fear that he might be held to account for his speech, or that he might be provoking the vengeance of the officials he may have criticized. However, the freedom is not absolute, and may be properly regulated in the interest of the public. Accordingly, the state may validly impose penal and/or administrative sanctions, such as in the following:

1. Libel236

2. Obscenity237

3. Criticism of Official Conduct238

b. Content-Based and Content-Neutral Regulations

Content-‐based restraint Content-‐neutral regulation

They are given the strictest scrutiny in light of their inherent and invasive impact.

Substantial governmental interest is required for their validity, and they are not subject to the strictest form of judicial scrutiny rather only an intermediate approach-‐ somewhere between the rationality that is required of a law and the compelling interest standard applied to content-‐based restrictions.

236 A public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, conditions, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical persons, or to blacken the memory or one who is dead. 237 The determination of what is obscene is a judicial function 238 Where the court said that a publication that tends to impede, embarrass or obstruct the court and constitutes a clear and present danger to the administration of justice is not protected by the guarantee of press freedom and punishable by contempt. (In re: Atty. Jurado) A Senator was punished for contempt for having attacked a decision of the Supreme Court which he called incompetent and narrow minded, and announcing that he would file a bill for its reorganization. (In re Sotto)

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(1) Tests (2) Applications

Clear and Present Danger Test

Whether the words are used in such circumstance and of such a nature as to create a clear and present danger that they will bring about the substantive evils that the state has the right to prevent. It is a question of proximity and degree.239

Dangerous Tendency Test

If the words uttered create a dangerous tendency of an evil which the State has the right to prevent. 240

Balancing of Interests test

When particular conduct is regulated in the interests of public order, and the regulations result in an indirect, conditional, partial abridgment of speech, the duty of the courts is to determine which of the two conflicting interests demands the greater protection under the particular circumstances presented.241

239 Schenck v. US, 249 US 47, 1919 Four instances where clear and present danger test applies: a. speeches that advocate dangerous ideas b. speeches that provoke a hostile audience reaction c. speeches out of contempt d. release of information that endangers free trial The substantive evil must be extremely serious and the degree of immense extremely high before utterances can be punished. “Clear” mean causal connection between danger of substantive evil arising from utterance questioned; “Present” refers to time-‐imminent and immediate danger; Thus, danger must not only be probable but very likely inevitable. 240 In the early stages of Philippine jurisprudence, the accepted rule was that speech may be curtailed or punished when it “creates a dangerous tendency which the state has the right to prevent”. This standard has been labeled the “Dangerous Tendency Rule”. All it requires, for speech to be punishable, is that there be a rational connection between the speech and the evil apprehended. In other words, under this rule, the constitutionality of a statute curtailing speech is determined in the same manner that the constitutionality of any statute is determined, namely by answering the question whether a statute is “reasonable.” That if the words uttered create a dangerous tendency of an evil which the state has the right to prevent, then such words are punishable. It is sufficient if the natural tendency and the probable effect of the utterance were to bring about the substantive evil that the legislative body seeks to prevent. Cabansag V. Fernandez, 102 Phil 152 241 This is a resolution for reconsideration of Gonzales, a member of the Philippine bar who imposed with a penalty of indefinite suspension for imposing charges of impartially and corruption to the Supreme Court. The court held that the “clear and present danger rule” is not the only test which has been recognized and applied by the courts. Another restrictions for permissible limitation on freedom of speech and of the

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O’Brien Test

A governmental regulation is sufficiently justified if: a. It is within the constitutional power of the Government

b. It furthers an important or substantial governmental interest c. The governmental interest is unrelated to the suppression of free expression d. If the incidental restriction on alleged freedom is no greater than is essential to that interest.

Grave-‐but-‐Improbable Danger test

This test was meant to supplant the clear and present danger test.

Direct Incitement test

It criticizes the clear and present danger test for being too dependent on the specific circumstances of each case.

c. Facial Challenges and the Overbreadth Doctrine

Facial Challenge

A manner of challenging a statute in court, in which the plaintiff alleges that the statute is always, and under all circumstances, unconstitutional, and therefore, void.

Overbreadth Doctrine

Permits a party to challenge a statute even though, as applied to him, it is not unconstitutional, but it might be if applied to others not before the Court whose activities are constitutionally protected.

press is of the “balancing of interests test”, which requires a court to take conscious and detailed consideration of the interplay of interests observable in a given situation (Zaldivar vs. Sandiganbayan, 170 SCRA 1)

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d. Tests242

e. State Regulation of Different Types of Mass Media

The ownership and management of mass media shall be limited to citizens of the Philippines, or to corporations, cooperatives or associations, wholly-owned and managed by such citizens.

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

The advertising industry is impressed with public interest, and shall be regulated by law for the protection of consumers and the promotion of the general welfare.

Only Filipino citizens or corporations or associations at least seventy per centum (70%) of the capital of which is owned by such citizens shall be allowed to engage in the advertising industry.

The participation of foreign investors in the governing body of entities in such industry shall be limited to their proportionate share in the capital thereof, and all the executive and managing officers of such entities must be citizens of the Philippines.243

f. Commercial Speech Communication244 that involves only the commercial interests of the speaker and the audience.245

Communication which no more than proposes a commercial transaction.246 242 supra 243 Sec. 11, Art. XVI 244 such as advertising and marketing 245 Black’s Law Dictionary, 9th Ed. 246 Advertisement of goods or of services is an example To enjoy protection: 1. It must not be false or misleading; and 2. It should not propose an illegal transaction. May be regulated if: 1. Government has a substantial interest to protect; 2. The regulation directly advances that interest; and 3. 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)

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g. Private v. Government Speech Government Speech Private Speech Where the/government may advance or restrict its own speech in a manner that would clearly be forbidden were it regulating the speech of private citizen.247

The right of a person to freely speak one’s mind is a highly valued freedom in a republican and democratic society.248

h. Heckler’s Veto249

Occurs when an acting party's right to freedom of speech is curtailed or restricted by the government in order to prevent a reacting party's behavior.250 The common example is that of demonstrators251causing a speech252 to be terminated in order to preserve the peace.

8. Freedom of Religion

a. Non-Establishment Clause Prohibits the establishment of any religion.

1) Concept and basis

The State cannot set up a church, nor pass laws which aid one religion, aid all religion, or prefer one religion over another nor force nor influence a person to go to or remain away from Church against his will or force him to profess a belief or disbelief in any religion. This reinforces Sec. 6, Art. II, on the separation of Church and State.

The intermediate views are chiefly two: (1) the non-establishment clause prohibits only direct support of institutional religion but not support indirectly accruing to churches and church agencies through support given to members; (2) both direct and indirect aid to religion are prohibited but only if the support involves preference of one religion over another or preference of religion over irreligion.

247 doctrine was implied in Wooley v. Maynard in 1971 248 Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002)) 249 The term was coined by University of Chicago professor of law Harry Kalven. 250 The term Heckler’s Veto was coined by University of Chicago professor of law Harry Kalven. It may be in the guise of a permit requirement in the holding of rallies, parades, or demonstrations conditioned on the payment of a fee computed on the basis of the cost needed tokeep order in view of the expected opposition by persons holding contrary views. (Gorospe, 2006, citing Forsyth County v. Nationalist Movement, 315 U.S. 568, 1942) 251 reacting party 252 given by the acting party

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While there is no unanimity in non-establishment as a political principle, there is substantial agreement on the values non-establishment seeks to protect. There are two: voluntarism and insulation of the political process from interfaith dissension.253

2) Acts permitted and not permitted by the clause

Acts permitted Acts not permitted a. Exemption from taxation of properties actually, directly and exclusively used for religious purposes.254

b. Citizenship requirement of ownership of educational institutions, except those established by religious groups and mission boards255

c. Optional religious instruction in public elementary and high schools: at the option expressed in writing by the parents or guardians, religious instruction taught within regular class hours by instructors designated or approved by the religious authorities of the religion to which the children or wards belong without additional cost to the government256

a. A religious sect or denomination cannot be registered as a political party.258

b. No sectoral representatives from the religious sector.259 c. Prohibition against the use of public money or property for the benefit of any religion, or of any priest, minister or ecclesiastic.260

253 In effect, therefore, what non-‐establishment calls for is government neutrality in religious matters. Such government neutrality may be summarized in four general propositions: 1. Government must not prefer one religion over another or religion over irreligion because such preference would violate voluntarism and breed dissension; 2. Government funds must not be applied to religious purposes because this too would violate voluntarism and breed interfaith dissension; 3. Government action must not aid religion because this too can violate voluntarism and breed interfaith dissension; 4. Government action must not result in excessive entanglement with religion because this too can violate voluntarism and breed interfaith dissension. 254 Sec. 28 (3), Art. VI; see Bishop of Nueva Segovia vs. Provincial Board, 51 Phil. 352 255 Sec. 4 (2), Art. XIV 256 Sec. 3 (3), id. Cases/Doctrines (not in violation of non-‐establishment clause): The expropriation of the birthplace of Felix Manalo, founder of Iglesia ni Kristo, for the purpose of preserving it as a historical landmark, was upheld as for “public use” and any benefits that would reap the adherents of Iglesia would only be incidental to the public historical purpose. (Manosca vs. CA) There is nothing unconstitutional or illegal in holding a fiesta, as it is a socio-‐religious affair, and having a patron saint for the barrio, then any activity intended to facilitate the worship of the patron saint, such as the acquisition and display of his image, cannot be branded as illegal. (Garces vs. Estenzo) Issuance of religious commemorative stamps as giving merely incidental benefits to religion is upheld. (Aglipay vs. Ruiz)

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iv. Appropriation allowed where the minister or ecclesiastic is employed in the armed forces, in a penal institution, or in a government-owned orphanage or leprosarium.257

3) Test

Lemon test

It is a test to determine whether an act of the government violates the non-‐establishment clause. To pass the test, a government act or policy must:

1. Have a secular purpose;

2. Not promote or favor any set of religious beliefs or religion generally; and 3. Not get the government too closely involved261 with religion.

b. Free Exercise Clause

Guarantees the free exercise of religion.

Embraces two (2) concepts:

1. Freedom to Believe – absolute262

2. Freedom to act according to one’s beliefs – subject to state regulation

257 Sec. 29 (2), Art. VI 258 Sec. 2 (5), Art. IX-‐C 259 Sec. 5 (2), Art. VI 260 Cases/Doctrines (in violation of non-‐establishment clause): State sponsored Bible readings and prayers in public schools have been invalidated for violations of Sec. 5. (School District v. Schempp) Salary payments and reimbursements for secular textbooks and other instructional materials under a system involving close government supervision were invalidated (Lemon v. Kurtzman) 261 “entangled” 262 The absoluteness of the freedom to believe carries with it the corollary that the government, while it may look into the good faith of a person, cannot inquire into a person’s religious pretensions. Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs. The moment however, belief flows over into action, it becomes subject to government regulation.

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c. Test

Clear and Present Danger Test263

Compelling State Interest Test

It is the test used to determine if the interests of the State are compelling enough to justify infringement of religious freedom. The state has the burden to justify any possible sanction. This involves three (3) steps: i. The courts should look into the sincerity of the religious belief without inquiring into the truth of the belief. ii. The state has to establish that its purposes are legitimate and compelling iii. The state used the least intrusive means possible.264 It refers to a method of determining the constitutional validity of a law. Under this test, the government’s interest is balanced against the individual’s constitutional right to be free of law. However, a law will be upheld only if the government’s interest is strong enough.265

Conscientious Objector Test

Test to determine if objection is based on moral or or religious grounds.266

263 supra 264 Estrada vs. Escritor, 491 SCRA 1, Aug. 4, 2003 265 uslegal.com In Howe v. Brown, 319 F. Supp. 862 (N.D. Ohio 1970), it was held that, the compelling-‐state-‐interest-‐test is mostly applied in all voting rights cases and equal protection cases. It is also applied when a disputed law requires strict scrutiny. 266 (as to service in the armed forces or to bearing arms)

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9. Liberty of Abode and Freedom of Movement267

“The liberty of Abode and of changing the same within the limits prescribed by law shall not be impaired.268

a. Limitations

Liberty of abode Right to travel Upon lawful order of the court and within the limits prescribed by law

1. In the interest of national security, public safety, public health, as may be provided by law;

2. Any person on bail.269

b. Right to travel

It may be impaired even without the court order, but the appropriate executive officer is not assumed with arbitrary discretion to impose limitations. He can impose limits only on the basis of “national security, public safety or public health” and “as may be provided by law.”

Impairment of this liberty, moreover, must be subject to judicial review as even measures taken by the executive are subject to judicial review. The constitution itself sets down the measure of allowable impairment: necessity “in the interest of national security, public safety or public health” as well as explicit provisions of statutory law or the Rules of Court.270

267 It may be impaired even without the court order, but the appropriate executive officer is not assumed with arbitrary discretion to impose limitations. He can impose limits only on the basis of “national security, public safety or public health” and “as may be provided by law”. Impairment of this liberty, moreover, must be subject to judicial review as even measures taken by the executive are subject to judicial review. The constitution itself sets down the measure of allowable impairment: necessity “in the interest of national security, public safety or public health” as well as explicit provisions of statutory law or the Rules of Court. Thus, for instance, a person who is out of bail may be prevented from leaving the country. The right to travel should not be “construed as delimiting the inherent power of the courts to use all means necessary to carry their orders into effect in criminal cases pending before them. When by law jurisdiction is conferred on a Court or judicial officer, all auxiliary writs, process and other means necessary to carry it into effect may be employed by such court or officer. 268 Liberties guaranteed: 1. Liberty of Abode -‐ freedom to choose and change one’s place of abode 2. Right to Travel -‐ freedom to travel both within the country and outside 269 A person admitted to bail may be prevented by a court from leaving the country as this is a necessary consequence of the function of a bail bond which is to secure a person’s appearance when needed. (Manotoc Jr. v. CA) 270 Thus, for instance, a person who is out of bail may be prevented from leaving the country. The right to travel should not be “construed as delimiting the inherent power of the courts to use all means necessary to carry their orders into effect in criminal cases pending before them. When by law jurisdiction is conferred on a court or judicial officer, all auxiliary writs, process and other means necessary to carry it into effect may be employed by such court or officer.

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1) Watch-list and hold departure orders Watch list is a list of persons or things to watch for possible action in the future. Hold departure order is applicable to those with criminal charges and facing prosecution, or when the interest of national security, public health or safety is at stake, or to regulate immigration.271

c. Return to One’s County

Everyone has the right to leave any country, including his own and to return to his country.272

No one shall be arbitrarily deprived of the right to enter his own country.273

Where the issue involves is whether a person facing a criminal indictment and provisionally released on bail have an unrestricted right to travel. The court ruled in the negative. It emphasized that a court has the power to prohibit a person admitted to bail from leaving the Philippines. This is a necessary consequence of the nature and function of a bail bond. The condition imposed upon petitioner to make himself available at all times whenever the court is required his presence is a valid restrictions on his right to travel. Thus, the trial court may validly refuse to grant the accused permission to travel abroad, even if the accused is out of bail. (Manotoc v. CA, 142 SCRA 149) 271 HDO may be issued by the Secretary of Justice against the following under certain instances: 1. Against the accused, irrespective of nationality, in criminal cases falling within the jurisdiction of lower courts (courts below the Regional Trial Court). Those accused who have jumped bail or are fugitives from justice are included in this category. 2. Against the alien whose presence is required either as a defendant, respondent or witness in a civil or labor case pending litigation, or any case before a quasi-‐judicial or administrative agency of the government. 3. Against any person, upon the request of the Secretary of Justice, Head of the Department of Government, head of the constitutional body or commission, Chief Justice of the Supreme Court for the Judiciary, the Senate President or the House Speaker for the Legislature, when the adverse party is the government or any of its agencies or instrumentalities, or in the interest of national security, public safety or public health. Also, children of the parents facing trial for Legal Separation, Annulment or Declaration of Nullity of Marriage may not be allowed to leave the Philippines while the case is ongoing without prior approval of the Family Court. The travel of these children may be restrained by a proper issuance of Hold Departure Order. 272 Art. 13(2), Universal Declaration of Human Rights 273 Art. 12(4), Covenant on Civil and Political Rights

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10. Right to Information274 a. Limitations

i. National Security matters and intelligence information275

ii. Trade or Industrial Secrets and banking transactions276

iii. Criminal matters277

iv. Other Confidential information.278

b. Publication of Laws and Regulations Mysterious pronouncements and rumored rules cannot be recognized as binding unless their existence and contents are confirmed by a valid publication intended to make full disclosure and give proper notice to the people.

c. Access to Court Records The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.279 274 Information must be a matter of public concern, which embraces a broad spectrum of subjects which the public may want to know, either because these directly affect their lives or simply because such matters arouse the interest of an ordinary citizen The right to information is a “public right”. Hence, any citizen has “standing” to assert the right to information 275 This jurisdiction recognizes the common law holding that there is a governmental privilege against public disclosure with respect to state secrets regarding military, diplomatic and other national security matters. Likewise, information on inter-‐government exchanges prior to the conclusion of treaties and executive agreements may be subject to reasonable safeguards for the sake of national interest; 276 pursuant to the Intellectual Property Code (R.A. No. 8293,approved on June 6,1997 & other related laws) and Banking Transactions (pursuant to the Secrecy of Bank Deposits Act (R.A. No. 1405, as amended)]. 277 such as those relating to the apprehension, the prosecution and the detention of criminals which courts may not inquire into prior to such arrest, detention and prosecution; 278 The Ethical Standards Act (R.A. 6713, enacted on Feb.20,1989) further prohibits public officials and employees from using or divulging “confidential or classified information officially known to them by reason of their office and not made available to the public”. (Sec, 7[c], ibid.). Other acknowledged limitations to information access include diplomatic correspondence, closed door Cabinet meetings and Executive sessions of either house of Congress, as well as the internal deliberations of the Supreme Court. (Chavez v. PCGG,299 S 744) 279 Art. III, Sec. 7 The constitutional right, however, does not mean that every day is an open house in public offices. The right given by the Constitution is “subject to such limitations as may be provided by law”. Thus, while access to official records may not be prohibited, it certainly may be regulated. The regulation can come either from statutory law and from what the Supreme Court has called the “inherent power [of an officer] to control his office and the records under his custody and to…. Exercise [same discretion] as to the

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d. Right to Information Relative to (1) Government Contract Negotiations

The right to information contemplates inclusion of negotiations leading to the consummation of the transaction. Otherwise, the people can never exercise the right if no contract is consummated, or if one is consummated, it may be too late for the public to expose its defects. However, the right only affords access to records, documents and papers, which means the opportunity to inspect and copy them at his expense. The exercise is also subject to reasonable regulations to protect the integrity of public records and to minimize disruption of government operations.280

(2) Diplomatic Negotiations

Recognized as privileged in this jurisdiction. It bears emphasis, however, that such privilege is only presumptive. For as Senate v. Ermita holds, recognizing a type of information as privileged does not mean that it will be considered privileged in all instances. Only after a consideration of the context in which the claim is made may it be determined if there is a public interest that calls for the disclosure of the desired information, strong enough to overcome its traditionally privileged status.281

11. Right of Association

The right to form associations is a general right of liberty; it is an aspect of freedom of contract.

It shall not be impaired without due process of law.282

manner in which persons desiring to inspect, examine or copy the record may exercise their rights. The question then boils down to a determination of the scope of official regulatory discretion. In determining the allowable scope of official limitation on access to official records, it is important to keep in mind that the two sentences of Sec.7 guarantee only one general right, that is, the right to information on matters of public concern. The right of access to official record is given as an implementation of the right to information. Thus, the right to information on matters of public concern is both the purpose and the limit of the right of access to public documents. Thus, too, regulatory discretion must include both authority to determine the manner of access to them. 280 Chavez vs. PEA and Amari, G.R. No. 133250, July 9, 2002 281 Akbayan, et al. vs. Thomas Aquino, et al., G.R. No. 170516, July 16, 2008 282 Also guarantees the right not to join an association.

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12. Eminent Domain283 a. Concept

This is also known as the power of expropriation, it is described as the highest and most exact idea of property remaining in the government that may be acquired for some public purpose through a method in the nature of a compulsory sale to the state.

b. Expansive Concept of "Public Use"

Any use directly available to the general public as a matter of right and not merely of forbearance or accommodation. It does not matter whether the direct use of the expropriated property by the public be for free or for a fee. Any member of the general public, as such, can demand the right to use the converted property for his direct and personal convenience. This cover uses which, while not directly available to the public, redound to their indirect advantage or benefit.

c. Just Compensation (1) Determination

The full and fair equivalent of the property taken; it is the fair market value of the property, to which must be added the consequential damages, if any, minus the consequential benefits, if any, but in no case shall the consequential benefits exceed the consequential damages.284

(2) Effect of Delay

Without prompt payment, compensation cannot be considered just, for the property owner is made to suffer the consequences of being immediately deprived of his land while being made to wait for a decade or more before actually receiving the amount necessary to cope with his loss.

d. Abandonment of Intended Use and Right of Repurchase

The property owner’s right to repurchase the property depends upon the character of the title acquired by the expropriator, i.e., if land is expropriated for a particular purpose with the condition that when that purpose is ended or abandoned, the property shall revert to the

283 It is well settled that eminent domain is an inherent power of the State that need not be granted even by the fundamental law. Se. 9, Art. III of the Constitution, in mandating that private property shall not be taken without just compensation, merely imposes a limit on the government’s exercise of this power and provides a measure of protection to the individual’s right to property. An ejectment suit should not ordinarily prevail over the State’s power of eminent domain. (Republic v. Tagle, G.R. No. 129079, December 2, 1998) 284 The ascertainment of what constitutes just compensation for property taken in eminent domain cases is a judicial prerogative, and PD 76, which fixes payment on the basis of the assessment by the assessor or the declared valuation by the owner, is unconstitutional. (EPZA v. Dulay, 148 SCRA 305)

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former owner, then the former owner can re-acquire the property. In this case, the terms of the judgment in the expropriation case were very clear and unequivocal, granting title to the lot in fee simple to the Republic. No condition on the right to repurchase was imposed.285

e. Miscellaneous Application

Private property shall not be taken for public use without just compensation.286

The State may, in the interest of national welfare or defense, establish and operate vital industries and, upon payment of just compensation, transfer to public ownership utilities and other private enterprises to be operated by the Government.287

The State shall, by law, undertake an agrarian reform program founded on the right of farmers and regular farm workers, who are landless, to own directly or collectively the lands they till or, in the case of other farm workers, to receive a just share of the fruits thereof. To this end, the State shall encourage and undertake the just distribution of all agricultural lands, subject to such priorities and retention limits as the Congress may prescribe, taking into account ecological, developmental, or equity considerations, and subject to the payment of just compensation. In determining retention limits, the State shall respect the right of small landowners. The State shall further provide incentives for voluntary land- sharing.288

The State shall, by law, and for the common good, undertake, in cooperation with the private sector, a continuing program of urban land reform and housing which will make available at affordable cost decent housing and basic services to underprivileged and homeless citizens in urban centers and resettlement areas. It shall also promote adequate employment opportunities to such citizens. In the implementation of such program the State shall respect the right of small property owners.289

13. Contract Clause

No franchise, certificate, or any other form of authorization for the operation of a public utility shall be granted except to citizens of the Philippines or to corporations or associations organized under the laws of the Philippines, at least sixty per centum of whose capital is owned by such citizens; nor shall such franchise, certificate, or authorization be exclusive in character or for a longer period than fifty years. Neither shall any such franchise or right be granted except under the condition that it shall be subject to amendment, alteration, or repeal by the Congress when the common good so requires. The State shall encourage equity participation in public utilities by the general public. The participation of foreign investors in the governing body of any public utility enterprise shall be limited to their proportionate share in its capital, and all the executive and managing officers of such corporation or association must be citizens of the Philippines.290

285 Mactan-‐Cebu International Airport Authority vs. Court of Appeals, G.R. No. 139495, November 27, 2000 286 Art. III, Sec. 9 287 Art. XII, Sec. 18 288 Art. XIII, Secs. 4 & 9 289 Sec. 9 290 Sec. 11

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a. Contemporary Application of the Contract Clause The contract clause protects public contracts, including onerous franchises and privileges granted by the state. The charter itself constitutes a contract with the state. The reservation was made in Article XII, Section 11 of the Constitution. With or without a reservation clause, franchises are subject to alterations through a reasonable exercise of the police power. They are also subject to alterations by the power to tax which like police power, cannot be contracted away.

14. Legal Assistance and Free Access to Courts Free access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any person by reason of poverty.291

15. Rights of Suspects292

i. Right to Remain Silent293

ii. Right to a competent and independent counsel, preferably of his own choice

iii. Right to be provided with the services of counsel if he cannot afford the services of one294

iv. Right to be informed of such rights.295

291 Ibid. 292 Art. III, Sec. 12 293 Under the right against self-‐incrimination in Sec. 17, only an accused has the absolute right to remain silent. A person who is not an accused may assume the stance of silence only when asked an incriminating question. Under Sec. 12, however, a person under investigation has the right to refuse to answer any question. His silence, moreover, may not be used against him. 294 RA 7438, Sec. 2(a) provides that “…. Any person under arrested, detained or under custodial investigation shall be at all times be assisted by counsel. Where the court ruled that the right to counsel is intended to preclude the slightest coercion or would lead the accused to admit false. The lawyer, however, should never prevent an accused from freely and voluntarily telling the truth. (People vs. Enanoria) Where the court ruled that the Constitution requires that counsel be independent. Obviously, he cannot be a special counsel, public or private prosecutor, counsel of the police, or a municipal attorney whose interest is admittedly adverse to the accused. (People vs. Bandula 232 SCRA 566) The right to counsel does not mean the accused must personally hire his own counsel. The constitutional requirement is satisfied when a counsel is engaged by acting on behalf of the person under investigation or appointed by the court upon petition by said persons or by someone on his behalf. 295 The right guaranteed here is more than what is shown in television shows where the police routinely reads out the rights from a note card. As People V Rojas 147 S 169 put it: “When the Constitution requires a person under investigation to be informed of his right to remain silent and to counsel, it must be presumed to contemplate the transmission of a meaningful information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle. As a rule, therefore, it would not be sufficient for a police officer just to repeat to the person under

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a. Availability Available only “under custodial investigation” for the commission of an offense.”296

b. Requisites

1. The person in custody must be informed at the outset in clear and unequivocal terms

that he has a right to remain silent.

2. After being so informed, he must be told that anything he says can and will be used against him in court.

3. He must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during the interrogation.

4. He should be warned that not only has he the right to consult with a lawyer but also

that if he is indigent, a lawyer will be appointed to represent him.

5. Even if the person consents to answer questions without the assistance of counsel, the moment he asks for a lawyer at any point in the investigation, the interrogation must cease until an attorney is present.

6. If the foregoing protections and warnings are not demonstrated during the trial to have been observed by the prosecution, no evidence obtained as a result of the interrogation can be used against him.

c. Waiver

These rights cannot be waived except in writing and in the presence of his counsel.297

investigation the provisions of the Constitution. He is not only duty-‐bound to tell the person the rights to which the latter is entitled; he must also explain their effects in practical terms.” In other words, the right of a person under investigation to be informed implies a correlative obligation on the part of the police investigator to explain, and contemplates an effective communication that results in understanding what is conveyed. Short of this, there is denial of the right, as it cannot then truly be said that the person has been informed of his rights. 296 Jurisprudence under the 1987 Constitution has consistently held the stricter view, that the rights begin to be available only when the person is already in custody. As Justice Regalado emphasized in People V Marra, 236 S 565: “Custodial investigation involves any questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. It is only after the investigation ceases to be a general inquiry into an unsolved crime and begins to focus on a particular suspect, the suspect is taken into custody, and the police carries out a process of interrogations that lends itself to eliciting incriminating statements that the rule begins to operate.” Custodial investigation begins the moment an incriminating question is asked. But note RA 7438 which defines “moment of invitation” as start of custodial investigation. R.A. 7438, “Custodial investigation” shall include the practice of issuing an “invitation” to a person who is investigated in connection with an offense he is suspected to have committed, without prejudice to the liability of the “inviting” officer for any violation of law.

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16. Rights of the Accused298 a. Criminal Due Process

a. Accused to be heard in court of competent jurisdiction;

b. Accused proceeded against under orderly processes of law;

c. Accused given notice and opportunity to be heard;

d. Judgment rendered was within the authority of constitutional law.

b. Bail299

All persons in custody shall be admitted to bail as a matter of right, with sufficient sureties, or be released on recognizance as prescribed by law 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.300

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, under certain circumstances.301

297 Art. III, Section 12 (1), last sentence The right to counsel during custodial investigation is not waived by reason of failure to make a timely objection before plea. There can only be a valid waiver of the right if such right is in writing and in the presence of counsel as mandated by Art. III, Section 12 of the 1987 Constitution and the pertinent provisions of R.A. 7438. (People vs. Buluran, et al., G.R. No. 113940, February 15, 2000). Even if the confession of the accused is gospel truth, if it was made without the assistance of counsel, it is inadmissible in evidence regardless of the absence of coercion, or even if it was voluntary given (People vs. Camat, et al., G.R. No. 112262, April 2, 19960). This refers to custodial investigation only. 298 Ibid, Sec. 14 299 The 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. (see Sec. 1, Rule 114, Revised Rules of Criminal Procedure). 300 Rule 114, Sec. 4, RoC 301 (a) that the accused is a recidivist, quasi-‐recidivist, or habitual delinquent, or has committed the crime aggravated by the circumstance of reiteracion; (b) that the accused is found to have previously escaped from legal confinement, evaded sentence, or has violated the conditions of his bail without valid justification; (c) that the accused committed the offense while on probation, parole, or under conditional pardon;

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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.302

c. Presumption of Innocence

In all criminal prosecutions, the accused shall be presumed innocent until the contrary is

proved303 xxx Every circumstance favoring the innocence of the accused must be taken into account.304

d. Right to be Heard

Three (3) specific rights:

1. The right to present evidence305 and to be present at the trial,306

2. The right to be assisted by counsel,

3. The right to compulsory process to compel the attendance of witnesses in his behalf. e. Assistance of Counsel307

The accused is amply accorded legal assistance extended by a counsel who commits

himself to the cause of the defense and acts accordingly; an efficient and truly decisive legal assistance, and not simply a perfunctory representation.308 (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. (Rule 114, Sec. 5) 302 Ibid, Sec. 7 303 Se. 14 (2), Art. III 304 The proof against him must survive the test of reason; the strongest suspicion must not be permitted to sway judgment. (People v. Austria, 195 SCRA 700) 305 The right to present evidence includes the right to testify in one’s favor and the right to be given time to call witnesses. If accused of two offenses, he is entitle to trial of each case, and its error for the court to consider in one case the evidence adduced against him in another. The substantial rights of the accused should not be impaired because of his counsel’s anxiousness to have him promptly acquitted. 306 An important facet of the right to be heard is the right to be present at the trial. “In all criminal prosecutions the accused has an absolute right to be personally present during the entire proceedings from arraignment to sentence if he so desires.” It has in fact been held that, because of the new provision allowing trial in absentia, the right of the accused to be present may be waived totally except when his presence is needed for purposes of identification. 307 Right to counsel during the trial is not subject to waiver (Flores v. Ruiz, 90 SCRA 428). 308 People v. Bermas, G.R. No. 120420, April 21, 1999

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f. Right to be Informed 1. To furnish the accused with such a description of the charge against him as will enable him to make his defense

2. To avail himself of his conviction or acquittal for protection against further prosecution for the same cause

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.309

Description, not designation of the offense, is controlling. The real nature of the crime charged is determined from the recital of factsin the information. It is neither determined based on the caption or preamble thereof norfrom the specification of the provision of the law allegedly violated.

g. Right to Speedy, Impartial and Public Trial

Speedy Impartial Public Free from vexatious, capricious and oppressive delays;

Accused entitled to cold neutrality of an impartial judge.

To prevent possible abuses which may be committed against the accused.

h. Right of Confrontation310

Closely connected with and equally essential as the right to be heard is the right “to meet the witness face to face” or as Rule 115, Sec. 1(f) of the New Rules of Court expresses it, “to confront and cross-examine the witness against him at the trial”.

The right has a twofold purpose:

1. to afford the accused an opportunity to test the testimony of the witness by cross-examination,

2. to allow the judge to observe the deportment of the witness

309 US v. Karelsen G.R. No. 1376, Jan. 21, 1904 310 Witnesses not submitted for cross-‐examination not admissible as evidence; Right to cross-‐examination may be waived. Closely connected with and equally essential as the right to be heard is the right “to meet the witness face to face” or as Rule 115, Sec. 1(f) of the New Rules of Court expresses it, “to confront and cross-‐examine the witness against him at the trial”. The right has a twofold purpose: 1. to afford the accused an opportunity to test the testimony of the witness by cross-‐examination, 2. to allow the judge to observe the deportment of the witness

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i. Compulsory Process Equally important as the right to counsel is the right to compulsory process for the attendance of the witnesses. The accused, however, may not invoke this right on appeal if he made no effort during the trial to avail himself of it.

j. Trials in Absentia311

Three (3) conditions must concur:

1. Accused has been arraigned312

2. Notice of the trial was duly served to him and properly returned

3. His failure to appear is unjustified

17. Writ of Habeas Corpus313

A writ issued by court directed to person detaining another, commanding him to produce the body of the prisoner at designated time and place, with the day and cause of his capture and detention, to do, to submit to, and to receive whatever court or judge awarding writ shall consider in his behalf.314

18. Writ of Amparo,315 habeas data, and kalikasan

Writ of Amparo A remedy available to any person whose right to life, liberty and security is violated or

threatened with violation by an unlawful act or omission of a public official or employee, or of a

311 Trial in Absentia can also take place when the accused voluntarily waives his right to be present. Restrictive Conditions for allowing Waiver: The right may be waived “Provided that after arraignment he may be compelled to appear for the purpose of identification of witnesses of the prosecution, or provided he unqualifiedly admits in open court after his arraignment that he is the person named as the defendant in the case on trial. Reason for requiring the presence of the accused, despite his waiver, is, if allowed to be absent in all the stages of the proceeding without giving the People’s witnesses the opportunity to identify him in court, he may in his defense say that he was never identified as the person charged in the information and therefore, is entitled to acquittal.” Thus, for an accused to be excused from attending trial, it is not enough that he vaguely agrees to be identified by witnesses in his absence. He must unqualifiedly admit that every time a witness mentions a name by which he is known, the witness is to be understood as referring to him. 312 The presence of the accused at arraignment is an absolute requisite for any trial to proceed, the reason being that it is at arraignment that the accused is informed of the nature and cause of the accusation against him and it is then that the trial court acquires jurisdiction over the person 313 Habeas corpus lies only where the restraint of a person’s liberty has been judicially adjudged to be illegal or unlawful (In Re: Petition for Habeas Corpus of Wilfredo S. Sumulong-‐Torres, 251 SCRA 709). 314 Nachura, Reviewer in Political Law, p. 135 315 It is an effective and inexpensive instrument for the protection of constitutional rights (Azcuna, The Writ of Amparo: A Remedy to Enforce Fundamental Rights, 37 Ateneo L.J. 15 (1993).

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private individual or entity. The writ shall cover extralegal killings and enforced disappearance or threats thereof. Writ of Habeas Data A remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party. Writ of Kalikasan It is available to a natural or juridical person, entity authorized by law, people’s organization, non-governmental organization, or any public interest group accredited by or registered with any government agency, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated, or threatened with violation by an unlawful act or omission of a public official or employee, or private individual or entity, involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces.

18. Self-Incrimination Clause

No person shall be compelled to be a witness against himself.316

a. Scope and Coverage Available not only in criminal proceedings, but also in all other government proceedings, including civil actions and administrative or legislative investigations. May be claimed not only by accused but by a witness to whom an incriminating question is addressed.

(1) Foreign Laws b. Application

Applies only to testimonial compulsion317 and production of documents, papers and chattels in court except when books of account are to be examined in exercise of power of taxation and police power.

316 Sec. 17 317 The Kernel of the right is not against all compulsion but testimonial compulsion only; i.e. extracting from the lips of the accused an admission of his guilt. Hence, a person may be compelled to submit to fingerprinting, photographing and paraffin testing.

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c. Immunity Statutes

Transactional Immunity318 Use and Fruit Immunity The testimony of any person or whose possession of documents or other evidence necessary or convenient to determine the truth in any investigation conducted is immune from criminal prosecution for an offense to which such compelled testimony relates.

Prohibits the use of a witness’ compelled testimony and its fruits in any manner in connection with the criminal prosecution of the witness.319

19. Involuntary Servitude and Political Prisoners

Involuntary Servitude

General Rule: No involuntary Servitude shall exist.

Except:

a. as punishment for a crime whereof one has been duly convicted320 b. service in defense of the state321 c. naval enlistment322 d. posse comitatus323 e. return to work order in industries affected with public interest324 and f. patria potestas325

Political Prisoners

No person shall be detained by reason of his political beliefs or aspirations.326

318 Art. XIII, Sec. 18 (8) 319 Galman v. Pamaran, 138 SCRA 274 320 Art. III, Sec. 18(2) 321 Art. II, Sec 4 322 Robertson v. Baldwin, 165 US 275 323 US v. Pompeya, 31 Phil. 245 324 Kaisahan ng Mangagawa sa Kahoy v. Gotamco Sawmills, G.R. No. L-‐1573. March 29, 1948 325 Art. 211, par.(2), FC 326 Art. III, Sec. 18

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20. Excessive Fines and Cruel and Inhuman Punishments327

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

21. Non-Imprisonment for Debts

No person shall be imprisoned for debt or non-payment of poll tax.328

22. Double Jeopardy329 a. Requisites330

a. valid complaint or information;

b. filed before competent court;

c. to which defendant has pleaded; and

d. defendant was previously acquitted or convicted or the case dismissed or otherwise terminated without his express consent331

327 id, Sec. 19 328 id, Sec. 20 Coverage: 1. Debt – any civil obligation arising from a contract. 2. Poll Tax – a specific sum levied upon any person belonging to a certain class without regard to property or occupation (e.g. Community Tax ) A Tax is not a debt since it is an obligation arising from law hence its non-‐payment maybe validly punished with imprisonment. 329 Two types: 1. No person shall be twice put in jeopardy of punishment for the same offense; 2. If an act is punishable by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act. Crimes covered: 1. same offense; or attempt to commit or frustration thereof or for any offense which necessarily includes or is necessarily included in the offense charged in original complaint or information; and 2. when an act is punished by a law and an ordinance, conviction or acquittal under either shall bar another prosecution for the same act. 330 With the presence of the requisites the accused cannot be prosecuted anew for an identical offense or for any attempt to commit the same or frustration thereof or for any offense which necessarily included in the offense charged in the original complaint or information 331 People v. Ylagan, 58 Phil 851

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b. Motions for Reconsideration and Appeals Motions for Reconsideration Appeals 1. New evidence has been discovered which materially affects the decision rendered. 2. The decision is not supported by the evidence on record, or errors of law or irregularities have been committed which are prejudicial to the interest of the respondent.

The rule on double jeopardy prohibits the state from appealing or filing a petition for review of a judgment of acquittal that was based on the merits of the case. Certiorari will issue only to correct errors of jurisdiction, not errors of procedure or mistakes in the findings or conclusions of the lower court.332

The prosecution can appeal if the accused waived or is estopped from invoking his right.333 Appeal from the order of dismissal by the lower court is not foreclosed by the rule on double jeopardy where the order of dismissal was issued before arraignment.334

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.

c. Dismissal with Consent of Accused

Does not put accused in first jeopardy, except:

a. when ground for dismissal is insufficiency of evidence; or

b. when the proceedings have been unreasonably prolonged as to violate the right of the accused to a speedy trial.

332 PP vs. CA and Maquiling, June 21, 1999 333 PP vs. Obsania, 23 SCRA 1249 334 Martinez v. CA, 237 SCRA 575

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23. Ex Post Facto Laws and Bills of Attainder Ex post facto law335 Bills of Attainder a. law making an act criminal which was not before its passage; b. law aggravating penalty for crime committed before passage; c. law inflicting greater or more severe penalty; d. law altering legal rules of evidence and receive less or different testimony than law required at time of commission, in order to convict accused; e. law assuming to regulate civil rights and remedies only, in effect imposes a penalty; f. of deprivation of right for something which when done was lawful; g. law depriving accused of some lawful protection to which he had been entitled, such a protection of a former conviction or acquittal, or a proclamation of amnesty.

Legislative act that inflicts punishment without trial; legislative declaration of guilt.

335 Characteristics: 1. refers to criminal matters; 2. retroactive; and 3. prejudice the accused.

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H. Citizenship

1. Who are Filipino citizens

a. Those who are citizens under the Treaty of Paris;

b. Those declared citizens by judicial declaration applying the jus soli principle; 336 c. Those who are naturalized in accordance with law;337

d. Those who are citizens under the 1935 Constitution;

e. Those who are citizens under the 1973 Constitution.

2. Modes of acquiring citizenship

a. By birth i. jus sanguinis; and j. ii. jus soli;

b. By naturalization;

c. By marriage

3. Naturalization and Denaturalization

Naturalization338

Qualifications Disqualifications

a. not less than 18 years of age on date of of hearing of petition;339 b. resided in the Philippines for not less than 10 years; may be reduced to 5 years, if:

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 necessity or 336 before Tio Tiam v. Republic (25 April 1957, G.R. No. L-‐9602) 337 Act 2927 338 Declaration of Intention – must be filed with the Office of the Solicitor General one (1) year before filing of application for naturalization. Exceptions: a. Those born in the Philippines and received primary and secondary education in a Philippine school; b. Those who have resided in the Philippines for thirty (30) years; c. The widow or children of the applicant who died before his application was granted. 339 as amended by R.A. 6809 340 as amended by Sec. 6, Art. XIV

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1. honorably held office in the Philippines; 2. established new industry or introduced a useful invention; 3. married to a Filipino woman; 4. engaged as teacher in Philippine public or private school not established for exclusive instruction to particular nationality or race, or in any of branches of education or industry for a period of not less than 2 years; and 5. born in the Philippines; 6. character:

a. good moral character;

b. believes in the Constitution;

c. conducted himself in an irreproachable conduct during his stay in the Philippines; c. Own real estate in the Philippines not less than P5,000 in value; or have some lucrative trade, profession or lawful occupation that can support himself and his family;

d. Speak and write English or Filipino and any principal Philippine dialects;340 and e. Enrolled minor children in any public or private school recognized by government where Philippine history, government and civics are taught as part of curriculum, during the entire period of residence prior to hearing of petition.

propriety of violence, personal assault or assassination for the success or predominance of their ideas;

c. Polygamists or believers in polygamy;

d. Suffering from mental alienation or incurable contagious disease; e. Convicted of crime involving moral turpitude; f. Who, during residence in the Philippines, have not mingled socially with Filipinos, or not evinced sincere desire to learn and embrace customs, traditions and ideals of Filipinos; g. Citizens or subjects of nations with whom the Philippines is at war, during the period of such war; h. Citizens or subjects of foreign country whose laws do not grant Filipinos right to become naturalized citizens or subjects thereof.

Effects of Naturalization:

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On the wife

Vests citizenship on wife who might herself be lawfully naturalized; She need not prove her qualifications but only that she is not disqualified.341

On the minor children

1. Born in the Philippines– automatically becomes a citizen;

2. Born abroad

If born before the naturalization of the Father: (a) residing in RP at the time of naturalization – automatically becomes citizen; (b) not residing in RP at the time of naturalization – considered citizen only during minority, unless begins to reside permanently in the Philippines; 3. 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.

Denaturalization

Grounds Effects

1. Naturalization certificate obtained fraudulently or illegally; 2. If, within 5 years, he returns to his native country or to some foreign country and establishes residence therein; 3. Naturalization obtained through invalid declaration of intention;

1. If ground affects intrinsic validity of proceedings, denaturalization shall divest wife and children of their derivative naturalization; and 2. If the ground is personal, the wife and children shall retain citizenship.

341 Moy Ya Lim Yao v. Comm. of Immigration, 41 SCRA 292

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4. Minor children failed to graduate through the fault of the parents either by neglecting support or by transferring them to another school; and 5. Allowing himself to be used as dummy.

4. Dual citizenship and dual allegiance

Dual citizenship Dual allegiance Arises when, as a result of concurrent application of the different laws of two or more states, a person is simultaneously considered a national by said states.

Refers to the situation where a person simultaneously owes, by some positive act, loyalty to two or more states.

Involuntary

Result of an individual’s volition

5. Loss and re-acquisition of Philippine citizenship

Loss of Philippine Citizenship:342 Reacquisition of Philippine Citizenship: a. Naturalization in a foreign country; b. Express renunciation of citizenship343 c. Subscribing to an oath of allegiance to constitution or foreign laws upon attaining of 21 years of age;344 d. Rendering service to or accepting commission in the armed forces of a foreign country; e. Cancellation of certificate of

a. By naturalization346

b. By repatriation347 c. By direct act of Congress

342 C.A. 63 343 Expatriation The mere application or possession of an alien certificate of registration does not amount to renunciation (Mercado vs. Manzano, G.R. No. 135083, May 26, 1999) Subscribing to an oath of allegiance to constitution or laws of foreign upon attaining of 21 years of age; Citizens may not divest citizenship when Philippines is at war 344 Citizens may not divest citizenship when Philippines is at war.

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naturalization; f. Having been declared by final judgment a deserter of Philippines Armed Forces in times of war.345

6. Natural-born citizens and public office

Natural Born Citizens:348 The following must be must be natural-born citizens:

a. Citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship; b. Those born before January 17, 1973 of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority

a. President;349 b. Vice President;350 c. Members of Congress;351 d. Justices of the Supreme Court and lower collegiate courts;352 e. Ombudsman and his deputies;353

345 General Rule: Res judicata does not set in citizenship cases. Exception: 1. person’s citizenship is resolved by court or an administrative body as a material issue in the controversy, after a full-‐blown hearing; 2. with the active participation of the Solicitor General or his representative; and 3. finding of his citizenship is affirmed by the Supreme Court. 346 supra 347 Repatriation shall be effected by taking the necessary oath of allegiance to the Republic of the Philippines and registration in the proper civil registry and in the Bureau of Immigration. The Bureau of Immigration shall thereupon cancel the pertinent alien certificate of registration and issue the certificate of identification as Filipino citizen to the repatriated citizen. Allows the person to recover or return to his original status before he lost his Philippine citizenship. R.A. 8171 is an act providing for the repatriation of: a. Filipino women who have lost their Philippine citizenship by marriage to aliens and; b. natural-‐born Filipinos who have lost their Philippine citizenship on account or political or economic necessity. The applicant should not be a: a. Person opposed to organized government or affiliated with any association or group of persons who uphold and teach doctrines opposing organized government; b. Person defending or teaching the necessity or propriety of violence, personal assault, or association for the predominance of their ideas; c. Person convicted of crimes involving moral turpitude: or d. Person suffering from mental alienation or incurable contagious diseases. 348 Sec. 2, Art. IV 349 Sec.2, Art. VII 350 Sec.3, id. 351 Sec.3 & 6, Art. VI 352 Sec. 7(1), Art. VIII

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f. Constitutional Commissions;354 g. Members of the governing board of the Central Monetary Authority;355 h. Chairman and members of the

Commission of Human Rights.356

I. Law on Public Officers 1. General Principles

Public office

The right, authority or duty, created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some sovereign power of government to be exercised by him for the benefit of the public.

Public officer

a. A person who holds public office. b. Any person who, by direct provision of law, popular election or appointment by competent authority, shall take part in the performance of public functions in the Government of the Philippine Islands, or shall perform in said Government or in any of its branches, public duties as an employee, agent or subordinate official, of any rank or class shall be deemed to be a public officer.357 c. Includes elective and appointive officials and employees, permanent or temporary, whether in the classified, unclassified or exempt service, receiving, compensation, even nominal, from the government.358

Characteristics of public

a. Public office is a public trust created in the interest and

353 Sec.8, Art.XI 354 Secs.1(1) of Arts. IX-‐B, IX-‐C, and IX-‐D 355 Sec.20, Art. XII 356 Sec.17(2), Art.XIII 357 Art. 203, RPC 358Sec. 2, R.A. 3019 (Anti-‐Graft and Corrupt Practices Act)

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office

for the benefit of the public. b. There is no such thing as vested interest or an estate in an office or even an absolute right to hold it. c. Public office is personal to the incumbent thereof or appointee thereto.

2. Modes of Acquiring Title to Public Office

a. By appointment

b. By election

c. In some instances, by contract or by some other modes authorized by law.359

3. Modes and Kinds of Appointment

Permanent

Extended to a person possessing the requisite qualifications, including the eligibility required for the position, and thus protected by the constitutional guaranty of security of tenure.

Temporary

Extended to one who may not possess the requisite qualifications or eligibility required by law for the position, and is revocable at will, without the necessity of just cause or a valid investigation.360

Acting Appointment

The appointee may not possess the required qualities or the eligibility required by law for the position, and is revocable at will without the necessity of just cause and valid investigation.361

359 Preclaro v. Sandiganbayan, G.R. No. 111091, Aug. 21, 1995 360 The acceptance by the petitioner of a temporary appointment resulted in the termination of official relationship with his former permanent position. When the temporary appointment was not renewed, the petitioner had no cause to demand reinstatement thereto. (Romualdez v. CSC) Acquisition of the appropriate civil service eligibility by a temporary appointee will not ipso facto convert the temporary appointment into a permanent one; a new appointment is necessary (Province of Camarines Sur v. CA) 361 Marahomsan v. Alonto

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Temporary Appointment for Fixed Period

The appointment may be revoked only at the expiration of the period or, if revocation is made before such expiration, the same has to be for a valid and just cause.362

Provisional appointment

One issued upon the authorization by CSC to a person who has not qualified in an appropriate exam but otherwise meets the requirement for appointment to a regular position whenever such vacancy occurs and filling it is necessary in the interest of service and there is no appropriate register of eligible employees at the time of the appointment.363

Regular

One made by the President while Congress is in session after the nomination is confirmed by the COA and continues until the end of the term.

Ad-interim

One made by while Congress is not in session, before the confirmation by the COA, is immediately effective and ceases to be valid if disapproved or by passed by the COA upon the next adjournment of Congress

4. Eligibility and Qualification364 Requirements

Eligibility

It is the state or quality of being legally fit or qualified to be chosen.

Qualification

This refers to the act which a person, before entering upon the performance of his duties, is by law required to do such as the taking, and often, subscribing and filing of an official oath, and in some cases, the giving of an official bond.

362 Ambas v. Buenasedo 363 abolished already, considered temporary appointment. Provisional appointment is one which may be issued, upon prior authorization to the CSC, to a person who has not qualified in an appropriate examination but who otherwise meets the requirements for appointment to a regular position, whenever a vacancy occurs and filling thereof is necessary in the interest of the service and there is no appropriate register of eligible at the time of the appointment. 364 “Loss of any of the qualifications during incumbency will be a ground for termination” (Frivaldo v. COMELEC, 174 SCRA 245)

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It may refer to: a. Endowments, qualities, or attributes which make an individual eligible for public office.365 b. The act of entering into the performance of the functions of a public office.366

General qualifications:367

a. Citizenship368

b. Residence

c. Age

d. Educational Attainment

e. Civil Service369

5. Disabilities and Inhibitions of Public Officers

a) The President, Vice-President, the Members of the Cabinet, and their deputies or

assistants shall not, unless otherwise provided in the Constitution, hold any other office or employment during their tenure.370

b) No Senator or Member of the House of Representatives may old any other office or employment in the Government, or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries, during his term for which he was elected.371

365 Qualifications (endowments) must be possessed by the individual at the time of appointment or election and continuously for as the official relationship continuous. Loss of any of the qualifications during incumbency will be a ground for termination 366 e.g. taking an official oath or giving an official bond. Failure of an officer to perform an act required by law (e.g. oath) could affect the officer’s title to the given office. He could become merely a de facto officer. But prolonged failure or refusal to take an oath or office could result in the forfeiture of the office 367 Qualification standard-‐expresses the minimum requirements for a class in position in terms of education, training and expense, civil service eligibility, physical fitness and other requirements for successful performance. 368 A voluntary change of citizenship or a change thereof by operation of law disqualifies him to continue holding the civil service position to which he qualified and had been appointed. 369 Temporary appointments of non-‐eligible may be made in the absence of eligible actually and immediately available. 370 Art. VII, Sec. 13 371 Art. VI, Sec. 13

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c) The Members of the Supreme Court and of other courts established by law shall not be designated to any agency performing quasi-judicial or administrative functions.372

d) No Member of a Constitutional Commission shall, during his tenure, hold any other office or employment373 the same disqualification applies to the Ombudsman and his Deputies.374

e) The Ombudsman and his Deputies shall not be qualified to run for any office in the election immediately succeeding their cessation from office.375

f) Members of Constitutional Commissions, the Ombudsman and his Deputies must not have been candidates for any elective position in the election immediately preceding their appointment.376

g) Members of Constitutional Commissions, the Ombudsman and his Deputies are appointed to a term of seven (7) years, without reappointment.377

The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President shall not during his tenure be appointed as Members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including government-owned or controlled corporations.378

6. Powers and Duties of Public Officers

Powers

Ministerial Discretionary Discharge is imperative and it must be done by the public officer

Public officer may do whichever way he wants provided it is in accordance with law and not whimsical

Can be compelled by mandamus

Cannot be compelled by mandamus except when there is grave abuse of discretion

Can be delegated

Cannot be delegated unless otherwise provided by law

372 Art. XI, Sec. 8 373 Art. IX-‐A, Sec. 2 374 Art. IX, Sec. 8 375 Art. XI, Sec. 11 376 Art. IX-‐B, Sec. 1, Art. IX-‐C; Art. IX-‐D, Sec. 1; Art. XI, Sec. 8 377 Art. IX-‐B, Sec. 1(2); Art. IX-‐D, Sec. 1(2); Art. XI, Sec. 11 378 Art. VII Sec. 13

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Duties

General/ Constitutional Specific a. To be accountable to the people; to serve them with utmost responsibility, integrity, loyalty and efficiency, to act with patriotism and justice; and to lead modest lives.379 b. To submit a declaration under oath of his assets, liabilities and net worth upon the assumption of office and as often thereafter as maybe required by law.380

c. To owe the state and the Constitution allegiance at all times.381

a. The Solicitor general’s duty to represent the government, its offices and instrumentalities and its officials and agents except in criminal and civil cases for damages arising from felony- is mandatory. Although he has the discretion in choosing whether or not to prosecute a case or even withdraw there from such discretion must be exercised within the parameters set by law and with the best interest of the state as the ultimate goal. b. The government is not estopped from questioning the act of its officials, more so if they are erroneous or irregular.

7. Rights of Public Officers382

a. Right to Office383

b. Right of Salary384

c. Right of Preference in Promotion

379 Art. 11, Sec.1 380 Id., Sec. 17 381 Id., Sec. 18 382 When may Public officer claim legal right to his office? a) File a Quo Warranto – both elective and appointive b) File Election Protest – on elective officer by the losing candidate. 383 the just and legal claim to exercise the powers and responsibilities of the public officer. 384 a personal compensation to be paid to him for services, and it is generally a fixed annual or periodical payment depending on the time and not on the amount of services he may render. It is given to higher degree of employment. Where there is a de jure officer, a de facto officer who, in good faith, has possession of the office and has discharged the duties thereof, is entitled to salary. The salary of a public officer cannot be subject to garnishment, attachment or order of execution be seized before being paid to him, and appropriated to the payment of his debts. Agreements affecting compensation are void as contrary to public policy. A de jure officer, upon establishing his title to the office cannot recover from the public/government the amount so paid to the de facto officer for services performed by him before the adjudication upon the title.

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d. Right to Vacation and Sick Leave385

e. Right to Maternity, Paternity Leave

f. Right to Retirement Pay386

g. Right to pension and gratuity

h. Right to reimbursement for expenses incurred in the due performance of his duty.

i. Right to be indemnified against any liability which they may incur in the bona fide discharge of their duties.

j. Right to longevity pay.

k. Right to present complaints and grievances.

l. Right to exercise the powers connected with the office.

m. Right to special protection.

n. Right to Self-Organization387

8. Liabilities of Public Officers

General Rule on Liability:

A public officer is not liable for injuries by another as a consequence of official acts done within the scope of his official authority, except as otherwise provided by law.

A public officer shall be civilly liable if there is a clear showing of bad faith, malice or negligence.388

385 Under Office of President Memo Circ. No. 54 (3/24/88), government officers or employees are not entitled to commutation of all leave credits without limitation and regardless of the period when the credits were earned, provided the claimant was in the service as of January 9, 1986. 386 Retirement is compulsory for a member who has reached the age of sixty-‐five (65) years with at least fifteen (15) years of service. If he has less than fifteen (15) years of service, he shall be allowed to continue in the service to complete the fifteen (15) years, “to avail of the old-‐age pension benefit. (Profeta v. Drilon) 387 Art III, Sec 8 1987Consti. Civil servants are now given the right to self-‐organize but they may not stage strikes (see: SSS Employees Assoc. vs. CA, 175 SCRA 686) 388 Administrative Code of 1987; Sec. 38 (1), Chapter 9, Book 1

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a. Preventive Suspension389 and Back Salaries

The proper disciplining authority may preventively suspend any subordinate officer under his authority pending an investigation if the charge against such officer involves dishonesty, oppression or grave misconduct, or neglect in the performance of a duty, or if there are reasons to believe that the respondent is guilty of the charges which would warrant removal from the service. Back salaries are also 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.390

b. Illegal Dismissal, Reinstatement and Back Salaries

The public officer shall not be entitled to salaries during the period of preventive suspension; but upon exoneration and subsequent reinstatement, he shall be paid full salaries and emoluments accruing during the period of suspension. Note that in order to be entitled to back salaries, the employee suspended must be exonerated of the charges against him.391

9. Immunity392 of Public Officers

It is well settled as a general rule that public officers of the government, in the performance of their public functions, are not liable to third persons, either for the misfeasances or positive wrongs, or for the nonfeasances, negligences, or omissions of duty of their official subordinates.393

The immunity of public officers from liability for the nonfeasances, negligence or omissions of duty of their official subordinates and even for the latter’s misfeasances or positive wrongs rests upon obvious considerations of public policy, the necessities of

389 Preventive Suspension -‐ a precautionary measure so that an employee who is formally charged of an offense may be separated from the scene of his alleged misfeasance while the same is being investigated (Bautista v. Peralta, 18 SCRA 223) Need not be preceded by prior notice and hearing since it is not a penalty but only a preliminary step in an administrative investigation (Lastimosa v. Vasquez, 243 SCRA 497) The period of preventive suspension cannot be deducted from whatever penalty may be imposed upon the erring officer (CSC Resolution No. 90-‐1066) Period for Preventive Suspension: For Local elective officials – 60 days (max) for single offense within a single year for several offenses but not exceeding term of office. For civil service officers and employees – 90 days (max.) The Ombudsman may suspend for 6 months. 390 Cruz, Law on Public Officers, p. 126 391 Bangalisan v. Court of Appeals, 276 SCRA 619 392 An exemption that a person or entity enjoys from the normal operation of the law such as a legal duty or liability, either criminal or civil. 393 McCarthy vs. Aldanese, G.R. No. L-‐19715, March 5, 1923

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the public service and the perplexities and embarrassments of a contrary doctrine.394 This doctrine is applicable only whenever a public officer is in the

performance of his public functions. On the other hand, this doctrine does not apply whenever a public officer acts outside the scope of his public functions.

10. De Facto Officers395

A de facto officer is one who assumed office under the color of a known appointment or election but which appointment or election is void for reasons that the officer was not eligible, or that there was want of power in the electing body, or that there was some other defect or irregularity in its exercise, wherein such ineligibility, want of power, or defect being unknown to the public.

A de facto officer is entitled to emoluments for actual services rendered, and he cannot be made to reimburse funds disbursed during his term of office because his acts arevalid as those of a de jure officer.

11. Termination of Official Relation

a. Expiration of term or tenure396

b. Reaching the age limit397

394 Alberto V. Reyes, Wilfredo B. Domo-‐Ong and Herminio C. Principio v. Rural Bank of San Miguel (Bulacan), Inc., G.R. No. 154499, Feb. 27, 2004 395 Elements 1. A validly existing public office. 2. Actual physical possession of said office. 3. Color of title to the office 396 Term is the period of time during which a public officer has the right to hold the public office. Tenure is the period of time during which the public officer actually held office. When a public officer holds office of the pleasure of the appointing authority, his being replaced shall be regarded as termination through expiration of term, not removal. (Astraquillo v. Manglapus, 190 SCRA 280) When the constitution provides that the term of office of local elective official is three years, Congress cannot, by a law calling for delayed election, effectively reduced the term. (Osmena v. COMELEC 199 SCRA 750) 397 The compulsory retirement age for members of the Judiciary is seventy (70) years of age and for the other government officers and employees, sixty-‐five (65) years of age. Special Retirement Laws, e.g. R.A. 1616, which allows optional retirement after an officer has rendered a minimum number of years of government service, when availed of by the public officer, will result in termination of official relationship through reaching the age limit (or retirement). Any request for extension of service of compulsory retirees to complete the fifteen (15) years service requirement for retirement shall be allowed only to permanent appointees in the career service who are regular members of the Government Service Insurance System (GSIS), and shall be granted for a period not exceeding one (1) year. The government agency concerned is vested with discretionary authority to allow or disallow extension of such service. (Toledo v. COMELEC)

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c. Resignation398

d. Recall

e. Removal399

f. Abandonment400

g. Acceptance of an incompatible office401

h. Abolition of office402

i. Prescription of the right to office

j. Impeachment

k. Death403

l. Failure to assume elective office within six months from proclamation404

m. Conviction of a crime405

398 the formal renunciation or relinquishment of a public officer Resignation must be accepted by competent authority, either expressly or impliedly (as in the appointment of a successor). Mere tender of resignation, without acceptance by competent authority does not create a vacancy in public office; resignation is not complete until accepted by proper authority (Joson v. Nario, 187 SCRA 453) In the Philippines, acceptance of resignation is necessary, because Art. 238 of the Revised Penal Code penalizes any public officer who, before the acceptance of his resignation, abandons his office to the detriment of the public service. If the public officer is mandated by law to hold over, the resignation, even if accepted, will not be effective until after the appointment or election of his successor. 399 entails the ouster of an incumbent before the expiration of his term. 400 It is the voluntary relinquishment of an office by the holder, with the intention of terminating his possession and control thereof. 401 Acceptance of Incompatible Office ipso facto vacates the other. There is no necessity for any proceeding to declare or complete the vacation of the first office. (Adaza v. Pacana, 135 SCRA 431) Exception: Where the public officer is authorized by law to accept the other office, e.g., the Secretary of Justice who is, by express provision of the Constitution, a member of the Judicial and Bar Council 402 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. Constitutional Offices cannot be abolished by Congress. Valid abolition of office does not constitute removal of the incumbent 403 The death of an incumbent of an office necessarily renders the office vacant. A public official ceases to hold office upon his death and all his rights, duties and obligations pertinent to the office are extinguished thereby. A decision becomes binding only after it is validly promulgated. Consequently, if at the time of the promulgation of a decision or a resolution, a judge or a member of the collegiate court who had earlier signed or registered his vote, has vacated his office, his vote is automatically withdrawn or cancelled. (JAMIL vs. COMELEC) 404 Sec. 11, B..P 881 provides: “The office of any official elected who fails or refuses to take his oath of office within six months from his proclamation shall be considered vacant, unless said failure is for a cause or causes beyond his control”.

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n. Filing of a certificate of candidacy.

12. The Civil Service a. Scope

The Civil Service embraces all branches, subdivisions, instrumentalities, and agencies of the government, including government-owned or controlled corporations with original charters.406

b. Appointments to the Civil Service Shall be made only in accordance to merit and fitness to be determined, as far as practicable, and except appointments to positions which are policy determining; primarily confidential or highly technical by competitive examination.407

405 Conviction with a accessory penalty of disqualification-‐rule: When the penalty impose, upon conviction, carries with it the accessory penalty of disqualification, conviction by final judgment automatically terminates official relationship. 406The test in determining whether a government-‐owned or controlled corporation is subject to the Civil Service Law is the manner of its creation. Corporations created by special charters are subject to the Civil service, while those incorporated under the Corporation Law are not. The moment that a Corporation ceases to be government controlled, as when it is privatized, it ceases to fall under the Civil Service. Also, if what is involved is a private corporation from which the government acquires shares of stock, it does not fall under the Civil Service (e.g. PAL, Manila Hotel). The “Boy Scouts of the Philippines” is a government-‐owned or controlled corporation. 407 Art. IX-‐B, Sec. 2(2) A. Career Service characterized by: a. entrance based on merit and fitness, to be determined by competitive examinations, or based on highly technical qualifications; b. opportunity for advancement to higher career positions; and c. security of tenure. B. The positions included in the career service are: C. Open Career Positions, where prior qualification in an appropriate examination is required. D. Closed Career Positions. e.g. scientific or highly technical in nature. E. Career Executive Service. e.g. undersecretaries, bureau directors. F. Career Officers. Other than those belonging to the Career Executive Service, who are appointed by the President, such as those in the Foreign Office. G. Positions in the Armed Forces, although governed by a separate merit system. H. Personnel of government-‐owned or controlled corporations with original charters. I. Permanent Laborers, whether skilled, semi-‐skilled, or unskilled. J. Non-‐career Service characterized by: a. entrance on bases other than those of the usual tests utilized for career service; b. tenure limited to a period specified by law, or which is co-‐terminus with that of the appointing authority or subject to his pleasure, or which is limited to the duration of a particular project for which purpose the employment was made. K. The positions included in the non-‐career service are: L. Elective officials and their personal and confidential staff. M. Department heads and officials of Cabinet rank who hold office at the pleasure of the President and their personal and confidential staff.

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c. Personnel Actions Disciplinary cases involving “personnel action” affecting employees in the CS including “appointment through certification, promotion, transfers, reinstatement, reemployment, detail, reassignment, demotion and separation”, as well as employment status and qualification standards, all within the exclusive jurisdiction of the CSC.408

13. Accountability of Public Officers

a. Impeachment

A national inquest into the conduct of public men.409

N. Chairmen and members of commissions and boards with fixed terms of office, and their personal and confidential staff. O. Contractual personnel or those whose employment in the government is in accordance with a special contract to undertake a specific work or job 408 Mantala v. Salvador 409 Impeachable officers: 1. President; 2. Vice-‐President; 3. Justices of the Supreme Court; 4. Chairmen and Members of the Constitutional Commissions; 5. Ombudsman. Grounds for Impeachment: 1. Culpable violation of the Constitution; 2. Treason; 3. Bribery; 4. Graft and Corruption; 5. Other high crimes; and 6. Betrayal of public trust. Initiation of Impeachment Case: The House of Representatives shall have the exclusive power to initiate all cases of impeachment. Process of Impeachment: 1. Verified Complaint filed by any member of the house or any citizen upon resolution of endorsement by any member thereof 2. Included in the order of business within 10 session days. 3. Referred to the proper committee within 3 session days of its inclusion. If the verified complaint is filed by at least one third of all its members, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed. 4. The Committee, after hearing, and by majority vote of all its members, shall submit its report to the House together with the corresponding resolution. 5. Placing on calendar the Committee resolution within 10 days from submission; 6. Discussion on the floor of the report; 7. A vote of at least one third of all the members of the House shall be necessary either to affirm a favorable resolution with the Articles of Impeachment of the Committee or override its contrary resolution. Trial and Decision in Impeachment proceedings: 1. The Senators take an oath or affirmation. 2. When the President of the Philippines is on trial the Chief Justice of the Supreme court shall preside but shall not vote.

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b. Ombudsman

The “champion of the citizens” and “protector of the people” Tasked to entertain complaints addressed to him against erring public officers and

take all necessary actions thereon.410 (1) Functions

a. Investigate 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;

b. Direct any public official or employee of the Government, or any subdivision, agency or instrumentality thereof, as well as any GOCC with original charter, to perform or expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties.

3. A decision of conviction must be concurred in by at least two thirds of all the members of the Senate. Effect of Conviction: 1. Removal from Office; 2. Disqualification to hold any other office under the Republic of the Philippines; 3. Party convicted shall be liable and subject to prosecution, trial and punishment according to law. Limitations: 1. The House of Representatives shall have the exclusive power to initiate all cases of impeachment. 2. Not more than one impeachment proceeding shall be initiated against the same official within a period of one year. An impeachment case is the legal controversy that must be decided by the Senate while an impeachment proceeding is one that is initiated in the House of Representatives. For purposes of applying the-‐one year bar rule, the proceeding is “initiated” or begins when a verified complaint is filed and referred to the Committee on Justice for action (Francisco, et al. vs. House of Representatives, et al. G.R. No. 160261, November 10, 2003). 410The Constitution and R.A. 6770 (The Ombudsman Act of 1989) has endowed the Office of the Ombudsman with a wide latitude of investigatory and prosecutory power virtually free from legislative, executive or judicial intervention. The Supreme Court consistently refrains from interfering with the exercise of its powers, and respects the initiative and independence inherent in the Ombudsman who, beholden to no one, acts as the champion of the people and the preserver of the integrity of public service. (Loquias v. Office of the Ombudsman, GR No. 139396, August 15, 2000) The Ombudsman is clothed with authority to conduct preliminary investigation and prosecute all criminal cases involving public officers and employees, not only those within the jurisdiction of the Sandiganbayan but those within the jurisdiction of the regular courts as well. (Uy v. Sandiganbayan, GR No. 105965-‐70, March 20, 2001). The power to investigate also includes the power to impose preventive suspension. This is different from the power to recommend suspension. The latter is a suspension as a penalty; preventive suspension is not a penalty (Bernas, The 1987 Constitution A Reviewer-‐Primer, 2002. Ed., Citing, Buenesada vs. Flavier, 226 SCRA 645)

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c. Direct the officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith.

d. Direct the officer concerned, in any appropriate case, and subject to such limitation 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 or properties, and report any irregularity to the COA for appropriate action.

e. Request any government agency for assistance and information necessary in the discharge of its responsibilities and examine, if necessary, pertinent records and documents.

f. Publicize matters covered by its investigation when circumstances so warrant and with due process.

g. Determine the causes if inefficiency, red tape, mismanagement, fraud and corruption and to make recommendations for their elimination and observance of high standards of ethics and efficiency.

h. Promulgate its rules of procedure and exercise such other powers or perform such function or duties as may be provided by law.411

i. The Office of the Ombudsman shall enjoy fiscal autonomy. Its approved annual appropriations shall be automatically and regularly released.412

(2) Judicial Review in Administrative Proceedings

The administrative case may be appealed to the Court of appeals.

(3) Judicial Review in Penal Proceedings

The criminal case may be appealed to the Supreme Court..

411 Sec. 13, Art. XI 412 Sec. 14, id.

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c. Sandiganbayan413 The anti-graft court shall continue to function and exercise its jurisdiction as now and

hereafter may be provided by law.

d. Ill-Gotten Wealth

The right of the State to recover properties unlawfully acquired by public officials or employee, from them or from their nominees or transferees, shall not be barred by

413 Original Jurisdiction a. violations of R.A. 3019 (AGCPA) as amended; R.A. 1379; and 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 a permanent, acting or interim capacity at the time of the commission of the offense: (i) Officials of the Executive branch with the position of regional director or higher, or with Salary Grade Level 27 (G27) according to R.A. 6758, specifically including: (a) Provincial governors, vice-‐governors; Board members, provincial treasurers, engineers and other provincial department heads; (b) City mayors, vice-‐mayors, city councilors; city treasurers, assessors, engineers and other city department heads; (c) Officials of the diplomatic service from consuls or higher; (d) PA/PAF colonels; PN captains and all officers of higher rank; (e) Officers of the PNP while occupying the position of provincial director and those holding the rank of senior superintendent or higher; (f) City/provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and special prosecutor; and (g) Presidents, directors, trustees, or managers of GOCC’s state universities or educational institutions or foundations; (ii) Members of Congress and officials thereof with G27 and up; (iii) Members of the Judiciary without prejudice to the Constitution; (iv) Chairmen and members of the Constitutional Commissions without prejudice to the Constitution; and (v) All other national and local officials with G27 or higher; b. 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; c. Civil and criminal cases filed pursuant to and in connection with E.O. nos. 1, 2, 14 and 14-‐A issued in 1986. 2. Exclusive Original Jurisdiction over petitions for the issuance of the writs of mandamus, prohibitions, certiorari, habeas corpus, injunction and other ancillary writs and processes in aid of its appellate jurisdiction, Provided, that jurisdiction over these petitions shall be not exclusive of the Supreme Court; and 3. 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)

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prescription, laches or estoppel414 but it applies only to civil actions and not to criminal cases.415

14. Term Limits

Elected local official

Three (3) years starting from noon of June 30 following the election or such date as may be provided by law, except that of elective barangay officials, for maximum of three (3) consecutive terms in same position.416

Barangay officials

Three (3) years.417

414 Art. XI, Sec. 15 415 Presidential Ad Hoc Fact-‐Finding Committee on Behest Loans v. Desierto, GR No.130140, October 25, 1999 416 Sec. 43, LGC 417 under R.A. No. 9164 (March 19, 2002). Further, Sec.43 (b) provides that "no local elective official shall serve for more than three (3) consecutive terms in the same position. The Court interpreted this section referring to all local elective officials without exclusions or exceptions. (COMELEC v. Cruz, G.R. No. 186616, 19 Nov. 2009)

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J. Administrative Law

1. General Principles

Branch of public law that fixes the organization of the government and determines competence of authorities who execute the law and indicates to the individual remedies for the violations of his rights.

2. Administrative Agencies

a. Definition

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.

b. Manner of creation

1. by constitutional provision;

2. by legislative enactment; and

3. by authority of law

c. Kinds

Bodies set up to function in situations

1. where the government is offering some gratuity, grant or special privilege.418

2. wherein the government is seeking to carry on certain of the actual business of government.419

3. wherein the government is performing some business service for the public.420

418 e.g. Bureau of Lands 419 e.g. BIR 420 e.g. MWSS

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4. wherein the government is seeking to regulate business affected with public interest.421

5. wherein the government is seeking under the police power to regulate business and individuals.422

6. Wherein the government is seeking to adjust individual controversies because of a strong social policy involved.423

7. to make the government a private entity.424

3. Powers of Administrative Agencies

a. Quasi-Legislative425 Power

In exercise of delegated legislative power, involving no discretion as to what law shall

be, but merely authority to fix details in execution or enforcement of a policy set out in law itself.

(1) Kinds of Administrative Rules and Regulations

Legislative regulation

a. Supplementary or detailed legislation,426 b. Contingent regulation

Interpretative legislation or internal rules427

(2) Requisites for Validity

a. Law itself must declare as punishable the violation of administrative rule or regulation;

b. Law should define or fix penalty therefor; and

c. Rule/regulation must be published

421 e.g. LTFRB 422 e.g. SEC 423 e.g. ECC 424 e.g. GSIS 425 Rule Making 426 e.g. Rules and Regulations Implementing the Labor Code 427 e.g. BIR Circulars Only an instruction from a higher officer to a lower officer within the same office. It has no effect of law because no clear legal right which can be invoked by a third person emanates from it. It does not have to be published to be effective.

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b. Quasi-Judicial428 Power

Proceedings partake of nature of judicial proceedings. Administrative body granted authority to promulgate its own rules of procedure, provided they do not increase diminish or modify substantive rights, and subject to the disapproval by the Supreme Court.429

(1) Administrative Due Process430

The essence of due process is simply to be heard, or as applied in administrative proceedings, an opportunity to explain one’s side or an opportunity to seek reconsideration of the action or ruling complained of.431 Administrative due process is recognized to include the right to:

1. Notice, be actual or constructive, of the institution of the proceedings that may affect a person’s legal right;

428 adjudicatory 429 Art. VIII, Sec. 5 (5) 430 Notice and hearing as the fundamental requirements of due process, are essential only when an administrative body exercises its quasi-‐judicial function, but in the performance of its executive or legislative functions, such as the issuing rules and regulations, an administrative body need not comply with the requirements of notice and hearing, except when it involves revocation of a license. (Corona v. United Harbor Pilots Association of the Philippines, 283 SCRA 31) Due process in administrative context does not require trial type-‐proceedings similar to those in the courts of justice. (UP Board of Regents v. CA, 313 SCRA 404 ) Administrative due process cannot be fully equated to due process in its strict judicial sense. (Ocampo v. Office of the Ombudsman, 322 SCRA 17) A formal trial-‐type hearing is not at all times and in all instances essential to due process-‐ it is enough that the parties are given a fair and reasonable opportunity to explain their respective sides of the controversy and to present evidence on which a fair decision can be based. (Melendres v. COMELEC, 319 SCRA 262) The requirement of hearing is complied with as long as there is opportunity to be heard, and to submit any evidence one may have in support of his defense, and not necessarily that an actual hearing was conducted. (Busuego v. CA, 304 SCRA 473) Where the litigants are given the opportunity to be heard, either through oral arguments or pleadings, there is no denial of procedural due process. (Domingo, Jr. v. COMELEC, 313 SCRA 311; Ablera v. NLRC, 215 SCRA 476) A party who chooses not to avail of the opportunity to answer the charges cannot complain of denial of due process.(Ocampo v. Office of the Ombudsman, supra) There can be no denial of due process where a party had the opportunity to participate in the proceedings but failed to do so.(DBP v. CA, 302 SCRA 362; Tiomico v. CA, 304 SCRA 216) 431 Arboleda v. NLRC, 303 SCRA 38

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2. Reasonable opportunity to appear and defend his rights, and to introduce witnesses and relevant evidence in his favor;

3. A tribunal so constituted as to give him reasonable assurance of honesty and impartiality, and one of competent jurisdiction;

4. And a finding or decision by that tribunal supported by substantial evidence presented at the hearing or at least ascertained in the records or disclosed to the parties.432

(2) Administrative Appeal and Review Administrative Appeal433 Administrative review It refers to the review by a higher agency of decisions rendered by an administrative agency, commenced by petition of an interested party.

A superior officer or department head may upon his or her own volition review a subordinate’s decision pursuant to the power of control, however, subject to the caveat that a final and executory decision is not included within the power of control, and hence can no longer be altered by administrative review.

Pursuant to the doctrine of exhaustion of administrative remedies, before a party

litigant can seek judicial intervention, he must exhaust all means of administrative redress available under the law, subject to the exceptions provided for by law or jurisprudence.

By virtue of the power of control of the president over all executive departments, the President, by himself or through the Department Secretaries,434 may affirm, modify, alter, or reverse the administrative decision of subordinate officials and employees.435

(3) Administrative Res Judicata The doctrine of res judicata applies only to judicial or quasi-judicial proceedings and not to the exercise of purely administrative functions.436 Administrative proceedings are non-litigious and summary in nature; hence, res judicata does not apply.

432Air Manila, Inc. V. Balatbat, 38 SCRA 489 and Fabella v. CA, 282 SCRA 256 433 It refers to the review by a higher agency of decisions rendered by an administrative agency, commenced by petition of an interested party. Administrative appeals are established by the 1987 Administrative Code, which will govern primarily in the absence of a specific law applicable. Under the 1987 Administrative Code, administrative appeals from a decision of an agency are taken to the Department Head. 434 pursuant to the “alter ego doctrine” 435 The appellate administrative agency may conduct additional hearings in the appealed case, if deemed necessary. But just like in the appellate courts, appellate administrative bodies may only pass upon errors assigned. (Diamonon vs. DOLE, GR No. 108951, March 7, 2000) 436 applies only to judicial and quasi-‐judicial proceedings not to exercise of administrative functions (Brillantes vs. Castro 99 Phil. 497)

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c. Fact-Finding, Investigative, Licensing and Rate-Fixing Powers

Fact-Finding Power

The power delegated by the legislature to an administrative agency to determine some fact or state of things upon which the law makes, or intends to make, its own action depend, or the law may provide that it shall become operative only upon the contingency or some certain fact or event, the ascertainment of which is left to an administrative agency.437

Investigative Power

The power of an administrative agency to take into consideration the result of its own observation and investigation of the matter submitted to it for decision, in connection with other evidence presented at the hearing of the case.438

Licensing Power

The action of an administrative agency in granting or denying, or in suspending or revoking a license, permit, franchise, or certificate of public convenience and necessity.439

Rate Fixing Power

It is the power usually delegated by the legislature to administrative agencies for the latter to fix the rates which public utility companies may charge the public.440

437 1 Am. Jur. 2d 930-‐931 438 Pantranco South Express, Inc. v Board of Transportation, 191 SCRA 581,1991 439 De Leon, Administrative Law, 2010 440 ibid.

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4. Judicial Recourse and Review441

Doctrine of Primary Administrative Jurisdiction442

Judicial action of a case is deferred pending the determination of some issues which properly belong to an administrative body because their expertise, specializes skills, knowledge and resources are required for the resolution of factual and non-legal matters. In such a case, relief must first be sought and obtained in the administrative body concerned before the Court will supply the remedy. Where a statute lodges exclusive original jurisdiction in an administrative agency, the court will refuse to take up a case unless the agency has finally completed its proceedings.443

Doctrine of Exhaustion of Administrative Remedies444

Whenever there is an available administrative remedy provided by law, no judicial recourse can be

441 Requisites of judicial review of administrative action 1. Administrative remedies must have been exhausted or the principle of exhaustion of administrative remedies. 2. Administrative action must have been completed or the principle of finality of administrative action. 442 or preliminary resort 443 The doctrine does not warrant a court to arrogate unto itself authority to resolve a controversy the jurisdiction over which is initially lodged with an administrative body of special competence. (Roxas & Co. Inc v. Court of Appeals, 321 SCRA 106 and Province of Zamboanga del Norte v. Court of Appeals, 342 SCRA) The application of the doctrine of primary jurisdiction does not call for the immediate dismissal of the case pending before the court. The case is merely suspended until the issues resolvable by the administrative body are threshed out and fully determined (Industrial enterprises, Inc v. CA, 184 SCRA 426) 444 Failure to exhaust administrative remedies will not affect the jurisdiction of the courts. Non-‐compliance with the doctrine will deprive the complainant of a cause of action, which is a ground for a motion to dismiss the case. However, if no motion to dismiss is filed on this ground, there is deemed a waiver. (Rosario v. CA, 211 SCRA and Baguioro v. Basa, 214 SCRA 437) One of the reasons for the doctrine of exhaustion of administrative remedies is the separation of powers, which enjoins upon the judiciary a becoming a policy of non-‐interference with matters coming primarily within the competence of other department. The Legal reason is that the courts should not act and correct its mistakes or errors and amend its decision on a given matter and decide it properly. (Lopez

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made until all such remedies have been availed of and exhausted. Before a party can invoke the jurisdiction of the courts of justice, he is expected to have exhausted all means of administrative redress afforded to him by law.

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.

v. City of Manila, 303 SCRA 448) And the practical reason is that administrative process I intended to provide less expensive and speedier solution to disputes.

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K. Election Law

1. Suffrage

The right and obligation of qualified citizens to vote in the election of certain national and local of the government and in the decisions of public questions submitted to the people. It includes within its scope: election, plebiscite, initiative, referendum and recall.

2. Qualification and Disqualification of Voters

Qualifications Disqualifications 1. Filipino citizenship- it may be by birth or naturalization.

2. Age - a person may be registered as a voter although he is less than 18 years at the time of registration if he will be at least 18 on the day of election.

3. Residence - at least 1 year in the Philippines, and at least 6 months where he proposes to vote immediately preceding the election. Any person who, on the days of registration may not have been reached the required period of residence but who, on the day of election shall possess such qualification, may register as voter.445

No literacy, property or other substantive

1. Any person sentenced by the final judgment to suffer imprisonment for not less than 1 year. 2. Any person adjudged by final judgment of having committed

(a) any crime involving disloyalty to the government or (b) any crime against national security firearms laws. 3. Insane or incompetent persons as declared by competent authority.

445 Any person who temporarily resides in another city municipality or country solely by reason of occupation, profession, employment in public or private service, educational activities, work in the military or naval reservations within the Philippines, service in the AFP, PNP or confinement or detention in government institutions, shall not deemed to have lost his original residence. (Sec. 9, RA 8189) In election cases, the Supreme Court treats domicile and residence and residence as synonymous terms. In order to acquire a new domicile by choice, there must concur (1) residence or bodily presence in the new locality;(2) an intention to remain there; and (3) an intention to abandon the old domicile. The residence at the place chosen for the new domicile must be actual. (Romualdez vs. RTC, 226 SCRA 406)

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requirement shall be imposed on the exercise of suffrage.

3. Registration of Voters

The personal filing of application of registration of voters shall be conducted daily in the office of the Election Office during regular office hours. No registration shall, however, be conducted during the period starting 120 days before a regular election and 90 days before a special election.446 446 Sec. 8, R.A. 8189

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4. Inclusion and Exclusion Proceedings447

Jurisdiction

Municipal or Metropolitan Trial Court

Regional Trial Court Supreme Court

Original and

Appellate jurisdiction

Appellate jurisdiction over

447 Petitioners Inclusion 1. Private person whose application was disapproved by the Election Registration Board or whose name was stricken out from the list of waters (Sec. 34, R.A. 8189) 2. COMELEC [Sec. 2(6), Art. IX-‐C] Exclusion 1. Any registered voter in city or municipality 2. Representative of political party 3. Election Officer (Sec. 39, R.A. 8189) 4. COMELEC [Sec. 2(6), Art. IX – C] Period for Filing: Inclusion – Any day except 105 days before regular election or 75 days before a special election. (Sec. 24, RA 8189) Exclusion – Any time except 100 days before a regular election or 65 days before special election. (Sec. 35 RA 8189) Procedure 1. Petition for exclusion shall be sworn (Sec. 35 , R.A. 8189) 2. Each petition shall refer only to only one precinct. (ibid.) 3. Notice 4. Parties to be notified Inclusion and Exclusion – Election Registration Board – Challenged voters [Sec. 32(b), id.] Manner Notice stating the place day and hour of hearing shall be served through any of the following means: 1. Registered mail 2. Personal delivery 3. Leaving copy in possession of sufficient discretion in residence. 4. Posting in city hall or municipal hall and two other conspicuous places in the city or municipality at least 10 days before the hearing (ibid.) Any voter, candidate or political party affected may intervene. (Sec. 32 (c), id.) Non-‐appearance is prima facie evidence the registered voter is fictitious (Sec. 32 (f), id.) Decision cannot be rendered on stipulation of facts (ibid.) No motion for reconsideration is allowed, (Sec. 33, id.)

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exclusive Jurisdiction (5 days)448

RTC on question of law (15 days)449

5. Political Parties

A political party is any organized group of persons pursuing the same ideology, political ideas or platforms of government and includes its branches or divisions.

A political party may refer to a local regional or national party existing and duly registered and accredited by the COMELEC. To acquire juridical personality, qualify for accreditation, and to be entitled to the rights of political parties, a political party must be registered with the COMELEC.450

a. Jurisdiction of the COMELEC over political parties

Flowing from its constitutional power to enforce and administer all laws and regulations relative to the conduct of the election and its power to register and regulate political parties, the Commission on Elections may resolve matters involving the ascertainment of the identity of the political party and its legitimate officers.451

b. Registration In order to acquire juridical personality as a political party, to entitle it to the benefits and privileges granted under the Constitution and the laws, and in order to participate in the party-list system, the group must register with the Commission on Elections by filing with the COMELEC not later than 90 days before the election a verified petition stating its desire to participate in the party-list system as a national, regional, sectoral party or organization or a coalition of such parties or organizations.452

448 Sec. 33, id. 449 Sec. 5(2)(e), Art. VIII; Sec. 2, Rule 45 of the RoC

450 The following political parties cannot be registered. 1. Religious sects 2. Those which seeks to achieve their goals through unlawful means 3. Those which refuse to adhere to the Constitution 4. Those that are supported by any foreign government Grounds for Cancellation of Registration: 1. accepting financial contributions from foreign governments or their agencies; and 2. failure to obtain at least 10% of votes casts in constituency where party fielded candidates. 451 Laban ng Demokratikong Pilipino vs. COMELEC, G.R. No. 161265, Feb. 24, 2004 452 Sec. 3 (c), R.A. 7941

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6. Candidacy

a. Qualifications of Candidates453

A. National B. Local

1. President and Vice President

a. natural-born citizen of the Philippines, b. a registered voter, c. able to read and write, d. at least forty (40) years of age on the day of the election, and e. a resident of the Philippines for at least ten (10) years immediately preceding such election.454

1. An elective local official must be a citizen of the Philippines; a registered voter in the barangay, municipality, city, or province or, in the case of a member of the sangguniang panlalawigan, sangguniang panlungsod, or sangguniang bayan, the district where he intends to be elected; a resident therein for at least one (1) year immediately preceding the day of the election; and able to read and write Filipino or any other local language or dialect. 2. Candidates for the position of governor, vice-governor, or member of the sangguniang panlalawigan, or mayor, vice-

453 Qualifications prescribed by law are continuing requirements and must be possessed for the duration of the officer’s active tenure. Once any of the required qualifications is lost, his title to the office may be seasonably challenged. (Frivaldo vs. COMELEC, 174 SCRA 245 and Labor vs. COMELEC, 176 SCRA 1) 454 Art. VII, Sec. 2 455 Sec.39, LGC

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2. Senators a. natural-born citizen of the Philippines, b. a registered voter, c. able to read and write, d. at least thirty-five (35) of years of age on the day of the election, and

f. a resident of the Philippines for not less than 2 years immediately preceding the day of the election.

3. Congressmen – District and Party – List Representatives a. natural-born citizen of the Philippines, b. a registered voter, c. able to read and write, d. at least twenty -five ((25) of years of age on the day of the election, and e. except the party-list representatives, a registered voter in the district in which he shall be elected, and f. a resident of the Philippines for not less than two (2) years immediately preceding the day of the election.

mayor or member of the sangguniang panlungsod of highly urbanized cities must be at least twenty-one (21) years of age on election day. 3. Candidates for the position of mayor or vice-mayor of independent component cities, component cities, or municipalities must be at least twenty-one (21) years of age on election day. 4. Candidates for the position of member of the sangguniang panlungsod or sangguniang bayan must be at least eighteen (18) years of age on election day. 5. Candidates for the position of punong barangay or member of the sangguniang barangay must be at least eighteen (18) years of age on election day. 6. Candidates for the sangguniang kabataan must be at least fifteen (15) years of age but not more than twenty-one (21) years of age on election day.455

b. Filing of Certificates of Candidacy

(1) Effect of Filing

Appointive official

Any person holding an appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in GOCCs, shall be considered ipso facto resigned from his office

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upon the filing of his certificate of candidacy. Such resignation is irrevocable.456

Elective official

No effect. The candidate shall continue to hold office, whether he is running for the same or a different position.457

(2) Substitution of Candidates

If after the last day for the filing of certificates of candidacy, an official candidate of a political party: (1) dies, (2) withdraws or is (3) disqualified for any cause a person belonging to, and certified by, the same political party may file a certificate of candidacy not later than mid-‐day of election day to replace the candidate who died, withdrew or was disqualified.458

However, no substitution shall be allowed for any independent candidate.459

(3) Ministerial duty of COMELEC to receive certificate

Subject to its authority over nuisance candidates and its power to deny due course to or cancel a certificate of candidacy,460 the COMELEC shall have only the ministerial duty to receive and acknowledge receipt of the certificate of candidacy.461

(4) Nuisance Candidates

They are candidates who have no bona fide intention to run for the office for which the COC has been filed and would thus prevent a faithful election.

COMELEC may motu proprio or upon petition of an interested party, refuse to give due course to or cancel certificate of candidacy if shown that said certificate was filed: 456 Sec. 66 , OEC 457 Sec. 14, Fair Elections Act expressly repealed Sec. 67 of B.P. 881 458 COMELEC Reso. No. 9140 459 Ibid. 460 Sec, 78, B.P. 881 461 Sec. 76, id. As early as in Abcede vs. Imperial, 103 Phil. 136, the Supreme Court said that the Commission has no discretion to give or not to give due course to a certificate of candidacy filed in due from. While the Commission may look into patent defects in the certificate, it may not go into matters not appearing on their face. Accordingly, the COMELEC may not, by itself, without proper proceedings, deny due course to or cancel a certificate of candidacy filed in due form. Sec. 78, B.P. 881, which treats of a petition to deny due course to or cancel a certificate of candidacy on the ground that any material representation therein is false, requires that the candidate must be notified of the petition against him, and he should be given the opportunity to present evidence in his behalf. (Cipriano vs. COMELEC, G.R. No. 158830, august 10, 2004.

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1. to put election process in mockery or disrepute;

2. to cause confusion among voters by similarity of names of registered candidates;

3. by other circumstances or acts which demonstrate that a candidate has no bona fide intention to run for office for which certificate has been filed, and thus prevent a faithful determination of true will of electorate.

(4) Petition to Deny or Cancel Certificates of Candidacy462

A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by the person exclusively on the ground that any material representation contained therein as required463 is false. The petition may be filed at any time not later than 25 days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than 15 days before the election.

The petition shall be filed by any registered candidate for the same Office within 5 days

from the last day of filing of certificates of Candidacy.464

(5) Effect of Disqualification

After final judgment

Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted.

Before final judgment

If for any reason a candidate is not declared by final Judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election the Court or Commission shall continue with the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may, during the tendency thereof, order the suspension of the proclamation of such candidate whenever the evidence of guilt is strong.465

462 A petition filed after the election is filed out of time. (Loong vs.COMELEC, 216 SCRA 769) The COMELEC may motu proprio refuse to give due course or cancel a certificate of candidacy. (Sec. 69, BP 881) The proceeding shall be summary. (Nolasco vs. COMELEC, 275 SCRA 762) The COMELEC can decide a disqualification case directly without referring it to its legal officers for investigation. (Nolasco, supra) The decision shall be final and executory after 5 days from receipt unless stayed by the Supreme Court [Secs. 5(e) and 7, RA 6646] 463under Section 74 of the Omnibus Election Code 464 Secs. 5 (a) and 7, R.A. 6646

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(6) Withdrawal of Candidates A person who has filed a CoC may, prior to the election, withdraw the same by submitting to the COMELEC a written declaration under oath.466

7. Campaign a. Premature Campaigning

It shall be unlawful for any person, whether or not a voter or candidate, or forany party, or association of persons, to engage in an election campaign or partisan political activity except during the campaign period.467

b. Prohibited Contributions

Those made directly or indirectly by any of the following:

1. Public or private financial institutions

2. Public utilities and those who exploit natural resources468

3. Persons who hold contracts or sub-contracts to supply the government with goods and services.

465 Sec. 6, id. Sec. 6 of R.A. 6616 authorizes the continuation of proceedings for disqualification even after the elections if the respondent has not been proclaimed. (Perez vs. COMELEC, 317 SCRA 641) A disqualification case may have two aspects, the administrative, which required only a preponderance of evidence to prove disqualification, and the criminal, which necessitates proof beyond reasonable doubt to convict. There is no provision in RA 6646 that treats of a situation where the complaint for disqualification is filed after the election. . . . Second paragraph of paragraph 2 of Res. No. 2050 provides that where a complaint is filed after the election but before proclamation, as in this case, the complaint must be dismissed as a disqualification case but shall be referred to the Law Department for preliminary investigation. 466 Sec. 73, OEC) There was no withdrawal of candidacy for the position of mayor where the candidate, before the deadline for filing certificates of candidacy, personally appeared in the COMELEC office, asked for his certificate of candidacy and intercalated the word “vice” before the word mayor and the following day wrote the election registrar saying that his name be included in the list of official candidates for mayor. (Vivero vs. COMELEC, L – 81059, Jan 12, 1989) Since his certificate of candidacy for the office of board member was filed by his party, and the said party had withdrawn the nomination which withdrawal was confirmed by the candidate under oath, there was substantial compliance with Sec. 73. His filing under oath within the statutory period of his individual certificate for candidacy for the separate office of mayor was, in effect, a rejection of the party nomination on his behalf for the office of board member. (Ramirez vs. COMELEC, L-‐81150, Jan 12, 1992) 467 Sec. 80, B.P. 881 468 Thus, where an operator of a public utility disguised a contribution to a candidate for governor as loan, the promissory note is void: (Halili vs. Court of Appeals, 83 SCRA 633)

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4. Persons granted franchises, incentives, exemptions or similar privileges by the government

5. Persons granted loans in excess of P25, 000 by the government or any of its subdivisions or instrumentalities

6. Schools which received grants of public funds of at least P100,000

7. Employees in the Civil Service or members of the Armed Forces.

8. Foreigners and foreign corporations469

9. Corporations470

c. Lawful and prohibited election propaganda

Lawful propaganda Prohibited Campaign 1. Forms 2. Pamphlets, leaflets, cards, decals, stickers and written or printed materials not more than 8 ½ inches by 14 inches 3. Handwritten/printed letters 4. Cloth, paper or cardboard, posters measuring, not more than 2 feet by 3 feet 3 by 8 ft. allowed in announcing at the site on the occasion of a public meeting or rally, may be displayed 5 days before the date of rally but shall be removed within 24 hours after said rally. 5. Paid print advertisements: ¼ page in broadsheets and ½ pages in tabloids thrice a week per newspaper, magazine or other publication during the campaign period.471

1. Public exhibition of a movie, cinematograph or documentary portraying the life or biography of a candidate during campaign period. 2. Public exhibition of a movie, cinematograph or documentary portrayed by an actor or media personality who is himself a candidate; 3. Use of airtime for campaign of a media practitioner who is an official of a party or a member of the campaign staff of a candidate or political party.473

469 Sec. 95 , B.P. 881 470 Sec. 36 (9), Corp. Code 471 Sec. 4, R.A. 9006 472 Requirement

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6. Broadcast Media National Positions: 120 minutes for TV, 180 minutes for radio Local Positions: 60 minutes for TV, 90 minutes for radio 7. Other forms of election propaganda not prohibited by the Omnibus Election Code and R.A. 9006, and authorized by the COMELEC.472

d. Limitations on expenses Candidates

a. President and vice president – P10 per voter b. Other candidates – P3 per voter in his constituency c. Candidate without political party – P5 per voter d. Party/organization and coalition participating in the party – list system – P5 per voter

Political party and coalition

P5 per voter in the constituency where it has candidates.474

e. Statement of contributions and expenses

1. Any published or printed political matter or broadcast of election propaganda by television or radio for or against a candidate or group of candidates to any public office shall bear and be reasonably legible or audible words “political advertisement paid for,” followed by the true and correct name and address of the candidate or party for whose benefit the election propaganda was printed or aired. 2. If the broadcast is given free or charge by the radio or television station, it shall be identified by the word “airtime for this broadcast was provided free of charge by” followed by the true and correct name and address of the broadcast entity. 3. Print, broadcast or outdoor advertisements donated to the candidate or political party shall be printed, published, broadcast or exhibited without the written acceptance by the said candidate or political party. Such written acceptance shall be attached to the advertising contract and shall be submitted to the COMELEC. (Sec. 4, R.A. 9006) 473Scope 1. Prohibiting the posting of decals and stickers except in the common posting area authorized by the COMELEC is not valid (Adiong vs. COMELEC, 244 SCRA 272) 2. Mass media may report news relating to candidates, and mass media practitioners may give their opinion regarding candidates. (National Press Club vs. COMELEC, 207 SCRA 1) 474 Sec. 13, R.A. 7166

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Every candidate and treasurer of political party shall, within 30 days after day of election, file offices of COMELEC the full, true and itemized statement of all contribution and expenditures in connection with election.

A candidate who withdraws his certificate of candidacy must still file a statement of contributions and expenditures, for the law makes no distinction.475

8. Board of Election Inspectors and Board of Canvassers a. Composition

Board of Election Inspectors Board of Canvassers

A chairman and two members, all of whom are public school teachers. 476

Provincial: 1. The provincial election supervisor or a lawyer in the regional office of the COMELEC, as chairman,

2. The provincial fiscal, as vice chairman, and

3. The provincial superintendent of schools as member.477 City:

475 Pilar vs. COMELEC, 245 SCRA 759 476 If there are not enough public school teachers, teachers in private schools, employees in the civil service, or other citizens of known probity and competence may be appointed (Sec. 13, R.A. 6646) 477 In case of non-‐availability, absence, disqualification or incapacity, substitute members are the following, in the order named: 1. Provincial auditor, 2. Register of Deeds, 3. Clerk of Court nominated by the Executive Judge, and 4. Any other available appointive provincial official.

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1. The city election registrar or a lawyer of the COMELEC, as chairman, 2. The city fiscal, as vice chairman, and

3. The city superintendent of schools, as member.478 Municipal: 1. The election registrar or a representative of the COMELEC, as chairman, 2. The municipal treasurer, as vice chairman, and

3. The most senior district school supervisor, or in his absence, a principal of the school or the elementary school, as member.479

b. Powers

Board of Election Inspectors Board of Canvassers 1. Conduct the voting and counting of votes In the polling place; 2. Act as deputies of the COMELEC in supervision and control of the polling place;

3. Maintain order within the polling place and its premises to keep access thereto open and unobstructed and to enforce obedience to its lawful orders, and

4. Perform such other functions as prescribed by the Code or by the rules of the COMELEC.

It has only the ministerial task of compiling and adding the results as they appear in the returns transmitted to it.480

478 Substitute members are officials in the city corresponding to the substitutes in the provincial board of canvassers 479 Substitute members are the municipal administrator, municipal assessor, clerk of court nominated by the Executive Judge, or any other available appointive municipal officials 480 Guiao vs. COMELEC, 137 SCRA 366

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9. Remedies and Jurisdiction in Election Law a. Petition Not to Give Due Course to Certificate of Candidacy

Maybe filed by the person exclusively on the ground that any material representation contained therein as required481 is false.

The/petition may be filed at any time not later than 25 days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than 15 days before the election.482

b. Petition for disqualification

Any citizen of voting age, or duly registered political party, organization or coalition of political parties may file with the Law Department of the Commission a petition to disqualify a candidate on grounds provided by law.

c. Petition to Declare Failure of Elections483

There are only 3 instances where a failure of elections may be declared, namely:

a. 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;

b. 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

c. 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.484

481 under Section 74 of the Omnibus Election Code

Requirements: 1.Material misrepresentation in the qualifications for elective office, which includes

age, residencycitizenship, and any other legal qualifications necessary to run for an elective office; and 2.Deliberate attempt to mislead, misinform or hide a fact which would otherwise render a candidate ineligible. These two requirements must concur to warrant the cancellation of the certificate of candidacy. 482 Sec. 78, id. 483 The COMELEC has the power to declare a failure of election and this can be exercised motu proprio or upon verified petition. (Loong v. COMELEC, G.R. Nos. 107814-‐15, May 16, 1996) 484What is common in these three instances is the resulting failure to elect. In the first instance, no election is held while in the second, the election is suspended. In the third instance, circumstances attending the preparation, transmission, custody or canvass of the election returns cause a failure to elect. The term failure to elect means nobody emerged as a winner. (Pasandalan vs. Comelec, G.R. No. 150312, July 18, 2002)

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d. Pre-Proclamation Controversy485

Any question pertaining to or affecting the proceedings of the board of canvassers which may be raised by any candidate or by any registered political party or coalition of political parties before the board or directly with the Commission, or any matter raised under Sections 233, 234, 235 and 236486 in relation to the preparation, transmission, receipt, custody and appreciation of the election returns.487

e. Election Protest488

The causes for the declaration of a failure of election may occur before or after the casting of votes or on the day of the election. (Sec. 4, R.A. 7166) The COMELEC shall call for the holding or continuation of the election on a date reasonably close to the date of the election not held, suspended, or which resulted in a failure to elect but not later than 30 days after the cessation of the cause of such suspension or failure to elect. (Sec. 6, B.P. 881) In such election, the location of polling places shall be the same as that of the preceding regular election. However, changes may be initiated by written petition of the majority of the voters of the precinct or agreement of all the political parties or by resolution of the Comelec after notice and hearing. (Cawasa vs. Comelec, G.R. No. 150469, July 3, 2002) 485 In pre-‐proclamation controversy, the board of canvassers and the COMELEC are not to look beyond or behind election returns which are on their face regular and authentic returns.(CHU, infra) A pre-‐proclamation controversy is limited to an examination of the election returns on their face-‐ The COMELEC as a general rule need not go beyond the face of the returns and investigate alleged election irregularities. To require the COMELEC to examine the circumstances surrounding the preparation of the returns would run counter to the rule that a pre-‐proclamation controversy should be summarily decided. Where the resolution of the issues raised would require the COMELEC to “pierce the veil” of election returns that appear prima facie regular, the remedy is a regular election protest. The office of pre-‐proclamation controversy is limited to incomplete, falsified or materially defective returns which appear as such on the face. (Sebastian VS COMELEC, 327 SCRA 406) 486 see Reference 487 Chu vs. COMELEC,319 SCRA 482 488 The filing of an election protest results in abandonment of a pre-‐proclamation case even if the protest alleged it was filed as a precautionary measure, if he did not explain why.(Laodenio vs. COMELEC,276 SCRA 405) The rule that the filing of a protest implies abandonment of the pre-‐proclamation case does not apply if: 1. The protest was filed as a precautionary measure (Mitmug vs. COMELEC,230 SCRA 54)

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Maybe filed by any candidate who has filed a certificate of candidacy and has been

voted upon for the same office. Grounds Time to file 1. Fraud,

2. terrorism,

3. irregularities or

4. illegal acts committed before, during or after the casting and counting of votes

Within 10 days from the proclamation of the results of the election

e. Quo Warranto

Filed by any registered voter in the constituency.

Grounds Time to file 1. Ineligibility or

2. disloyalty to the Republic of the Philippines

Within 10 days from the proclamation of the results of the election

10. Prosecution of Election Offenses

The COMELEC is vested with the power of a public prosecutor with the exclusive authority to conduct the preliminary investigation and prosecution of election offenses punishable under the Omnibus Election Code.489

2. The board of canvassers was improperly constituted, as when the Municipal Treasurer took over the canvassing without having been designated. (Saman vs. COMELEC,224 SCRA 631) 489 Sec. 265, B.P. 881 Omnibus Election Code

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L. Local Governments

1. Public Corporations

a. Concept

One formed and organized for the government of a portion of the State.

(1) Distinguished from Government-Owned or Controlled Corporations (GOCCs)

Public corporation GOCCs

Purpose Administration of local government

Performance of functions relating to public needs whether Governmental or Proprietary in nature.

Who creates

By the state either by general or special act

By Congress or by incorporators

How created By legislation

1. Original charters or special laws or

2. general corporation law as a stock or non-‐stock corporation

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b. Classifications

Quasi-Corporations

Municipal Corporations

Public corporations created as agencies of State for narrow and limited purpose.

A body politic and corporate constituted by incorporation of inhabitants of city or town for purposes of local government thereof or as agency of State to assist in civil government of the country; one formed and organized for the government of a portion of the State.

2. Municipal Corporations a. Elements

1. Legal creation or incorporation

2. Corporate name

3. Inhabitants

4. Territory

b. Nature and Functions

Nature Every local government unit created or organized is a body politic and corporate

endowed with powers to be exercised by it in conformity with law. As such, it shall exercise powers as political subdivision of the National Government and as a corporate entity representing the inhabitants of its territory.

Functions Public/Governmental Private/Proprietary It acts as an agent of the State for the government of the territory and the inhabitants within the municipal limits; it exercises by delegation a part of the sovereignty of the State.

It acts in a similar category as a business corporation, performing functions not strictly governmental or political; it stands for the community in the administration of local affairs. It acts as a separate entity

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for its own purposes and not as a subdivision of the State.

c. Requisites for Creation, Conversion, Division, Merger or

Dissolution Creation and Conversion

Plebiscite requirement490

Must be approved by majority of the votes cast in a plebiscite called for such purpose in the political unit or units directly affected.

Income requirement

Must be sufficient on acceptable standards to provide for all essential government facilities and services and special functions commensurate with the size of its population as expected of the local government unit concerned. Average annual income for the last consecutive year should be at least:

a. Province – P 20M

b. Highly Urbanized City – P 50M

c. City – P 20M491

d. Municipality – P 2.5M

Population requirement

To be determined as the total number of inhabitants within the territorial jurisdiction of the local government unit concerned. The required minimum population shall be: a. Barangay – 2K

But 5K in:

i. Metro Manila

ii. Highly urbanized cities

490 The plebiscite must be participated in by the residents of the mother province in order to conform to the constitutional requirement. 491 100M, R.A. 9009 amending Sec. 450 of LGC

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b. Municipality – 25K

c. City – 150K

d. Province – 250K

Land requirement

Must be contiguous, unless it comprises two or more islands or is separated by a local government unit; properly identified by metes and bounds; and sufficient to provide for such basic services and facilities. Area requirements are: a. Municipality – 50 sq. km492

b. City – 100 sq. km493

c. Province – 2,000 sq.km494

Division and Merger

The division and merger of local government units shall comply with the same requirements for their creation. The income, population or land area shall not be reduced to less than the minimum requirements. Likewise, the income classification of the original local government unit shall not fall below its current income classification prior to such division.495 Abolition A local government unit may be abolished when its income, population or land area has been irreversibly reduced to less than the minimum standards prescribed for its creation under the LGC, as certified by the national agencies to Congress or to the Sanggunian concerned. Likewise, the law or, ordinance abolishing an LGU shall specify the province, city, municipality, or barangay with which the local government unit sought to be abolished will be incorporated or merged.496

492 Sec. 442, R.A. 7160 493 Sec. 450, id. 494 Sec. 461, id. 495 Sec.8, ibid Effects of Division of LGUs: On the legal existence of the original corporation: The division of municipal corporation extinguishes the corporate existence of the original municipality. On the property, powers and rights of the original corporation: Unless the law provides otherwise, when a municipal corporation is divided into two or more municipalities, each municipality acquires title to all the property, powers, rights and obligations falling within its territorial jurisdiction. 496 Sec.9, ibid

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3. Principles of Local Autonomy

Local Autonomy is self-governing. It is the granting of more powers, authority,

responsibilities and resources to the lower or local levels of a government system. The principle of local autonomy under the 1987 Constitution simply means decentralization. It does not make the local government sovereign within the state or an “imperium in imperio.”

4. Powers of Local Government Units (LGUs) a. Police Power497

The power of promoting public welfare by restraining and regulating the use of liberty and property.

b. Eminent Domain

The power to expropriate private property has been delegated by Congress to LGUs under Section 19, LGC. The exercise by LGUs of the power of eminent domain are subject to the usual constitutional limitations such as necessity, private property, taking, public use, just compensation and due process of law.498

The determination of whether there is genuine necessity for the exercise of the power of eminent domain is a justiciable question when exercised by the LGUs and generally a political question when exercised by Congress.499

c. Taxing Power500

497 General Welfare Clause Police power concerns government enactments, which interfere with personal liberty or property to promote the general welfare or the common good. 498 Private property already devoted to public use can still be a subject of expropriation by Congress but not by LGUs. The promulgation of the ordinance authorizing the local chief executive to exercise the power must be promulgated prior to the filing of the complaint for eminent domain with the proper court, and not after the court shall have determined the amount of just compensation to which the defendant is entitled. (Heirs of Suguitan vs. City of Mandaluyong, 328 SCRA 137) An LGU may immediately take possession of the property upon filing of expropriation proceedings and deposit in court of 15% of the FMV of the property. 499 The additional limitations on the exercise of the power of eminent domain by LGUs are, as follows: 1. Exercised only by the local chief executive, acting pursuant to a valid ordinance; 2. For public use or purpose or welfare, for the benefit of the poor and the landless; 3. Only after a valid and definite offer had been made to, and not accepted by, the owner; 4. An LGU shall file a complaint for expropriation on the strength of an ordinance and not a mere resolution passed by the Sanggunian (Municipality of Paranaque vs. VM Realty Corp., 292 SCRA 676) 500 The power to tax is inherent, thus, it need not be granted by the constitution.

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Taxes are enforced proportional contributions from persons and property levied by the state by virtue of its sovereignty, for the support of government and for all public needs.

Taxation is the method by which these contributions are exacted.501

d. Closure and Opening of Roads A local government unit may, pursuant to an ordinance, permanent or temporarily close or open any local road, alley, park, or square falling within its jurisdiction, provided that in case of permanent closure, such ordinance must be approved by at least 2/3 of all the members of the sanggunian, and when necessary, and adequate substitute for the public facility shall be provided.502

e. Legislative Power (1) Requisites for Valid Ordinance

i. Must not contravene the Constitution and any statute;

ii. Must not be unfair or oppressive;

ii. Must not be partial or discriminatory;

iv. Must not prohibit, but may regulate trade which is not illegal per se;

v. Must not be unreasonable; and

vi. Must be general in application and consistent with public policy.

(2) Local Initiative and Referendum Local Initiative Local referendum It is the legal process whereby the registered voters of a local government unit may directly propose, enact or amend any ordinance. It may be exercised by all

It is the legal process whereby the registered voters of the local government units may approve, amend or reject any ordinance enacted by the sanggunian.504

501Each local government unit shall have the power to create its own sources of revenues and to levy taxes, fees, and charges subject to such guidelines and limitations as the Congress may provide, consistent with the basic policy of local autonomy. Such taxes, fees, and charges shall accrue exclusively to the local governments (Sec. 5, Art. X, 1987 Cons.) 502 Sec. 21, R.A. 7160 Additional limitations in case of permanent closure: i. Adequate provision for the maintenance of public safety must be made; ii. The property may be used or conveyed for any purpose for which other real property may be lawfully used or conveyed, but no freedom park shall be closed permanently without provision for its transfer or relocation to a new site. Temporary closure may be made during an actual emergency, fiesta celebrations, public rallies, etc.

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registered voters of the provinces, cities, municipalities and barangays.503

f. Corporate Powers

1) To Sue and Be Sued

The rule is that suit is commenced by the local executive, upon the authority of the Sanggunian, except when the City Councilors, by themselves and as representatives of or behalf of the City, bring the action to prevent unlawful disbursement of City funds.505

2) To Acquire and Sell Property

i. The local government unit may acquire real or personal, tangible or intangible

property, in any manner allowed by law506

ii. The local government unit may alienate only patrimonial property, upon proper authority.

iii. In the absence of proof that the property was acquired through corporate or private funds, the presumption is that it came from the State upon the creation of the municipality and, thus, is governmental or public property.507

iv. Town plazas are properties of public dominion; they may be occupied temporarily, but only for the duration of an emergency.508

v. A public plaza is beyond the commerce of man, and cannot be the subject of lease or other contractual undertaking. And, even assuming the existence of a valid lease of the public plaza or part thereof, the municipal resolution effectively terminated the agreement, for it is settled that the police power cannot be surrendered or bargained away through the medium of a contract.509

3) To Enter Into Contracts

503 The power of local initiative shall not be exercised more than once a year. Initiative shall extend only to subjects or matters which are within the legal powers of the sanggunian to enact. 504 The local referendum shall be held under the control and direction of the Comelec within 60 days (in case of provinces), 45 days (in case of municipalities) and 30 days (in case of barangays). The Comelec shall certify and proclaim the results of the said referendum. 505 City Council of Cebu vs. Cuison, 47 SCRA 325. 506 e.g., sale, donation, etc 507 Salas vs. Jarencio, 48 SCRA 734; Rebuco vs. Villegas, 55 SCRA 656 508 Espiritu vs. Municipal Council of Pozorrubio, Pangasinan, 102 Phil. 866 509 Villanueva vs. Castaneda, 154 SCRA 142

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(a) Requisites

i. The local government unit has the express, implied or inherent power to enter into the particular contract.

ii. The contract is entered into by the proper department, board, committee, officer or agent. Unless otherwise provided by the Code, no contract may be entered into by the local chief executive on behalf of the local government unit without prior authorization by the sangguniang concerned.

iii. The contract must comply with certain substantive requirements.510

iv. The contract must comply with the formal requirements of written contracts.511

(b) Ultra Vires Contracts

When a contract is entered into without compliance with the first and the third requisites,512 the same is ultra vires and is null and void. Such contract cannot be ratified or validated. Ratification of defective municipal contracts is possible only when there is non-compliance with the second and/or fourth requirements above. Ratification may be express or implied.

g. Liability of LGUs Specific provisions making LGUs liable:

a. Liability for damages- Local government units and their officials are not exempt from liability for death or injury to persons or damage to property.513

b. The local government unit is liable in damages for death or injuries suffered by

reason of the defective condition of roads, streets, bridges, public buildings and other public works.514

c. The State is responsible when it acts through a special agent.515

510 i.e., when expenditure of public fund is to be made, there must be an actual appropriation and a certificate of availability of funds 511 e.g., the Statute of Frauds 512 supra 513 Sec. 24, R.A. 7160 514 Art. 2189, NCC 515 Art. 2180, par.6, id.

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d. The local government unit is subsidiarily liable for damages suffered by a person by reason of the failure or refusal of a member of the police force to render aid and prosecution in case of danger to life and property.516

Liability for Tort.

a. If the local government unit is engaged in governmental functions, it is not liable.

b. If engaged in proprietary functions, local government unit is liable.

h. Settlement of Boundary Disputes

Boundary disputes between and among local government units shall, as much as possible, be settled amicably.

To this end: a. Boundary disputes involving two or more barangays in the same city or

municipality shall be referred for settlement to the sangguniang panlungsod or sangguniang bayan concerned.

b. Boundary disputes involving two or more municipalities within the same province shall be referred for settlement to the sangguniang panlalawigan concerned.

c. Boundary disputes involving municipalities or component cities of different

provinces shall be jointly referred for settlement to the sanggunians of the provinces concerned.

d. Boundary disputes involving a component city or municipality on the one hand and a highly urbanized city on the other, or two or more highly urbanized cities, shall be jointly referred for settlement to the respective sanggunians of the parties.517

i. Succession of Elective Officials

Rules:518

A. Permanent vacancies: A permanent vacancy arises when an elective local official fills a higher vacant office, refuses to assume office, fails to qualify, dies, is removed from office, voluntarily resigns, or is permanently incapacitated to discharge the functions of his office.

a. Governor and Mayor

516 Art. 34, id. 517 Sec. 118 a-‐d, R.A. 7160 518 Secs. 44-‐46, id.

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i. Vice Governor and Vice Mayor

ii. Sanggunian members according to ranking

b. Punong barangay

i. Highest ranking sanggunian member

ii. Second highest ranking sangguniang barangay member

c. Ranking in the sanggunian shall be determined on the basis of the proportion of the votes obtained to the number of registered votes in each district.

d. Ties will be resolved by drawing of lots.519

e. Sanggunian:

i. Provinces, highly urbanized cities and independent component cities-

appointment by the President

ii. Component city and municipality- appointment by governor

iii. Sangguniang barangay- appointment by mayor

iv. Except for the sangguniang barangay, the appointee shall come from the political party of the member who caused the vacancy.520

v. If the member does not belong to any party, the appointee shall be recommended by the sanggunian.

vi. The appointee for the sangguniang barangay shall be recommended by the sangguniang barangay.

vii. Vacancy in the representation of the youth and the barangay in the sanggunian shall be filled by the official next in rank of the organization.521

j. Discipline of Local Officials

(1) Elective Officials (a) Grounds

An elective local official may be disciplined, suspended, or removed from office on any of the following grounds:

519 Sec. 44, id. 520 A nomination and a certificate of membership of the appointee from the highest official of the political party concerned are conditions sine qua non, and any appointment without such nomination and certificate shall be null and void and shall be a ground for administrative action against the official concerned. 521 Sec. 45, id.

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1. Disloyalty to the Republic of the Philippines.

2. Culpable violation of the Constitution

3. Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of

duty.

4. Commission of any offense involving moral turpitude or an offense punishable by at least prision mayor.

5. Abuse of authority.

6. Unauthorized absence for 15 consecutive working days, except in the case of

members of the sangguniang panlalawigan, panlungsod, bayan and barangay.

7. Application for, or acquisition of, foreign citizenship or residence or the status of elective barangay officials, shall be filed before the sangguiniang panlungsod or sangguniang bayan concerned, whose decision shall be final and executory.

(b) Jurisdiction

1. By the President, if the respondent is an elective official of a province, a highly

urbanized or an independent component city;

2. By the governor, if the respondent is an elective local official of a component city or municipality;

3. By the mayor, if the respondent is an elective official of the barangay.

(c) Preventive Suspension Who may impose

1. By the President, if the respondent is an elective official of a province, a highly urbanized or an independent component city; 2. By the governor, if the respondent is an elective local official of a component city or municipality;

3. By the mayor, if the respondent is an elective official of the barangay.522

522 The authority to preventively suspend is exercised concurrently by the Ombudsman, pursuant to R.A. 6770; the same law authorizes a preventive suspension of six months (Hagad vs. Gozo-‐Dadole, G.R. No. 108072, Dec. 12, 1995).

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When may be imposed

At any time:

1. After the issues are joined;

2. When the evidence of guilt is strong; and

3. Given the gravity of the offense, there is great probability that the 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.523

(d) Removal

A verified complaint against any erring local elective official shall be filed to the Office of the President if the official is of the province or city, to the Sangguniang Panlalawigan in case municipal elective officials, or to the Sangguniang Bayan or Panlunsod in case of barangay officials.524

Grounds:525

1. Gross Misconduct: irregularity in official duties.526

2. Dishonesty

3. Abandonment

523 Provided that any single preventive suspension shall not extend beyond 60 days, and in the event several administrative cases are filed against the respondent, he cannot be suspended for more than 90 days within a single year on the same ground or grounds existing and known at the time of the first suspension. 524 Sec. 61, R.A. 7160 525 Common Grounds 526 liability for gross misconduct may arise when the act, although not one of the official duties, where such act was committed in the workplace or where there is final conviction in a criminal case

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4. Gross Negligence

(e) Administrative Appeal Decisions may, within 30 days from receipt thereof, be appealed to:

1. The sangguniang panlalawigan, in the case of decisions of component cities’ sangguniang panlungsod and the sangguiniang bayan;

2. The Office of the President, in the case of decisions of the sangguniang panlalawigan and the sangguniang panlungsod of highly urbanized cities and independent component cities. Decisions of the Office of the President shall be final and executory.

(f) Doctrine of Condonation Condonation by the people of the offense when an incumbent official is reelected.

(2) Appointive Officials527

Officials common to all Municipalities, Cities and Provinces528 a. Secretary to the Sanggunian

b. Treasurer

c. Assessor

d. Accountant

e. Budget Officer

f. Planning and Development Coordinator

g. Engineer

h. Health Officer

i. Civil Registrar

j. Administrator

k. Legal Officer

l. Agriculturist

m. Social Welfare and Development Officer

527In the barangay, the mandated appointive officials are the Barangay Secretary and the Barangay Treasurer, although other officials of the barangay may be appointed by the punong barangay. 528 Secs. 469-‐490, R.A. 7160

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n. Environment and Natural Resources Officer

o. Architect

p. Information Officer

q. Cooperatives Officer

r. Population Officer

s. Veterinarian

t. General Services Officer

k. Recall529

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.

1. By whom exercised- by the registered voters of a local government unit to which the local elective official subject to such recall belongs.

2. Two modes of initiating recall: i. By a preparatory recall assembly530

529 The elective local official sought to be recalled shall not be allowed to resign while the recall process is in progress. Limitations on Recall: 1. Any elective local official may be the subject of a recall election only once during his term of office for loss of confidence. 2. No recall shall take place within one year from the date of the official’s assumption to office or one year immediately preceding a regular local election. The official sought to be recalled is automatically a candidate. Recall shall be effective upon the election and proclamation of successor receiving the highest number of votes. 530 composed of the following: i. Provincial level: All mayors, vice mayors and sanggunian members of the municipalities and component cities. ii. City level: All punong barangay and sangguniang barangay members in the city.

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ii. By the registered voters of the local government unit531

l. Term Limits

Three (3) years, starting from noon of June 30, 1992, or such date as may be

provided by law, except that of elective barangay officials. No local elective official shall serve for more than three consecutive terms in the same position. The term of office of barangay officials and members of the sangguniang kabataan shall be for five years, which shall begin after the regular election of barangay officials on the second Monday of May, 1997.532

The three-term limit on a local official is to be understood to refer to terms for

which the official concerned was elected. Thus, a person who was elected Vice Mayor in 1988 and who, because of the death of the Mayor, became Mayor in 1989, may still be eligible to run for the position of Mayor in 1998, even if elected as such in 1992 and 1995.533 After three consecutive terms, an elective local official cannot seek immediate reelection for a fourth term. The prohibited election refers to the next regular election for the same office following the end of the third consecutive term. Any other subsequent election, like a recall election is no longer covered by the prohibition.534

M. National Economy and Patrimony535 1. Regalian Doctrine536

iii. Legislative district level: Where sangguniang panlalalwigan members are elected by district, all elective municipal officials in the district; and in cases where sangguniang panglungsod members are elected by district, all elective barangay officials in the district. iv. Municipal level: All punong barangay and sangguniang barangay members in the municipality. Procedure for initiating recall by preparatory recall assembly: A majority of all the preparatory recall assembly members may convene in session in a public place and initiate a recall proceeding against any elective official in the local government unit concerned. Recall of provincial, city or municipal officials shall be validly initiated through a resolution adopted by a majority of all the members of the preparatory recall assembly concerned during its session called for that purpose. 531 Initiation of recall by registered voters: Recall of a provincial, city, municipal or barangay official may also be validly initiated upon petition by at least 25% of the total number of registered voters in the local government unit concerned during the election in which the local official sought to be recalled was elected. 532 R.A. 8524 533 Borja v. Comelec, G.R. No. 133495, Sept. 3, 1998 534 Socrates vs. Comelec, G.R. No. 154512, November 12, 2002 535 Art. XII 536 Sec. 2, Art. XII -‐ universal feudal theory that all lands were held from the Crown (Holmes, Cariño v. Insular Government, 212 US 449). Exception: any land in the possession of an occupant and of his predecessors-‐in-‐interest since time immemorial. (Oh Cho v. Director of Land, 75 Phil 890)

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All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State.

2. Nationalist and Citizenship Requirement Provisions Lands of the public domain are classified into agricultural, forest or timber, mineral lands and national parks. Agricultural lands of the public domain may be further classified by law according to the uses to which they may be devoted. Alienable lands of the public domain shall be limited to agricultural lands. Private corporations or associations may not hold such alienable lands of the public domain except by lease, for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and not to exceed one thousand hectares in area. Citizens of the Philippines may lease not more than five hundred hectares, or acquire not more than twelve hectares thereof, by purchase, homestead, or grant. Taking into account the requirements of conservation, ecology, and development, and subject to the requirements of agrarian reform, the Congress shall determine, by law, the size of lands of the public domain which may be acquired, developed, held, or leased and the conditions therefor.537 The Congress shall, upon recommendation of the economic and planning agency, when the national interest dictates, reserve to citizens of the Philippines or to corporations or associations at least sixty per centum of whose capital is owned by such citizens, or such higher percentage as Congress may prescribe, certain areas of investments. The Congress shall enact measures that will encourage the formation and operation of enterprises whose capital is wholly owned by Filipinos.

In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos. The State shall regulate and exercise authority over foreign investments within its national jurisdiction and in accordance with its national goals and priorities.538 The State shall promote the preferential use of Filipino labor, domestic materials and locally produced goods, and adopt measures that help make them competitive.539

The State shall pursue a trade policy that serves the general welfare and utilizes all forms and arrangements of exchange on the basis of equality and reciprocity.540

3. Exploration, Development and Utilization of Natural Resources

The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or

537 Sec. 3 538 Sec. 10 539 Sec. 12 540 Sec. 13

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it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least 60 per centum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law.

In cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the development of waterpower, beneficial use may be the measure and limit of the grant.

The State shall protect the nations marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.

The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as cooperative fish farming, with priority to subsistence fishermen and fish workers in rivers, lakes, bays, and lagoons.

The President may enter into agreements with foreign-owned corporations involving either technical or financial assistance for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils according to the general terms and conditions provided by law, based on real contributions to the economic growth and general welfare of the country. In such agreements, the State shall promote the development and use of local scientific and technical resources.

The President shall notify the Congress of every contract entered into in accordance with this provision, within thirty days from its execution.541

4. Franchises, Authority and Certificates for Public Utilities No franchise, certificate, or any other form of authorization for the operation of a public utility shall be granted except to citizens of the Philippines or to corporations or associations organized under the laws of the Philippines, at least sixty per centum of whose capital is owned by such citizens; nor shall such franchise, certificate, or authorization be exclusive in character or for a longer period than fifty years. Neither shall any such franchise or right be granted except under the condition that it shall be subject to amendment, alteration, or repeal by the Congress when the common good so requires. The State shall encourage equity participation in public utilities by the general public. The participation of foreign investors in the governing body of any public utility enterprise shall be limited to their proportionate share in its capital, and all the executive and managing officers of such corporation or association must be citizens of the Philippines.542

5. Acquisition, Ownership and Transfer of Public and Private Lands

541 Sec. 2 542 Sec. 11

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Save in cases of hereditary succession, no private lands shall be transferred or conveyed except to individuals, corporations, or associations qualified to acquire or hold lands of the public domain.543 Notwithstanding the provisions of Section 7 of this Article, a natural-born citizen of the Philippines who has lost his Philippine citizenship may be a transferee of private lands, subject to limitations provided by law. 544

6. Practice of Professions The sustained development of a reservoir of national talents consisting of Filipino scientists, entrepreneurs, professionals, managers, high-level technical manpower and skilled workers and craftsmen in all fields shall be promoted by the State. The State shall encourage appropriate technology and regulate its transfer for the national benefit. The practice of all professions in the Philippines shall be limited to Filipino citizens, save in cases prescribed by law.545

7. Organization and Regulation of Corporations, Private and Public

The use of property bears a social function, and all economic agents shall contribute to the common good. Individuals and private groups, including corporations, cooperatives, and similar collective organizations, shall have the right to own, establish, and operate economic enterprises, subject to the duty of the State to promote distributive justice and to intervene when the common good so demands.546

8. Monopolies, Restraint of Trade and Unfair Competition The State shall regulate or prohibit monopolies when the public interest so requires.

No combinations in restraint of trade or unfair competition shall be allowed.547

N. Social Justice and Human Rights548 1. Concept of Social Justice

Social Justice as envisioned by the Constitution:

- equitable diffusion of wealth and political power for common good;

543 Sec. 7 544 Sec. 8 545 Sec. 14 546 Sec. 6 547 Sec. 19 548 Art. XIII

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- regulation of acquisition, ownership, use and disposition of property and its increments; and

- creation of economic opportunities based on freedom of initiative and self-reliance.549

2. Commission on Human Rights550

Powers and functions: 1. Investigate, on its own or on complaint by any party, all forms of human rights

violations involving civil and political rights; 2. Adopt its operational guidelines and rules of procedure, and cite for contempt for

violations thereof in accordance with the Rules of Court; 3. Provide appropriate legal measures for the protection of 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 under-privileged whose human rights have been violated or need protection;

4. Exercise visitorial powers over jails, prisons, or detention facilities; 5. Establish a continuing program of research, education, and information to

enhance respect for the primacy of human rights; 6. Recommend to Congress effective measures to promote human rights and to

provide for compensation to victims of violations of human rights, or their families; 7. Monitor the Philippine Government's compliance with international treaty

obligations on human rights; 8. 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 investigation conducted by it or under its authority;

9. Request the assistance of any department, bureau, office, or agency in the

performance of its functions; 10. Appoint its officers and employees in accordance with law; and 9. Perform such other duties and functions as may be provided by law.551

549,Secs. 1 and 2, id. 550 composed of a Chairman and four Members who must be natural-‐born citizens of the Philippines and a majority of whom shall be members of the Bar. 551 Sec. 18

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O. Education, Science, Technology, Arts, Culture and Sports 1. Academic Freedom

Aspects:

1. to the institution – to provide that atmosphere which is most conducive to

speculation, experimentation and creation;552

2. to the faculty -

a. freedom in research and in the publication of the results, subject to the adequate performance of his other academic duties;

552 Freedom to determine for itself on academic grounds: a. who may teach; b. what may be taught; c. how shall it be taught; and d. who may be admitted to study (Miriam College Foundation v. CA, GR No. 127930, December 15, 2000); As part of its constitutionally enshrined academic freedom, the University of the Philippines has the prerogative to determine who may teach its students. The Civil Service Commission has no authority to force it to dismiss a member of its faculty even in the guise of enforcing Civil Service Rules.(UP v. Civil Service Commission, GR No.132860, April 3, 2001)

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b. freedom in the classroom in discussing his subject, less controversial matters which bear no relation to the subject; c. freedom from institutional censorship or discipline, limited by his special position in the community.

3. to the student - right to enjoy in school the guarantee of the Bill of rights553

P. Public International Law 1. Concepts

It is a body of legal principles, norms and processes which regulates the relations of States and other international persons and governs their conduct affecting the interest of the international community as a whole.

The body of legal rules, which apply between sovereign states and such other entities as have been granted international personality.

a. Obligations Erga Omnes

A legal term describing obligations owed by states towards the community of states as a whole.554

All states have a legal interest in its compliance, and thus all States are entitled to invoke responsibility for breach of such an obligation.555

The concept was recognized in the International Court of Justice's decision in the

Barcelona Traction case, where it said: 553 Non v. Dames, 185 SCRA 523 554 Examples of erga omnes norms include piracy, genocide, slavery, torture, and racial discrimination. 555 Case Concerning The Barcelona Traction, ICJ 1970

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"An essential distinction should be drawn between the obligations of a State towards

the International community as a whole, and those arising vis-a-vis another State In the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the Importance of the rights Involved, all States can be held to have a legal Interest In their protection; they are obligations erga omnes. Such obligations derive, for example. In contemporary International law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, Including protection from slavery and racial discrimination. Some of the corresponding rights of protection have entered Into the body of general international law...; others are conferred by International Instruments of a universal or quasi universal character."

b. Jus Cogens

A norm accepted and recognized by the international community/of States as a whole as a norm from which no derogation is permitted and which canbe modified only by a subsequent norm of general international law having the same character.556

c. Concept of Aeguo Et Bono

It is a judgment based on considerations of fairness, not on considerations of existing law, that is, to simply decide the case based upon a balancing of the equities.557

This is the basis for a decision by an international tribunal on the grounds of justice and fairness - equity overrides all other rules of law.

2. International and National Law

International Law National law The 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.558

A law or group of laws that apply to a single country or nation, within a determined territory and its inhabitants.

Adopted by states as a common rule of Action.

Issued by a political superior for observance.

556 Art. 53, Vienna Convention on the Law of Treaties Examples: (1) prohibition against the unlawful use of force; (2) prohibition against piracy, genocide, and slavery 557 Brownlie, 2003 558 American Third Restatement

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Regulates relation of state and other international persons.

Regulates relations of individuals among themselves or with their own states.

Derived principally from treaties, international customs and general principles of law.

Consists mainly of enactments from the lawmaking authority of each state.

Resolved thru state-‐to-‐state transactions.

Redressed thru local administrative and judicial processes.

Collective responsibility because it attaches directly to the state and not to its nationals.

Breach of which entails individual Responsibility.

3. Sources

Primary Secondary Sources a. Treaties- the general rule is that the treaty to be considered a direct source of international law, it must be concluded by sizable number of states and thus reflect the will or at least the consensus of the family of nations. b. Custom- a practice which has grown up between states and has come to be accepted as binding by the mere fact of persistent usage over a long period of time. Custom is distinguished from usage in that the latter while also a long established way of doing things by states, is not coupled with the conviction that it is obligatory and right.

a. Decisions of international tribunals b. Writings and teachings of the most highly qualified publicists of various nations.

559 e.g. prescription, estoppel, consent, res judicata and pacta sunt servanda

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c. General Principles of Law- mostly derived from the law of nature and are observed by the majority of states because they are believed to be good and just.559

4. Subjects

A subject of international law is an entity with capacity of possessing international rights and duties and of bringing international claims.

a. States A state is a group of people, living together in a fixed territory, organized for political ends under an independent government, and capable of entering into international relations with other states.

b. International Organizations

May be vested with international personality, provided that they are non-political and are autonomous and not subject to control by any state.560

c. Individuals

Although traditionally, individuals have been considered merely as objects, not subjects, of international law, they have also been granted a certain degree of international personality under a number of international agreements.

5. Diplomatic and Consular Law561 6. Treaties

Treaty is a formal agreement, usually but not necessarily in writing, which is entered into by states or entities possessing the treaty-making capacity, for the purpose of regulating their mutual relations under the law of nations.562

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.563

560 e.g. ILO, FAO, WHO 561 See Reference 562 As a rule, a treaty is binding only on the contracting parties, including not only the original signatories but also other states which, although they may not have participated in the negotiation of the agreements, have been allowed by its term to sign it later by a process known as accession.

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7. Nationality and Statelessness

Nationality Statelessness Membership in a political community with all its concomitant rights and obligations.564 It is the tie that binds the individual to his State, from which he can claim protection and whose laws he is obliged to obey.

The condition or status of an individual who is born without any nationality or who loses his nationality without retaining or acquiring another.565

a. Vienna Convention on the Law of Treaties566

7. State responsibility

1. Doctrine of state responsibility

A state may be held liable for injuries and damages sustained by the alien while in the territory of the state provided:

1. the act or omission constitutes an international delinquency; 2. the act or omission is directly or indirectly imputable to the State; and 3. injury to the claimant State indirectly because of damage to its national.

8. Jurisdiction of States

a. Territoriality principle

Vests jurisdiction in state where offense was committed.567

b. Nationality principle and statelessness

563 Vienna Convention on the Law of Treaties, 1969 564 An individual acquires the nationality of the state where he is born jure soli or the nationality of his parents jure sanguinis. 565 A stateless individual is, from the traditional viewpoint, powerless to assert any right that otherwise would be available to him under international law where he is a national of a particular state. Any wrong suffered by him through the act of omission of a state would be damnum absque injuria for in theory no other state had been offended and no international delinquency committed as a result of the damage caused upon him. Treatment of Stateless Individual -‐ international conventions provide that stateless individuals are to be treated more or less like the subjects of a foreign state. 566 see Reference 567 Art. 14, NCC

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Nationality principle

Vest jurisdiction in state of offender.568

Statelessness International conventions provide that stateless individuals are to be treated more or less like the subjects of a foreign state.

c. Protective principle

Vest jurisdiction in state whose national interests is injured or national security compromised.569

d. Universality principle

Vest jurisdiction in state which has custody of offender of universal crimes.570 e. Passive personality principle

Vests jurisdiction in state of offended party.

f. Conflicts of Jurisdiction

A conflict of jurisdiction arises if a dispute can be brought entirely or partly before two or more different courts or tribunals.

9. Treatment of Aliens A State may be held responsible for an international delinquency directly or indirectly imputable to it which causes injury to the national of another State. Liability will attach to the State where its treatment of the alien falls below the international standard of justice or where it is remiss in according him the protection or redress that is warranted by the circumstances.571

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.

The standards to be used are the following:

568 Art. 15, id. 569 counterfeiting, treason, espionage 570 piracy, genocide 571 Doctrine of State Responsibility

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National treatment/ equality of treatment Minimum international standard Aliens are treated in the same manner as nationals of the State where they reside

However harsh the municipal laws might be, against a State’s own citizens, aliens should be protected by certain minimum standards of humane protection.

a. Extradition

(1) Fundamental Principles

1. Extradition is based on the consent of the state of asylum as expressed in a treaty or manifested as an act of goodwill.

2. Under the principle of specialty, a fugitive who is extradited may be tried only for the crime specified in the request for extradition and included in the list of offenses in the extradition treaty.572

3. Any person may be extradited, whether he be a national of the requesting state, of the state of refuge or of another state. The practice of many states now, however, is not to extradite their own nationals but to punish them under their own laws in accordance with the nationality principle of criminal jurisdiction.

4. Political and religious offenders are generally not subject to extradition.573 5. In the absence of special agreement, the offense must have been committed within

the territory or against the interests of the demanding state.

6. The act for which the extradition is sought must be punishable in both the requesting and requested states under what is known as the rule of double criminality.574

(2) Procedure575

1. Request through diplomatic representative with:

a. decision of conviction;

572 If he is charged with any other offense committed before his escape, the state of refuge -‐ and not the accused – has a right to object; Nevertheless, the prosecution will be allowed if the extraditing state agrees or does not complain. 573 In order to constitute an offense of a political character, there must be two or more parties in the state, each seeking to impose the government of their own choice on the other. Under the attentat clause, the murder of the head of state or any member of his family is not to be regarded as a political offense for purposes of extradition. Genocide is not a political offense. 574 Double Criminality Rule 575 Judicial and diplomatic process of request and surrender, P.D. 1069

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b. criminal charge and warrant of arrest;

c. recital of facts;

d. text of applicable law designating the offense;

e. pertinent papers.

2. DFA forwards request to DOJ;

3. DOJ files petition for extradition with RTC;576

4. 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

(a) they are sufficient in form and substance,

(b) they show compliance with the Extradition Treaty and Law, and

(c) the person sought is extraditable.

At his discretion, the judge may require the submission of further documentation or may personally examine the affiants and witnesses of the petitioner. If, in spite 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,577 who is at the same time summoned to answer the petition and to appear at scheduled summary hearings.

5. Hearing578

6. Appeal to CA within ten days whose decision shall be final and executory;

7. Decision forwarded to DFA through the DOJ;

8. Individual placed at the disposal of the authorities of requesting state – costs and expenses to be shouldered by requesting state.579

576 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. 577 Prior to the issuance of the warrant, the judge must not inform or notify the potential extraditee of the pendency of the petition, lest the latter be given the opportunity to escape and frustrate the proceedings. The foregoing procedure will “best serve the ends of justice” in extradition cases; (Government of the US vs. Hon. Purganan and Mark Jimenez G.R. No. G.R. No. 148571. September 24, 2002) 578 provide counsel de officio if necessary; 579 A state may not compel another state to extradite a criminal without going through the legal processes provided in the laws of the former. 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 provisional 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

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(3) Distinguished from Deportation

Extradition580 Deportation581 Affected at the request of the state of nation

Unilateral act of the local state

Based on offenses generally committed in the state of origin

Based on causes arising in the local state.

Calls for the return of the fugitive to the State of origin

An undesirable alien may be deported to a state other than his own or the state of origin.

9. International Human Rights Law a. Universal Declaration of Human Rights (UDHR)

The basic international statement of the inalienable and inviolable rights of human beings. It is the first comprehensive international human rights instrument. Rights covered: 1. Civil and political rights

2. Economic, social and cultural rights582

b. International Covenant on Civil and Political Rights (ICCPR)583

580 The surrender of a person by one state to another state where he is wanted for prosecution or, if already convicted for punishment. The extradition of a person is required only if there is a treaty between the state of refuge and the state of origin. In the absence of such a treaty, the local state has every right to grant asylum to the fugitive and to refuse to deliver him back to the latter state even if he is its national. 581 Removal of an alien out of a 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. 582 The exercise of these rights and freedoms may be subject to certain limitation, which must be determined by law, only for the purpose of securing due recognition and respect for the rights of others and of the meeting the just requirements of morality, public order and the general welfare in a democratic society. Rights may not be exercised contrary to the purposes and principles of the UN. 583 The UDHR and the ICCPR treat the right to freedom of movement and abode within the territory of a state, the right to leave a country and the right to enter one’s country as separate and distinct rights. The right to return to one’s country is not among the rights specifically guaranteed in the Bill of Rights, which

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Rights Guaranteed:

1. Right of the people to self-determination

2. Right to an effective remedy

3. Equal rights of men and women in the enjoyment of civil and political

rights/non-discrimination on the basis of sex

4. Right to life

5. Freedom from torture or cruel, inhuman or degrading punishment

6. Freedom from slavery

7. Right to liberty and security of person

8. Right to be treated with humanity in cases of deprivation of liberty

9. Freedom from imprisonment for failure to fulfill a contractual obligation

10. Freedom of movement and the right to travel

11. Right to a fair, impartial and public trial

12. Freedom from ex-post facto laws

13. Right of recognition everywhere as a person before the law

14. Right to privacy

15. Freedom of thought, conscience and religion

16. Freedom of expression

17. Freedom of peaceful assembly

18. Freedom of association

19. Right to marry and found a family

20. Right of a child to protection, a name and nationality

21. Right to participation, suffrage and access to public service

22. Right to equal protection before the law

23. Right of minorities to enjoy their own culture, to profess and practice their religion and to use their own language

treats only of liberty of abode and the right to one’s country, but it is our well-‐considered view that the right to return may be considered, as a generally accepted principle of international law, and under our constitution, is part of the law of the land. However, it is distinct and separate from the right to travel and enjoys a different protection under the ICCPR, against being arbitrarily deprived thereof. (Marcos vs. Manglapus, G.R. No. 88211, Sept. 15, 1989)

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c. International Covenant on Economic, Social and Cultural Rights (ICESCR)

Under the Convention on the Elimination of all forms of Discrimination Against women (CEDAW): 1. Guarantee of economic, social and cultural rights

2. Equal rights with men as regards education

3. Equal rights with men as regards employment

4. Prohibition against dismissals due to marriage, pregnancy or maternity leave

5. Promotion of child-care facilities, special protection to pregnant women as regards type of work

6. Equal access with men as regards health services, right to services in connection with pregnancy, adequate nutrition during pregnancy and lactation and confinement and the post natal period.

7. Right to enter marriage, to freely choose a spouse and to enter into marriage only with free and full consent

8. Equal rights and responsibilities as parents, to freely decide number of children and access to information and education to be able to exercise their rights.

10. International Humanitarian Law (IHL)584 and Neutrality International humanitarian law is a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare. International humanitarian law is also known as the law of war or the law of armed conflict.585

a. Categories of Armed Conflicts

584 Two (2) branches: 1. Law of Geneva – Designed to safeguard military personnel who are no longer taking part in the fighting and people not actively. 2. Law of the Hague – Establishes the rights and obligations of belligerents in the conduct of military operations, and limits the means of harming the enemy. 585 International humanitarian law is part of international law, which is the body of rules governing relations between States. International law is contained in agreements between States – treaties or conventions – in customary rules, which consist of State practice considered by them as legally binding, and in general principles. International humanitarian law applies to armed conflicts. It does not regulate whether a State may actually use force; this is governed by an important, but distinct, part of international law set out in the United Nations Charter. The four (4) Geneva Conventions of 1949 are the core of international humanitarian law. The Geneva Conventions were adopted to limit the human suffering in times of armed conflict.

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(1) International Armed Conflicts Those in which at least two States are involved. They are subject to a wide range of rules, including those set out in the four (4) Geneva Conventions and Additional Protocol I. All cases of declared war or any other armed conflict which may arise between two (2) or more of the Highest contracting parties, even if the State of war is not recognized by one of them.586

It also applies to armed conflict between the government and a rebel or insurgent movement.587

(2) Internal or Non-International Armed Conflict

Those restricted to the territory of a single State, involving either regular armed forces fighting groups of armed dissidents, or armed groups fighting each other. A more limited range of rules apply to internal armed conflicts and are laid down in Article 3 common to the four (4) Geneva Conventions as well as in Additional Protocol II.

These are governed by the provisions of human rights law and such measures of domestic legislation as may be invoked. IHL does not apply to situations of violence not amounting in intensity to an armed conflict.

(3) Wars of National Liberation These are armed conflicts in which people are fighting against colonial dominationand alien occupation and against racist regimes in the exercise of their right to self-determination.588 These are sometimes called insurgencies, rebellions or wars of independence.

The first Protocol of 1977 provides that peoples fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination are to be treated as if they were engaged in an international armed conflict and not a civil war. There is considerable difficulty over the meaning of this phrase, and it may be difficult to apply in practice.589

b. Core International Obligations of States in IHL

Article 1 of all four (4) Geneva Conventions is a key provision when it comes to a state’s responsibilities under international humanitarian law (IHL). It provides that states are responsible to “respect and ensure respect” for the Conventions in all circumstances.

586 Art. 2, Geneva Convention of 1949 587 Art. 3, id. 588[Article 1(4), Protocol I 589 Encyclopedia Britannica

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“To respect” means that all state institutions, and all other individuals or bodies under their authority, must follow the rules of the Geneva Conventions. A state has a duty590 to do everything it can to ensure that the Conventions are respected by all.

A state is responsible for its soldiers' behaviour when they take part in conflicts abroad, for example, in peace-keeping missions. In fact, states are responsible to ensure that the rights in the Conventions are respected in all places under its control, for example it has to ensure the protection of prisoners in a prison, which is run by its armed forces abroad.

In order to fulfill its obligation to respect IHL, a state must exercise rigorous control

over its soldiers, other relevant personnel, and institutions involved in the fighting or decision-making surrounding an armed conflict.

To "ensure respect" mainly focuses on the obligation of third states that are not directly involved in the conflict - the international community – to intervene if the parties to the conflict themselves violate the Conventions. This section only deals with the obligations of the primary violating state.

c. Principles of IHL

(1) Treatment of Civilians591

In cases not covered by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.592

(2) Prisoners of War

Rights and privileges: 1.They must be treated humanely, shall not be subjected to physical or mental

torture, shall be allowed to communicate with their families, and may receive food, clothing, educational and religious articles.

2.They may not be forced to reveal military data except the name, rank, serial number, army and regimental number and date of birth; they may not be compelled towork for military services.

590 the duty to exercise due diligence 591 Customary International Humanitarian Law, March 2005, Rules 1-‐24 592 Martens clause/Principle of humanity

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3.All their personal belonging except their arms and military papers remain their property. 4. They must be interned in a healthful and hygienic place.

5.After the conclusion of peace, their speedy repatriation must be accomplished as soon as is practicable.

d. Law on Neutrality

Law governing a country's abstention from participating in a conflict or aiding a participant of such conflict, and the duty of participants to refrain from violating the territory, seizing the possession, or hampering the peaceful commerce of the neutral countries.593

For example, the Neutrality Act of 1939,594 was passed by Congress for the purpose of preserving the neutrality of the United States and averting the risks that brought the United States into World War I.595 The codified law of traditional neutrality is to be found in The Hague Conventions Nos. V and XIII of 1907.

11. Law of the Sea596

a. Baselines

Consist of straight lines joining appropriate points of the outermost islands of the archipelago. Lines from which the breadth of the territorial sea, the contiguous zone and the exclusive economic zone is measured in order to determine the maritime boundaryof the coastal State.

b. Archipelagic States States constituted wholly by one or more archipelagos and may include other islands.597

(1) Straight Archipelagic Baselines

593 166 U.S. 1 594 22 U.S.C. Sec. 441 et seq., 595 37 F. Supp. 268, 272 596 United Nations Convention on the Law of the Law of the Sea (UNCLOS)

It defines the rights and obligations of nations in their use of the world’s oceans, establishing rules for business, the environment and the management of marine natural resources. 597 Art. 46, UNCLOS

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An archipelagic State may draw straight archipelagic baselines by joining the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which the ration of the water to the area of the land, including atolls, is between 1to 1 and 9 to 1.598

(2) Archipelagic Waters

These are waters enclosed by the archipelagic baselines, regardless of their depth or distance from the coast.599

Waters covered by the straight baseline which are areas which had not previously been considered as such. This has a right of innocent passage.

(3) Archipelagic Sea Lanes Passage It is the right of foreign ships and aircraft to have continuous, expeditious and unobstructed passage in sea lanes and air routes through or over the archipelagic waters and the adjacent territorial sea of the archipelagic state, “in transit between one part of thehigh seas or an exclusive economic zone.” All ships and aircraft are entitled to theright of archipelagic sea lanes passage.600 The exercise of the rights of navigation and overflight in the normal mode solely for the purpose of continuous, expeditious and unobstructed transit between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone.

c. Internal Waters

These are waters of lakes, rivers and bays landward of the baseline of the territorial sea. Waters on the landward side of the baseline of the territorial sea also form part of the internal waters of the coastal state. However, in the case of archipelagic states, waters landward of the baseline other than those of rivers, bays, and lakes, are archipelagic waters.601 All waters602 landwards from the baseline of the territory. Sovereignty over these waters is the same in extent as sovereignty over land, and there is no right of innocent passage.

d. Territorial Sea

598 Art. 47, id. 599 Art. 49[1], id. 600 Magallona, 2005; Art. 53[1] in relation with Art. 53[3], id. 601 Art. 8 [1], id. 602 part of the sea, rivers, lakes, etc.

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The belt of the sea located between the coast and internal waters of the coastal state on the one hand, and the high seas on the other, extending up to 12 nautical miles from the low-water mark, or in the case of archipelagic states, from the baselines.

e. Exclusive Economic Zone

An area extending not more than 200 nautical miles beyond the baseline. The coastal state has rights over the economic resource of the sea, seabed and subsoil – but the right does not affect the right of navigation and overflight of other states. It gives the coastal State sovereign rights over all economic resources of the sea, sea-‐bed and subsoil in an area extending not more than 200 nautical miles beyond the baseline from which the territorial sea is measured.603

f. Continental Shelf (1) Extended Continental Shelf

Refers to:

a. the seabed and the subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea, to a depth of 200 meters or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas; and

b. to the seabed and subsoil of similar areas adjacent to the coasts of islands. It is part of the continental shelf that lies beyond the 200 nautical miles from the

coastal baselines.

g. Tribunal of the Law of the Sea604 It is an independent judicial body established by the Third United Nations Convention on the Law of the Sea to adjudicate disputes arising out of the interpretation and application of the Convention. It was established after Ambassador Arvido Pardo Malta addressed the General Assemblyof the United Nations and called for “an effective international regime overthe seabed and ocean floor beyond a clearly defined national jurisdiction. Its seat is in Hamburg, Germany.

ITLOS is composed of 21 independent members elected by the States Parties605 to the UNCLOS from among persons with recognized competence in the field of the law of the sea and representing the principal legal systems of the world. ITLOS has jurisdiction 603 Arts. 55 & 57, id. 604 International Tribunal for the Law of the Sea (ITLOS) 605 States which have consented to be bound by the Convention and for which the Convention is in force

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over all disputes and all applications submitted to it in accordance with UNCLOS and over all matters specifically provided for in any other agreement which confers jurisdiction on the ITLOS.

12. Madrid Protocol and the Paris Convention for the Protection of Industrial Property

The "Protocol relating to the Madrid Agreement" ("Madrid Protocol") was adopted in 1989 and entered into force on December 1, 1995. The Madrid Protocol makes the Madrid System more flexible. For instance, it allows an application for international registration to be based upon a pending trademark application filed in the applicant's country of origin. Also, if the national application on which the international registration is based is refused, withdrawn or cancelled, the international registration may be converted into national applications without losing the original filing date or priority date.

The "Paris Convention for the Protection of Industrial Property"606 is the oldest

major international treaty concerning the protection of intellectual property. It was adopted in 1883 and has been revised several times. The Paris Convention provides for the following: 1. Creation of a legal entity recognized under international law comprised of the following administrative bodies: the World Intellectual Property Organization (WIPO), the Assembly (which comprises all member nations) and the Executive Committee.

2. National treatment: This means that nationals of any signatory country enjoy in all other signatory countries the advantages that each national law grants to citizens within their own nations.

3. Convention priority: Any person who has filed a trademark application in one of the signatory countries possesses a right to claim that filing date for priority purposes for trademark applications filed within six months in other signatory countries.

The Paris Convention ensures the nationals of any signatory country certain protection of their rights in all other signatory countries. These rights include the protection of well-known marks, protection of trade names and claims deriving from unfair competition. In some countries the Paris Convention is self-executing, which means that the Convention becomes enforceable by the signatory's mere accession and no further implementing legislation is required. The Paris Convention allows signatories to conclude special agreements in the field of protection of intellectual property, as long as these agreements do not contravene the regulations of the Paris Convention. The most important special agreements in relation to the protection of trademarks are: the Madrid Agreement, the Protocol relating to the Madrid Agreement, the TRIPS Agreement, the Nice Agreement, the Vienna Agreement, the Trademark Law Treaty, and the Madrid Agreement on Indications of Origin 606 Paris Convention

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13. International Environment Law

It is the branch of public international law comprising "those substantive,

procedural and institutional rules which have as their primary objective the protection of the environment," the term environment being understood as encompassing "both the features and the products of the natural world and those of human civilization.607

a. Principle 21 of Stockholm Declaration608

This declares that States have

1. The sovereign right to exploit their own resources pursuant to their own environmental policies, and

2. The responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.

14. International economic law

International economic law regulates the international economic order or economic relations among nations. However, the term ‘international economic law’ encompasses a large number of areas. It is often defined broadly to include a vast array of topics ranging from public international law of trade to private international law of trade to certain aspects of international commercial law and the law of international finance and investment. The International Economic Law Interests Group of the American Society of International Law includes the following non-exhaustive list of topics within the term ‘international economic law’:

(1) International Trade Law, including both the international law of the World Trade Organization and GATT and domestic trade laws;

(2) International Economic Integration Law, including the law of the European Union, NAFTA and Mercosur; International economic law: Section A

(3) Private International Law, including international choice of law, choice of forum, enforcement of judgments and the law of international commerce;

(4) International Business Regulation, including antitrust or competition law, environmental regulation and product safety regulation;

607 Philippe Sands, Principles of International Environmental Law, 2003 608 The Stockholm Declaration, or the Declaration of the United Nations Conference on the Human Environment, was adopted on June 16, 1972 in Stockholm, Sweden. It contains 26 principles and 109 recommendations regarding the preservation and enhancement of the right to a healthy environment.

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(5) International Financial Law, including private transactional law, regulatory law, the law of foreign direct investment and international monetary law, including the law of the International Monetary Fund and World Bank;

(6) The role of law in development;

(7) International tax law; and

(8) International intellectual property law.

International economic law is based on the traditional principles of international law such as:

_ pacta sunt servanda _ freedom _ sovereign equality _ reciprocity _ economic sovereignty.

It is also based on modern and evolving principles such as:

_ the duty to co-operate _ permanent sovereignty over natural resources _ preferential treatment for developing countries in general and the least-

developed countries in particular.

Include: Pertinent Supreme Court decisions promulgated up to January 31, 2013

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Reference

Omnibus Election Code

Section 233. When the election returns are delayed, lost or destroyed. - In case its copy of the election returns is missing, the board of canvassers shall, by messenger or otherwise, obtain such missing election returns from the board of election inspectors concerned, or if said returns have been lost or destroyed, the board of canvassers, upon prior authority of the Commission, may use any of the authentic copies of said election returns or a certified copy of said election returns issued by the Commission, and forthwith direct its representative to investigate the case and immediately report the matter to the Commission. The board of canvassers, notwithstanding the fact that not all the election returns have been received by it, may terminate the canvass and proclaim the candidates elected on the basis of the available election returns if the missing election returns will not affect the results of the election.

Section 234. Material defects in the election returns. - If it should clearly appear that some requisites in form or data had been omitted in the election returns, the board of canvassers shall call for all the members of the board of election inspectors concerned by the most expeditious means, for the same board to effect the correction: Provided, That in case of the omission in the election

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returns of the name of any candidate and/or his corresponding votes, the board of canvassers shall require the board of election inspectors concerned to complete the necessary data in the election returns and affix therein their initials: Provided, further, That if the votes omitted in the returns cannot be ascertained by other means except by recounting the ballots, the Commission, after satisfying itself that the identity and integrity of the ballot box have not been violated, shall order the board of election inspectors to open the ballot box, and, also after satisfying itself that the integrity of the ballots therein has been duly preserved, order the board of election inspectors to count the votes for the candidate whose votes have been omitted with notice thereof to all candidates for the position involved and thereafter complete the returns. The right of a candidate to avail of this provision shall not be lost or affected by the fact that an election protest is subsequently filed by any of the candidates.

Section 235. When election returns appear to be tampered with or falsified. - If the election returns submitted to the board of canvassers appear to be tampered with, altered or falsified after they have left the hands of the board of election inspectors, or otherwise not authentic, or were prepared by the board of election inspectors under duress, force, intimidation, or prepared by persons other than the member of the board of election inspectors, the board of canvassers shall use the other copies of said election returns and, if necessary, the copy inside the ballot box which upon previous authority given by the Commission may be retrieved in accordance with Section 220 hereof. If the other copies of the returns are likewise tampered with, altered, falsified, not authentic, prepared under duress, force, intimidation, or prepared by persons other than the members of the board of election inspectors, the board of canvassers or any candidate affected shall bring the matter to the attention of the Commission. The Commission shall then, after giving notice to all candidates concerned and after satisfying itself that nothing in the ballot box indicate that its identity and integrity have been violated, order the opening of the ballot box and, likewise after satisfying itself that the integrity of the ballots therein has been duly preserved shall order the board of election inspectors to recount the votes of the candidates affected and prepare a new return which shall then be used by the board of canvassers as basis of the canvass.

Section 236. Discrepancies in election returns. - In case it appears to the board of canvassers that there exists discrepancies in the other authentic copies of the election returns from a polling place or discrepancies in the votes of any candidate in words and figures in the same return, and in either case the difference affects the results of the election, the Commission, upon motion of the board of canvassers or any candidate affected and after due notice to all candidates concerned, shall proceed summarily to determine whether the integrity of the ballot box had been preserved, and once satisfied thereof shall order the opening of the ballot box to recount the votes cast in the polling place solely for the purpose of determining the true result of the count of votes of the candidates concerned.

Diplomatic and Consular Law

Vienna Convention on Diplomatic Relations (April 18, 1961)

Article 1

For the purpose of the present Convention, the following expressions shall have the meanings hereunder assigned to them:

(a) The “head of the mission” is the person charged by the sending State with the duty of acting in that capacity;

(b) The “members of the mission” are the head of the mission and the members of the staff of the mission;

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(c) The “members of the staff of the mission” are the members of the diplomatic staff, of the administrative and technical staff and of the service staff of the mission;

(d) The “members of the diplomatic staff” are the members of the staff of the mission having diplomatic rank;

(e) A “diplomatic agent” is the head of the mission or a member of the diplomatic staff of the mission;

(f) The “members of the administrative and technical staff” are the members of the staff of the mission employed in the administrative and technical service of the mission;

(g) The “members of the service staff” are the members of the staff of the mission in the domestic service of the mission;

(h) A “private servant” is a person who is in the domestic service of a member of the mission and who is not an employee of the sending State;

(i) The “premises of the mission” are the buildings or parts of buildings and the land ancillary thereto, irrespective of ownership, used for the purposes of the mission including the residence of the head of the mission.

Article 2

The establishment of diplomatic relations between States, and of permanent diplomatic missions, takes place by mutual consent.

Article 3

1. The functions of a diplomatic mission consist, inter alia, in:

(a) Representing the sending State in the receiving State;

(b) Protecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by international law;

(c) Negotiating with the Government of the receiving State;

(d) Ascertaining by all lawful means conditions and developments in the receiving State, and reporting thereon to the Government of the sending State;

(e) Promoting friendly relations between the sending State and the receiving State, and developing their economic, cultural and scientific relations.

2. Nothing in the present Convention shall be construed as preventing the performance of consular functions by a diplomatic mission.

Article 4

1. The sending State must make certain that the agrément of the receiving State has been given for the person it proposes to accredit as head of the mission to that State.

2. The receiving State is not obliged to give reasons to the sending State for a refusal of agrément.

Article 5

1. The sending State may, after it has given due notification to the receiving States concerned, accredit a head of mission or assign any member of the diplomatic staff, as the case may be, to more than one State, unless there is express objection by any of the receiving States.

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2. If the sending State accredits a head of mission to one or more other States it may establish a diplomatic mission headed by a chargé d’affaires ad interim in each State where the head of mission has not his permanent seat.

3. A head of mission or any member of the diplomatic staff of the mission may act as representative of the sending State to any international organization.

Article 6

Two or more States may accredit the same person as head of mission to another State, unless objection is offered by the receiving State.

Article 7

Subject to the provisions of articles 5, 8, 9 and 11, the sending State may freely appoint the members of the staff of the mission. In the case of military, naval or air attachés, the receiving State may require their names to be submitted beforehand, for its approval.

Article 8

1. Members of the diplomatic staff of the mission should in principle be of the nationality of the sending State.

2. Members of the diplomatic staff of the mission may not be appointed from among persons having the nationality of the receiving State, except with the consent of that State which may be withdrawn at any time.

3. The receiving State may reserve the same right with regard to nationals of a third State who are not also nationals of the sending State.

Article 9

1. The receiving State may at any time and without having to explain its decision, notify the sending State that the head of the mission or any member of the diplomatic staff of the mission is persona non grata or that any other member of the staff of the mission is not acceptable. In any such case, the sending State shall, as appropriate, either recall the person concerned or terminate his functions with the mission. A person may be declared non grata or not acceptable before arriving in the territory of the receiving State.

2. If the sending State refuses or fails within a reasonable period to carry out its obligations under paragraph 1 of this article, the receiving State may refuse to recognize the person concerned as a member of the mission.

Article 10

1. The Ministry for Foreign Affairs of the receiving State, or such other ministry as may be agreed, shall be notified of:

(a) The appointment of members of the mission, their arrival and their final departure or the termination of their functions with the mission;

(b) The arrival and final departure of a person belonging to the family of a member of the mission and, where appropriate, the fact that a person becomes or ceases to be a member of the family of a member of the mission;

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(c) The arrival and final departure of private servants in the employ of persons referred to in subparagraph (a) of this paragraph and, where appropriate, the fact that they are leaving the employ of such persons;

(d) The engagement and discharge of persons resident in the receiving State as members of the mission or private servants entitled to privileges and immunities.

2. Where possible, prior notification of arrival and final departure shall also be given.

Article 11

1. In the absence of specific agreement as to the size of the mission, the receiving State may require that the size of a mission be kept within limits considered by it to be reasonable and normal, having regard to circumstances and conditions in the receiving State and to the needs of the particular mission.

2. The receiving State may equally, within similar bounds and on a non-discriminatory basis, refuse to accept officials of a particular category.

Article 12

The sending State may not, without the prior express consent of the receiving State, establish offices forming part of the mission in localities other than those in which the mission itself is established.

Article 13

1. The head of the mission is considered as having taken up his functions in the receiving State either when he has presented his credentials or when he has notified his arrival and a true copy of his credentials has been presented to the Ministry for Foreign Affairs of the receiving State, or such other ministry as may be agreed, in accordance with the practice prevailing in the receiving State which shall be applied in a uniform manner.

2. The order of presentation of credentials or of a true copy thereof will be determined by the date and time of the arrival of the head of the mission.

Article 14

1. Heads of mission are divided into three classes, namely:

(a) That of ambassadors or nuncios accredited to Heads of State, and other heads of mission of equivalent rank;

(b) That of envoys, ministers and internuncios accredited to Heads of State; (c) That of chargés d’affaires accredited to Ministers for Foreign Affairs.

2. Except as concerns precedence and etiquette, there shall be no differentiation between heads of mission by reason of their class.

Article 15

The class to which the heads of their missions are to be assigned shall be agreed between States.

Article 16

1. Heads of mission shall take precedence in their respective classes in the order of the date and time of taking up their functions in accordance with article 13.

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2. Alterations in the credentials of a head of mission not involving any change of class shall not affect his precedence.

3. This article is without prejudice to any practice accepted by the receiving State regarding the precedence of the representative of the Holy See.

Article 17

The precedence of the members of the diplomatic staff of the mission shall be notified by the head of the mission to the Ministry for Foreign Affairs or such other ministry as may be agreed.

Article 18

The procedure to be observed in each State for the reception of heads of mission shall be uniform in respect of each class.

Article 19

1. If the post of head of the mission is vacant, or if the head of the mission is unable to perform his functions a chargé d’affaires ad interim shall act provisionally as head of the mission. The name of the chargé d’affaires ad interim shall be notified, either by the head of the mission or, in case he is unable to do so, by the Ministry for Foreign Affairs of the sending State to the Ministry for Foreign Affairs of the receiving State or such other ministry as may be agreed.

2. In cases where no member of the diplomatic staff of the mission is present in the receiving State, a member of the administrative and technical staff may, with the consent of the receiving State, be designated by the sending State to be in charge of the current administrative affairs of the mission.

Article 20

The mission and its head shall have the right to use the flag and emblem of the sending State on the premises of the mission, including the residence of the head of the mission, and on his means of transport.

Article 21

1. The receiving State shall either facilitate the acquisition on its territory, in accordance with its laws, by the sending State of premises necessary for its mission or assist the latter in obtaining accommodation in some other way.

2. It shall also, where necessary, assist missions in obtaining suitable accommodation for their members.

Article 22

1. The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission.

2. The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.

3. The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.

Article 23

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1. The sending State and the head of the mission shall be exempt from all national, regional or municipal dues and taxes in respect of the premises of the mission, whether owned or leased, other than such as represent payment for specific services rendered.

2. The exemption from taxation referred to in this article shall not apply to such dues and taxes payable under the law of the receiving State by persons contracting with the sending State or the head of the mission.

Article 24

The archives and documents of the mission shall be inviolable at any time and wherever they maybe.

Article 25

The receiving State shall accord full facilities for the performance of the functions of the mission.

Article 26

Subject to its laws and regulations concerning zones entry into which is prohibited or regulated for reasons of national security, the receiving State shall ensure to all members of the mission freedom of movement and travel in its territory.

Article 27

1. The receiving State shall permit and protect free communication on the part of the mission for all official purposes. In communicating with the Government and the other missions and consulates of the sending State, wherever situated, the mission may employ all appropriate means, including diplomatic couriers and messages in code or cipher. However, the mission may install and use a wireless transmitter only with the consent of the receiving State.

2. The official correspondence of the mission shall be inviolable. Official correspondence means all correspondence relating to the mission and its functions.

3. The diplomatic bag shall not be opened or detained.

4. The packages constituting the diplomatic bag must bear visible external marks of their character and may contain only diplomatic documents or articles intended for official use.

5. The diplomatic courier, who shall be provided with an official document indicating his status and the number of packages constituting the diplomatic bag, shall be protected by the receiving State in the performance of his functions. He shall enjoy person inviolability and shall not be liable to any form of arrest or detention.

6. The sending State or the mission may designate diplomatic couriers ad hoc. In such cases the provisions of paragraph 5 of this article shall also apply, except that the immunities therein mentioned shall cease to apply when such a courier has delivered to the consignee the diplomatic bag in his charge.

7. A diplomatic bag may be entrusted to the captain of a commercial aircraft scheduled to land at an authorized port of entry. He shall be provided with an official document indicating the number of packages constituting the bag but he shall not be considered to be a diplomatic courier. The mission may send one of its members to take possession of the diplomatic bag directly and freely from the captain of the aircraft.

Article 28

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The fees and charges levied by the mission in the course of its official duties shall be exempt from all dues and taxes.

Article 29

The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.

Article 30

1. The private residence of a diplomatic agent shall enjoy the same inviolability and protection as the premises of the mission.

2. His papers, correspondence and, except as provided in paragraph 3 of article 31, his property, shall likewise enjoy inviolability.

Article 31

1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:

(a) A real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;

(b) An action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State;

(c) An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.

2. A diplomatic agent is not obliged to give evidence as a witness.

3. No measures of execution may be taken in respect of a diplomatic agent except in the cases coming under subparagraphs (a), (b) and (c) of paragraph 1 of this article, and provided that the measures concerned can be taken without infringing the inviolability of his person or of his residence.

4. The immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State.

Article 32

1. The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under article 37 may be waived by the sending State.

2. Waiver must always be express.

3. The initiation of proceedings by a diplomatic agent or by a person enjoying immunity from jurisdiction under article 37 shall preclude him from invoking immunity from jurisdiction in respect of any counterclaim directly connected with the principal claim.

4. Waiver of immunity from jurisdiction in respect of civil or administrative proceedings shall not be held to imply waiver of immunity in respect of the execution of the judgement, for which a separate waiver shall be necessary.

Article 33

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1. Subject to the provisions of paragraph 3 of this article, a diplomatic agent shall with respect to services rendered for the sending State be exempt from social security provisions which may be in force in the receiving State.

2. The exemption provided for in paragraph 1 of this article shall also apply to private servants who are in the sole employ of a diplomatic agent, on condition:

(a) That they are not nationals of or permanently resident in the receiving State; and

(b) That they are covered by the social security provisions which may be in force in the sending State or a third State.

3. A diplomatic agent who employs persons to whom the exemption provided for in paragraph 2 of this article does not apply shall observe the obligations which the social security provisions of the receiving State impose upon employers.

4. The exemption provided for in paragraphs 1 and 2 of this article shall not preclude voluntary participation in the social security system of the receiving State provided that such participation is permitted by that State.

5. The provisions of this article shall not affect bilateral or multilateral agreements concerning social security concluded previously and shall not prevent the conclusion of such agreements in the future.

Article 34

A diplomatic agent shall be exempt from all dues and taxes, personal or real, national, regional or municipal, except:

(a) Indirect taxes of a kind which are normally incorporated in the price of goods or services;

(b) Dues and taxes on private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;

(c) Estate, succession or inheritance duties levied by the receiving State, subject to the provisions of paragraph 4 of article 39;

(d) Dues and taxes on private income having its source in the receiving State and capital taxes on investments made in commercial undertakings in the receiving State;

(e) Charges levied for specific services rendered;

(f) Registration, court or record fees, mortgage dues and stamp duty, with respect to immovable property, subject to the provisions of article 23.

Article 35

The receiving State shall exempt diplomatic agents from all personal services, from all public service of any kind whatsoever, and from military obligations such as those connected with requisitioning, military contributions and billeting.

Article 36

1. The receiving State shall, in accordance with such laws and regulations as it may adopt, permit entry of and grant exemption from all customs duties, taxes, and related charges other than charges for storage, cartage and similar services, on

(a) Articles for the official use of the mission;

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(b) Articles for the personal use of a diplomatic agent or members of his family forming part of his household, including articles intended for his establishment.

2. The personal baggage of a diplomatic agent shall be exempt from inspection, unless there are serious grounds for presuming that it contains articles not covered by the exemptions mentioned in paragraph 1 of this article, or articles the import or export of which is prohibited by the law or controlled by the quarantine regulations of the receiving State. Such inspection shall be conducted only in the presence of the diplomatic agent or of his authorized representative.

Article 37

1. The members of the family of a diplomatic agent forming part of his household shall, if they are not nationals of the receiving State, enjoy the privileges and immunities specified in articles 29 to 36.

2. Members of the administrative and technical staff of the mission, together with members of their families forming part of their respective households, shall, if they are not nationals of or permanently resident in the receiving State, enjoy the privileges and immunities specified in articles 29 to 35, except that the immunity from civil and administrative jurisdiction of the receiving State specified in paragraph 1 of article 31 shall not extend to acts performed outside the course of their duties. They shall also enjoy the privileges specified in article 36, paragraph 1, in respect of articles imported at the time of first installation.

3. Members of the service staff of the mission who are not nationals of or permanently resident in the receiving State shall enjoy immunity in respect of acts performed in the course of their duties, exemption from dues and taxes on the emoluments they receive by reason of their employment and the exemption contained in article 33.

4. Private servants of members of the mission shall, if they are not nationals of or permanently resident in the receiving State, be exempt from dues and taxes on the emoluments they receive by reason of their employment. In other respects, they may enjoy privileges and immunities only to the extent admitted by the receiving State. However, the receiving State must exercise its jurisdiction over those persons in such a manner as not to interfere unduly with the performance of the functions of the mission.

Article 38

1. Except insofar as additional privileges and immunities may be granted by the receiving State, a diplomatic agent who is a national of or permanently resident in that State shall enjoy only immunity from jurisdiction, and inviolability, in respect of official acts performed in the exercise of his functions.

2. Other members of the staff of the mission and private servants who are nationals of or permanently resident in the receiving State shall enjoy privileges and immunities only to the extent admitted by the receiving State. However, the receiving State must exercise its jurisdiction over those persons in such a manner as not to interfere unduly with the performance of the functions of the mission.

Article 39

1. Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be agreed.

2. When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed

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conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist.

3. In case of the death of a member of the mission, the members of his family shall continue to enjoy the privileges and immunities to which they are entitled until the expiry of a reasonable period in which to leave the country.

4. In the event of the death of a member of the mission not a national of or permanently resident in the receiving State or a member of his family forming part of his household, the receiving State shall permit the withdrawal of the movable property of the deceased, with the exception of any property acquired in the country the export of which was prohibited at the time of his death. Estate, succession and inheritance duties shall not be levied on movable property the presence of which in the receiving State was due solely to the presence there of the deceased as a member of the mission or as a member of the family of a member of the mission.

Article 40

1. If a diplomatic agent passes through or is in the territory of a third State, which has granted him a passport visa if such visa was necessary, while proceeding to take up or to return to his post, or when returning to his own country, the third State shall accord him inviolability and such other immunities as may be required to ensure his transit or return. The same shall apply in the case of any members of his family enjoying privileges or immunities who are accompanying the diplomatic agent, or travelling separately to join him or to return to their country.

2. In circumstances similar to those specified in paragraph 1 of this article, third States shall not hinder the passage of members of the administrative and technical or service staff of a mission, and of members of their families, through their territories

3. Third States shall accord to official correspondence and other official communications in transit, including messages in code or cipher, the same freedom and protection as is accorded by the receiving State. They shall accord to diplomatic couriers, who have been granted a passport visa if such visa was necessary, and diplomatic bags in transit, the same inviolability and protection as the receiving State is bound to accord.

4. The obligations of third States under paragraphs 1, 2 and 3 of this article shall also apply to the persons mentioned respectively in those paragraphs, and to official communications and diplomatic bags, whose presence in the territory of the third State is due to force majeure.

Article 41

1. Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of that State.

2. All official business with the receiving State entrusted to the mission by the sending State shall be conducted with or through the Ministry for Foreign Affairs of the receiving State or such other ministry as may be agreed.

3. The premises of the mission must not be used in any manner incompatible with the functions of the mission as laid down in the present Convention or by other rules of general international law or by any special agreements in force between the sending and the receiving State.

Article 42

A diplomatic agent shall not in the receiving State practise for personal profit any professional or commercial activity.

Article 43

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The function of a diplomatic agent comes to an end, inter alia:

(a) On notification by the sending State to the receiving State that the function of the diplomatic agent has come to an end;

(b) On notification by the receiving State to the sending State that, in accordance with paragraph 2 of article 9, it refuses to recognize the diplomatic agent as a member of the mission.

Article 44

The receiving State must, even in case of armed conflict, grant facilities in order to enable persons enjoying privileges and immunities, other than nationals of the receiving State, and members of the families of such persons irrespective of their nationality, to leave at the earliest possible moment. It must, in particular, in case of need, place at their disposal the necessary means of transport for themselves and their property.

Article 45

If diplomatic relations are broken off between two States, or if a mission is permanently or temporarily recalled:

(a) The receiving State must, even in case of armed conflict, respect and protect the premises of the mission, together with its property and archives;

(b) The sending State may entrust the custody of the premises of the mission, together with its property and archives, to a third State acceptable to the receiving State;

(c) The sending State may entrust the protection of its interests and those of its nationals to a third

State acceptable to the receiving State.

Article 46

A sending State may with the prior consent of a receiving State, and at the request of a third State not represented in the receiving State, undertake the temporary protection of the interests of the third

State and of its nationals.

Article 47

1. In the application of the provisions of the present Convention, the receiving State shall not discriminate as between States.

2. However, discrimination shall not be regarded as taking place:

(a) Where the receiving State applies any of the provisions of the present Convention restrictively because of a restrictive application of that provision to its mission in the sending State;

(b) Where by custom or agreement States extend to each other more favourable treatment than is required by the provisions of the present Convention.

Article 48

The present Convention shall be open for signature by all States Members of the United Nations or of any of the specialized agencies Parties to the Statute of the International Court of Justice, and by any other State invited by the General Assembly of the United Nations to become a Party to the

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Convention, as follows: until 31 October 1961 at the Federal Ministry for Foreign Affairs of Austria and subsequently, until 31 March 1962, at the United Nations Headquarters in New York.

Article 49

The present Convention is subject to ratification. The instruments of ratification shall be deposited with the Secretary-General of the United Nations.

Article 50

The present Convention shall remain open for accession by any State belonging to any of the four categories mentioned in article 48. The instruments of accession shall be deposited with the Secretary- General of the United Nations.

Article 51

1. The present Convention shall enter into force on the thirtieth day following the date of deposit of the twenty-second instrument of ratification or accession with the Secretary-General of the United Nations.

2. For each State ratifying or acceding to the Convention after the deposit of the twenty-second instrument of ratification or accession, the Convention shall enter into force on the thirtieth day after deposit by such State of its instrument of ratification or accession.

Article 52

The Secretary-General of the United Nations shall inform all States belonging to any of the four categories mentioned in article 48:

(a) Of signatures to the present Convention and of the deposit of instruments of ratification or accession, in accordance with articles 48, 49 and 50;

(b) Of the date on which the present Convention will enter into force, in accordance with article 51.

Article 53

The original of the present Convention, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations, who shall send certified copies thereof to all States belonging to any of the four categories mentioned in article 48.

Vienna Convention on Consular Relations (April 24, 1963)

Article 1

Definitions

1 .For the purposes of the present Convention, the follow in g expressions shall have the meanings Here under assigned to them:

(a ) “consular post” means any consulate-general, consulate, vice-consulate or consular agency;

(b ) “consular district” means the area assigned to a consular post for the exercise of consular functions;

(c) “head of consular post” means the person charged with the duty of acting in that capacity;

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(d ) “consular officer” means any person, including the head of a consular post, entrusted in that capacity with the exercise of consular functions;

(e) “consular employee” means any person employed in the administrative or technical service of a consular post;

(f) “member of the service staff” means any person employed in the domestic service of a consular post;

(g ) “members of the consular post” means consular officers, consular employees and members of the service staff;

(h ) “members of the consular staff” means consular officers, other than the head of a consular post, consular employees and members of the service staff;

(i) “member of the private staff” means a person who is employed exclusively in the private service of a member of the consular post;

(j) “consular premises” means the buildings or parts of buildings and the land ancillary thereto, irrespective of ownership, used exclusively for the purposes of the consular post;

(k) “consular archives” includes all the papers, documents, correspondence, books, films, tapes and registers of the consular post, together with the ciphers and codes, the card-indexes and any article of furniture intended for their protection or safe keeping.

2 .Consular officers are of two categories, namely career consular officers and honorary consular officers. The provisions of Chapter II of the present Convention apply to consular posts headed by career consular officers, the provisions of Chapter III govern consular posts headed by honorary consular officers.

3 .The particular status of members of the consular posts who are nationals or permanent residents of the receiving State is governed by article 71 of the present Convention.

Article 2

1 .The establishment of consular relations between States takes place by mutual consent.

2. The consent given to the establishment of diplomatic relations between two States implies, unless otherwise stated, consent to the establishment of consular relations.

3 .The severance of diplomatic relations shall not ipso facto involve the s severance of consular relations.

Article 3

Consular functions are exercised by consular posts. They are also exercised by diplomatic missions in accordance with the provisions of the present Convention.

Article 4

1 .A consular post may be established in the territory of the receiving State only with that State’s consent.

2 .The seat of the consular post, its classification and the consular district shall be established by the sending State and shall be subject to the approval of the receiving State.

3 .Subsequent changes in the seat of the consular post, its classification or the consular district may be made by the sending State only with the consent of the receiving State.

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4 .The consent of the receiving State shall also be required if a consulate-general or a consulate

desires to open a vice-consulate or a consular agency in a locality o other than that in which it is itself established.

5 .The prior express consent of the receiving State shall also be required for the opening of an office forming part of an existing consular post elsewhere ere than at the seat thereof.

Article 5

Consular functions consist in:

(a ) protecting in the receiving State the interests of the sending State and of its nationals, both individuals and bodies corporate, within the limits permitted by international law;

(b ) furthering the development of commercial, economic, cultural and scientific relations between the sending g State and the receiving State and otherwise promoting friendly relations between them in accordance with the provisions of the present Convention;

(c) ascertaining by all lawful means conditions and developments in the commercial, economic, cultural and scientific life of the receiving State, reporting thereon to the Government of the sending State and giving information to persons interested;

(d ) issuing passports and travel documents to nationals of the sending State, and visas or appropriate documents to persons wishing to travel to the sending State;

(e) helping and assisting nationals, both individuals and bodies corporate, of the sending State;

(f) acting as notary and civil registrar and in capacities of a similar kind, and performing certain functions of an administrative nature, provided that there is nothing contrary thereto in the laws and regulations of the receiving State;

(g ) safeguarding the interests of nationals, both individuals and bodies corporate, of the sending States in cases of succession mortis causa in the territory of the receiving State, in accordance with the laws and regulations of the receiving State;

(h ) safeguarding, within the limits imposed by the laws and regulations of the receiving State, the interests of minors and other persons lacking full capacity who are nationals of the sending State, particularly where any guardianship or trusteeship is required with respect to such persons;

(i) subject to the practices and procedures obtaining in the receiving State, representing or arranging appropriate representation for nationals of the sending State before the tribunals and other authorities of the receiving State, for the purpose of obtaining, in accordance with the laws and regulations of the receiving State, provisional measures for the preservation of the rights and interests of these nationals, where, because of absence or any other reason, such nationals are unable at the proper time to assume the defence of their rights and interests;

(j) transmitting judicial and extrajudicial documents or executing letters rogatory or commissions to take evidence for the courts of the sending State in accordance with in international agreements in force or, in the absence of such international agreements, in any other manner compatible with the laws and regulations of the receiving State;

(k) exercising rights of supervision and inspection provided for in the laws and regulations of the sending State in respect of vessels having the nationality of the sending State, and of aircraft registered in that State, and in respect of their crews ;

(l) extending assistance to vessels and aircraft mentioned in subparagraph (k) of this article, and to their crews, taking statements regarding the voyage of a vessel, examining and stamping the ship’s

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papers , and, without prejudice to the powers of the authorities of the receiving State, conducting investigations into any incidents which occurred during the voyage, and settling disputes of any kind between the master, the officers and the seamen insofar as this may be authorized by the laws and regulations of the sending State;

(m ) performing any other functions entrusted to a consular post by the sending State which are not prohibited by the laws and regulations of the receiving State or to which no o objection is taken by the receiving State or which are referred to in the international agreements in force between the sending State and the receiving State.

Article 6

A consular officer may, in special circumstances, with the consent of the receiving State, exercise his functions outside his consular district.

Article 7

The sending State may, after notifying the States concerned, entrust a consular post established in a particular State with the exercise of consular functions in another State, unless there is express objection by one of the States concerned.

Article 8

Upon appropriate notification to the receiving State, a consular post of the sending State may, unless the receiving State objects, exercise consular functions in the receiving State on behalf of a third State.

Article 9

1 .Heads of consular posts are divided into four classes, namely

(a ) consuls-general; (b ) consuls; (c) vice-consuls; (d ) consular agents. 2 .Paragraph 1 of this article in no way restricts the right of any of the Contracting Parties to fix the designation of consular officers other than the heads of consular posts.

Article 10

1 .Heads of consular posts are appointed by the sending State and are admitted to the exercise of their functions by the receiving State.

2 .Subject to the provisions of the present Convention , the formalities for the appointment and for the admission of the head o f a consular post are determined by the laws, regulations an d usages of the sending State and of the receiving State respectively.

Article 11

1 .The head of a consular post shall be provided by the sending State with a document, in the form of a commission or similar instrument, made out for each appointment, certifying his capacity and

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showing, as a general rule, his full name, his category and class, the consular district and the seat of the consular post.

2 .The sending State shall transmit the commission or similar instrument through the diplomatic or other appropriate channel to the Government of the State in whose territory the head of a consular post is to exercise his functions.

3 .If the receiving State agrees, the sending State may, instead of a commission or similar instrument, send to the receiving State a notification containing the particulars required by paragraph 1 of this article.

Article 12

1 .The head of a consular post is admitted to the exercise of his functions by an authorization from the receiving State termed an exequatur, whatever the form of this authorization.

2 .A State which refused to grant an exequatur is not obliged to give to the sending State reasons for such refusal.

3 .Subject to the provisions of articles 13 and 15, the head of a consular post shall not enter upon his duties until he has received an exequatur.

Article 13

Pending delivery of the exequatur, the head of a consular post may be admitted on a provisional basis to the exercise of his functions. In that case, the provisions o f the present Convention shall apply.

Article 14

As soon as the head of a consular post is admitted even provisionally to the exercise of his functions, the receiving State shall immediately notify the competent authorities of the consular district.

It shall also ensure that the necessary measures are taken to enable the head of a consular post to carry out the duties of his office and to have the benefit of the provisions of the present Convention.

Article 15

1 .If the head of a consular post is unable to carry out his functions or the position of head of consular post is vacant, an acting head of post may act provisionally as head of the consular post.

2 .The full name of the acting head of post shall be notified either by the diplomatic mission of the sending State or, if that State has no such mission in the receiving State, by the head of the consular post, or, if he is unable to do so, by any competent authority of the s ending State, to the Ministry for Foreign Affairs of the receiving State or to the authority designated by that Ministry. As a general rule, this notification shall be given in advance. The receiving State may make the admission as actin g head of post of a person who is neither a diplomatic agent nor a consular officer of the sending State in the receiving State conditional on its consent.

3 .The competent authorities of the receiving State shall afford assistance and protection to the acting head of post. While he is in charge of the post, the provisions of the present Convention shall apply to him on the same basis as to the head of the consular post concerned. The receiving State shall not, however, be obliged to grant to an acting head of post any facility, privilege or immunity which the head of the consular post enjoys only subject to conditions not fulfilled by the acting head of post.

4 .When, in the circumstances referred to in paragraph 1 of this article, a member of the diplomatic staff of the diplomatic mission of the sending State in the receiving State is designated by the

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sending State as an acting head of post, he shall, if the receiving State does not object thereto, continue to enjoy diplomatic privileges and immunities.

Article 16

1 .Heads of consular posts shall rank in each class according to the date of the gran t of the exequatur.

2 .If, however, the head of a consular post before obtaining the exequatur is admitted to the exercise of his functions provisionally, h is precedence shall be determined according to the date of the provisional admission; this precedence shall be maintained after the granting of the exequatur.

3 .The order of precedence as between two or more head s of consular posts who obtained the exequatur or provisional admission on the same date shall be determined according to the dates on which their commissions or similar instruments or the notifications referred to in paragraph 3 of article 11 were presented to the receiving State.

4 .Acting heads of posts shall rank after all heads of consular posts and, as between themselves, they shall rank according to the dates on which they assumed their functions as acting heads of posts as indicated in the notifications given under paragraph 2 of article 15 .

5 .Honorary consular officers who are heads of consular posts shall rank in each class after career heads of consular posts, in the order and according to the rules laid down in the foregoing paragraphs .

6 .Heads of consular posts s hall have precedence over consular officers not having that status.

Article 17

1 .In a State where the sending State has no diplomatic mission and is not represented by a diplomatic mission of a third State, a consular officer may, with the consent of the receiving State, and without affecting his consular status, be authorized to perform diplomatic acts. The performance of such acts by a consular officer shall not confer upon him any right to claim diplomatic privileges and immunities.

2 .A consular officer may, after notification addressed to the receiving State, act as representative of the sending State to any intergovernmental organization. When so acting, he shall be entitled to enjoy any privileges and immunities accorded to such a representative by customary international law or by international agreements; however, in respect of the performance by him of any consular function, he shall not be entitled to any greater immunity from jurisdiction than that to which a consular officer is entitled under the present Convention.

Article 18

Two or more States may, with the consent of the receiving State, appoint the same person as a consular officer in that State.

Article 19

1 .Subject to the provisions of articles 20, 22 and 23, the sending State may freely appoint the members of the consular staff.

2 .The full name, category an d class of all consular officers, other than the head of a consular post, shall be notified by the sending State to the receiving State in sufficient time for the receiving State, if it so wishes, to exercise its rights under paragraph 3 of article 23.

3 .The sending State may, if required by its laws and regulations, request the receiving State to grant an exequatur to a consular officer other than the head of a consular post.

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4 .The receiving State may, if required by its laws and regulations, g rant an exequatur to a consular officer other than the head of a consular post.

Article 20

In the absence of an express agreement as to the size of the consular staff, the receiving State may require that the size of the staff be kept within limits considered by it to be reasonable and normal, having regard to circumstances and conditions in the consular district and to the needs of the particular consular post.

Article 21

The order of precedence as between the consular officers of a consular post an d any change thereof shall be notified by the diplomatic mission of the sending State or, if that State has no such mission n in the receiving State, by the head of the consular post, to the Ministry for Foreign n Affairs of the receiving State or to the authority designated by that Ministry.

Article 22

1 .Consular officers should, in principle, have the nationality of the sending State.

2 .Consular officers may not be appointed from among persons having the n nationality of the receiving State except with the express consent of that State which may be withdrawn at any time.

3 .The receiving State may reserve the same right with regard to nationals of a third State who are not also nationals of the sending State.

Article 23

1 .The receiving State may at any time notify the sending State that a consular officer is persona non grata or that any other member of the e consular staff is not acceptable. In that event, the sending State shall, as the case may be, either recall the person concerned or terminate his functions with the consular post.

2 .If the sending State refuses or fails within a reasonable time to carry out its obligations under paragraph 1 of this article, the receiving State may, as the case may be, either withdraw the exequatur from the person concerned or cease to consider him as a member of the consular staff.

3 .A person appointed as a member of a consular post may be declared unacceptable before arriving in the territory of the receiving State or, if already in the receiving State, before entering on his duties with the consular post. In any such case, the sending State shall withdraw his appointment.

4 .In the cases mentioned in paragraphs 1 and 3 of this article, the receiving State is not obliged to give to the sending State reasons for its decision.

Article 24

1 .The Ministry for Foreign Affairs of the receiving State or the authority designated by that Ministry shall be notified of:

(a ) the appointment of members of a consular post, their arrival after appointment to the consular post, their final departure or the termination of their functions and any other changes affecting their status that may occur in the course of their service with the consular post;

(b ) the arrival and final departure of a person belonging to the family of a member of a consular post forming part of his household and, where appropriate, the fact that a person becomes or ceases to be such a member of the family;

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(c) the arrival and final departure of members of the private staff and, where appropriate, the termination of their service as such;

(d ) the engagement and discharge of persons resident in the receiving State as members of a consular post or as members of the private staff entitled to privileges and immunities.

2 .When possible, prior notification of arrival and final departure shall also be given.

Article 25

The functions of a member of a consular post shall come to an end, inter alia:

(a ) on notification by the sending State to the receiving State that his functions have come to an end;

(b ) on withdrawal of the exequatur;

(c) on notification by the receiving State to the sending State that the receiving State has ceased to consider him as a member of the consular staff.

Article 26

The receiving State shall, even in case of armed conflict, grant to members of the consular post and members of the private staff, other than nationals of the receiving State, and to members of their families forming part of their households irrespective of nationality, the necessary time and facilities to enable them to prepare their departure and to leave at the earliest possible moment after the termination of the functions of the members concerned. In particular, it shall, in case of need, place at their disposal the necessary means of transport for themselves and their property other than property acquired in the receiving State the export of which is prohibited at the time of departure.

Article 27

1 .In the event of the severance of consular relations between two States:

(a ) the receiving State shall, even in case of armed conflict, respect and protect the consular premises, together with the property of the consular post and the consular archives;

(b ) the sending State may entrust the custody of the consular premises, together with the property contained therein and the consular archives, to a third State acceptable to the receiving State;

(c) the sending State may entrust the protection of its interests and those of its nationals to a third

2 .In the event of the temporary or permanent closure of a consular post, the provisions of subparagraph (a) of paragraph 1 of this article shall apply. In addition,

(a ) if the s ending State, although not represented in the receiving State by a diplomatic mission, has another consular post in the territory of that State, that consular post may be entrusted with the custody of the premises of the consular post which has been closed, together with the property contained therein and the consular archives, and, with the consent of the receiving State, with the exercise of consular functions in the district of that consular post; or

(b ) if the sending State has no diplomatic mission and no other consular post in the receiving State, the provisions of subparagraphs (b) and (c) of paragraph 1 of this article sh all apply.

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Article 28

The receiving State shall accord full facilities for the performance of the functions of the consular post.

Article 29

1 .The sending State shall have the right to the u se of its national flag and coat-of-arms in the receiving State in accordance with the provisions of this article.

2 .The national flag of the sending State may be flow n and its coat-of-arms displayed on the building occupied by the consular post and at the entrance door thereof, on the residence of the head of the consular post and on his means of trans port when used on official business.

3 .In the exercise of the right accorded by this article regard shall be had to the laws, regulations and usages of the receiving State.

Article 30

1 .The receiving State shall either facilitate the acquisition on its territory, in accordance with its laws and regulations, by the sending State of premises necessary for its consular post or assist the latter in obtaining accommodation in some other way.

2 .It shall also, where necessary, assist the consular post in obtaining suitable accommodation for its members.

Article 31

1 .Consular premises shall be inviolable to the extent provided in this article.

2 .The authorities of the receiving State shall not enter that part of the consular premises which is used exclusively for the purpose of the work of the consular post except with the consent of the head of the consular post or of his designee or of the head of the diplomatic mission of the sending State. The consent of the head of the consular post may, however, be assumed in case of fire or other disaster requiring prompt protective action.

3 .Subject to the provisions of paragraph 2 of this article, the receiving State is under a special duty to take all appropriate steps to protect the consular premises against any intrusion or damage and to prevent any disturbance of the peace of the consular post or impairment of its dignity.

4 .The consular premises, their furnishings, the property of the consular post and its means of transport shall be immune from any form of requisition for purposes of national defence or public utility.

If expropriation is necessary for such purposes, all possible steps shall be taken to avoid impeding the performance of consular functions, and prompt, adequate and effective compensation shall be paid to the sending State.

Article 32

1 .Consular premises and the residence of the career head of consular post of which the sending State or any person acting on its behalf is the owner or lessee shall be exempt from all national, regional or municipal dues and taxes whatsoever, other than such as represent payment for specific services rendered.

2 .The exemption from taxation referred to paragraph 1 of this article shall not apply to such dues and taxes if, under the law of the receiving State, they are payable by the person who contracted with the sending State or with the person acting on its behalf.

Article 33

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The consular archives and documents shall be inviolable at all times and wherever they may be.

Article 34

Subject to its laws and regulations concerning zones entry into which is prohibited or regulated for reasons of nation al security, the receiving State shall ensure freedom of movement and travel in its territory to all members of the consular post.

Article 35

1 .The receiving State shall permit and protect freedom of communication on the part of the consular post for all official purposes. In communicating with the Government, the diplomatic missions and other consular posts , wherever situated, of the sending State, the consular post may employ all appropriate means, including diplomatic or consular couriers, diplomatic or consular bags and messages in code or cipher. However, the consular post may install and use a wireless transmitter only with the consent of the receiving State.

2 .The official correspondence of the consular post shall be inviolable. Official correspondence means all correspondence relating to the consular post and its functions.

3 .The consular bag shall be neither opened nor detained. Nevertheless, if the competent authorities of the receiving State have serious reason to believe that the bag contains something other than the correspondence, documents or articles referred to in paragraph 4 of this article, they may request that the bag be opened in their presence by an authorized representative of the sending State. If this request is refused by the authorities of the sending State, the bag shall be returned to its place of origin.

4 .The packages constituting the consular bag shall bear visible external marks of their character and may contain only official correspondence and documents or articles intended exclusively for official use.

5 .The consular courier shall be provided with an official document indicating his status and the number of packages constituting the consular bag. Except with the consent of the receiving State he shall be neither a national of the receiving State, nor, unless he is a national of the s ending State, a permanent resident of the receiving State. In the performance of his functions he shall be protected by the receiving State. He shall enjoy personal inviolability and shall not be liable to any form of arrest or detention.

6 .The sending State, its diplomatic miss ion s and its consular posts may designate consular couriers ad hoc. In such cases the provisions of paragraph 5 of this article shall also apply except that the immunities therein mentioned shall cease to apply when such a courier has delivered to the consignee the consular bag in his charge.

7 .A consular bag may be entrusted to the captain of a ship or of a commercial aircraft scheduled to land at an authorized port of entry. He shall be provided with an official document indicating the number of packages constituting the bag, but he shall not be considered to be a consular courier. By arrangement with the appropriate local authorities, the consular post may send one of its members to take possession of the bag directly and freely from the captain of the ship or of the aircraft.

Article 36

1 .With a view to facilitating the exercise of consular functions relating to nationals of the sending State:

(a ) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;

(b ) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested

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or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph;

(c) consular officers shall have the right to visit a national of the s ending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation.

They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.

2 .The rights referred to in paragraph 1 of this article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this article are intended.

Article 37

If the relevant information is available to the competent authorities of the receiving State, such authorities shall have the duty:

(a ) in the case of the death of a national of the sending State, to inform without delay the consular post in whose district the death occurred;

(b ) to inform the competent consular post without delay of any case where the appointment of a guardian or trustee appears to be in the interests of a minor or other person lacking full capacity who is a national of the s ending State. The giving of this information shall, however, be without prejudice to the operation of the laws and regulations of the receiving State concerning such appointments;

(c) if a vessel, having the nationality of the sending State, is wrecked or runs aground in the territorial sea or internal waters of the receiving State, or if an aircraft registered in the sending State suffers an accident on the territory of the receiving State, to inform without delay the consular post nearest to the scene of the occurrence.

Article 38

In the exercise of their functions, consular officers may address

(a ) the competent local authorities of their consular district;

(b ) the competent central authorities of the receiving State if and to the extent that this is allowed by the law s, regulations and usages of the receiving State or by the relevant international agreements.

Article 39

1 .The consular post may levy in the territory of the receiving State the fees and charges provided by the laws and regulations of the s ending State for consular acts.

2 .The sums collected in the form of the fees and charges referred to in paragraph 1 of this article, and the receipts for such fees and charges, shall be exempt from all dues and taxes in the receiving State.

Article 40

The receiving State shall treat consular officers with du e respect and shall take all appropriate steps to prevent any attack on their person, freedom or dignity.

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Article 41

1 .Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority.

2 .Except in the case specified in paragraph 1 of this article, consular officers shall not be committed to prison or be liable to any other form of restriction on their personal freedom save in execution of a judicial decision of final effect.

3 .If criminal proceedings are instituted against a consular officer, he must appear before the competent authorities. Nevertheless, the proceedings shall be conducted with the respect due to him by reason of his official position and, except in the case specified in paragraph 1 of this article, in a manner which will hamper the exercise of consular functions as little as possible. When, in the circumstances mentioned in paragraph 1 of this article, it has become necessary to detain a consular officer, the proceedings against him shall be instituted with the minimum of delay.

Article 42

In the event of the arrest or detention, pending trial, of a member of the consular staff, or of criminal proceedings being instituted against him, the receiving State shall promptly notify the head of the consular post. Should the latter be himself the object of any such measure, the receiving State shall notify the sending State through the diplomatic channel.

Article 43

1 .Consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions.

2.The provisions of paragraph 1 of this article shall not, however, apply in respect of a civil action either

(a ) arising out of a contract concluded by a consular officer or a consular employee in which he did not contract expressly or impliedly as an agent of the sending State; or

(b ) by a third party for damage arising from an accident in the receiving State caused by a vehicle, vessel or aircraft.

Article 44

1 .Members of a consular post may be called upon to attend as witnesses in the course of judicial or administrative proceedings . A consular employee or a member of the service staff shall not, except in the cases mentioned in paragraph 3 of this article, decline to give evidence. If a consular officer should decline to do so, no coercive measure or penalty may be applied to him.

2 .The authority requiring the evidence of a consular officer shall avoid interference with the performance of his functions. It may, when possible, take such evidence at his residence or at the consular post or accept a statement from him in writing.

3 .Members of a consular post are under no obligation to give evidence concerning matters connected with the exercise of their functions or to produce official correspondence and documents relating thereto. They are also entitled to decline to give evidence as expert witnesses with regard to the law of the sending State.

Article 45

1 .The sending State may waive, with regard to a member of the consular post, any of the privileges and immunities provided for in articles 41, 43 and 44.

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2 .The waiver shall in all cases be express, except as provided in paragraph 3 of this article, and shall be communicated to the receiving State in writing.

3 .The initiation of proceedings by a consular officer or a consular employee in a matter where he might enjoy immunity from jurisdiction under article 43 shall preclude him from invoking immunity from jurisdiction in respect of any counterclaim directly connected with the principal claim.

4 .The waiver of immunity from jurisdiction for the purposes of civil or administrative proceedings shall not be deemed to imply the waiver of immunity from the measures of execution resulting from the judicial decision; in respect of such measures, a separate waiver shall be necessary.

Article 46

1 .Consular officers and consular employees an d members of their families forming part of their households shall be exempt from all obligations under the laws and regulations of the receiving State in regard to the registration of aliens and residence permits.

2 .The provisions of paragraph 1 of this article shall not, however, apply to any consular employee who is not a permanent employee of the sending State or who carries on any private gainful occupation in the receiving State or to any member of the family of any such employee.

Article 47

1 .Members of the consular post shall, with respect to services rendered for the sending State, be exempt from any obligations in regard to work permits imposed by the laws and regulations of the receiving State concerning the employment of foreign labour.

2 .Members of the private staff of consular officers and of consular employees shall, if they do not carry on any other gainful occupation in the receiving State, be exempt from the obligation s referred to in paragraph 1 of this article.

Article 48

1 .Subject to the provisions of paragraph 3 of this article, members of the consular post with respect to services rendered by them for the sending State, and members of their families forming part of their households, shall be exempt from social security provisions which may be in force in the receiving State.

2 .The exemption provided for in paragraph 1 of this article shall apply also to members of the private staff who are in the sole employ of members of the consular post, on condition:

(a ) that they are not nationals of or permanently resident in the receiving State; and

(b ) that they are covered by the social security provisions which are in force in the sending State or a third State.

3 .Members of the consular post who employ persons to whom the exemption provided for in paragraph 2 of this article does not apply shall observe the obligations which the social security provisions of the receiving State impose upon employers.

4 .The exemption provided for in paragraphs 1 an d 2 of this article shall not preclude voluntary participation in the social security system of the receiving State, provided that such participation is permitted by that State.

Article 49

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1 .Consular officers and consular employees an d members of their families forming part of their households shall be exempt from all dues and taxes, personal or real, national, regional or municipal, except:

(a ) indirect taxes of a kind which are normally incorporated in the price of goods or services;

(b ) dues or taxes on private immovable property situated in the territory of the receiving State, subject to the provisions of article 32;

(c) estate, succession or inheritance duties, and duties on transfers, levied by the receiving State, subject to the provisions of paragraph (b) of article 51;

(d ) dues and taxes on private income, including capital gain s, having its source in the receiving State and capital taxes relating to investments made in commercial or financial undertakings in the receiving State;

(e) charges levied for specific services rendered;

(f) registration, court or record fees, mortgage dues and stamp duties, subject to the provisions of article 32 .

2 .Members of the service staff shall be exempt from dues and taxes on the wages which they receive for their services.

3 .Members of the consular post who employ persons whose wages or s alaries are not exempt from income tax in the receiving State shall observe the obligations which the laws and regulations of that State impose upon employers concerning the levying of income tax.

Article 50

1 .The receiving State shall, in accordance with such laws and regulations as it may adopt, permit entry of and grant exemption from all customs duties, taxes, and related charges other than charges for storage, cartage and similar services, on:

(a ) articles for the official use of the consular post;

(b ) articles for the personal use of a consular officer or members of his family forming part of his household, including articles intended for his establishment. The articles intended for consumption shall not exceed the quantities necessary for direct utilization by the persons concerned.

2 .Consular employees shall enjoy the privileges and exemptions specified in paragraph 1 of this article in respect of articles imported at the time of first installation.

3 .Personal baggage accompanying consular officers and members of their families forming part of their households shall be exempt from inspection. It may be inspected only if there is serious reason to believe that it contains articles other than those referred to in subparagraph (b) of paragraph 1 of this article, or articles the import or export of which is prohibited by the laws and regulations of the receiving State or which are subject to its quarantine laws and regulations. Such inspection shall be carried out in the presence of the consular officer or member of his family concerned.

Article 51

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In the event of the death of a member of the consular post or of a member of his family forming part of his household, the receiving State:

(a ) shall permit the export of the movable property of the deceased, with the exception of any such property acquired in the receiving State the export of which was prohibited at the time of his death;

(b ) shall not levy national, region al or municipal estate, succession or inheritance duties, and duties on transfers, on movable property the presence of which in the receiving State was due solely to the presence in that State of the deceased as a member of the consular post or as a member of the family of a member of the consular post.

Article 52

The receiving State shall exempt members of the consular post and members of their families forming part of their households from all personal services, from all public service of any kind whatsoever, and from military obligations such as those connected with requisitioning, military contributions and billeting.

Article 53

1 .Every member of the consular post shall enjoy the privileges and immunities provided in the present Convention from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when he enters on his duties with the consular post.

2 .Members of the family of a member of the consular post forming part of his household and

members of his private staff shall receive the privileges and immunities provided in the present Convention from the date from which he enjoys privileges and immunities in accordance with paragraph 1 of this article or from the date of their entry into the territory of the receiving State or from the date of their becoming a member of such family or private staff, whichever is the latest.

3 .When the functions of a member of the consular post have come to an end, his privileges and immunities and those of a member of his family forming part of his household or a member of his private staff shall normally cease at the moment t when the person concerned leaves the receiving State or on the expiry of a reasonable period in which to do so, whichever is the s sooner, but shall subsist until that time, even in case of armed conflict. In the case of the persons referred to in paragraph 2 of this article, their privileges and immunities shall come to an end when they cease to belong to the household or to be in the service of a member of the consular post provided, however, that if such persons intend leaving the receiving State within a reasonable period thereafter, their privileges and immunities shall subsist until the time of their departure.

4 .However, with respect to acts performed by a consular officer or a consular employee in the exercise of his functions, immunity from jurisdiction shall continue to subsist without limitation of time.

5 .In the event of the death of a member of the consular post, the members of his family forming part of his household shall continue to enjoy the privileges and immunities accorded to them until they leave the receiving State or until the e expiry o f a reasonable p period enabling them to do so, whichever is the sooner.

Article 54

1 .If a consular officer passes through or is in the territory of a third State, which has granted him a visa if a visa was necessary, w while proceeding to take up or return to his post or when returning to the sending g State, the third State shall accord to him all immunities provided for by the other articles of the present t Convention as may be required to ensure his transit or return. The same shall apply in the case of any member of his family forming part of his household enjoying such p privileges and

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immunities who are accompanying the consular officer or travelling separately to join him or to return to the sending State.

2 .In circumstances similar to those specified in paragraph 1 of this article, third States shall not hinder the transit through their territory of other members of the consular post or of members of their families forming part of their households.

3 .Third States shall accord to o official correspondence and to other official communications in transit, including messages in code or cipher, the same freedom and protection as the receiving g State is bound to accord under the present Convention. They shall accord to consular couriers who have been granted a visa, if a visa was necessary, and to consular bags in transit, the same inviolability and protection as the receiving State is bound to accord under the present Convention.

4 .The obligations of third States under paragraphs 1, 2 and 3 of this article shall also apply to the persons mentioned respectively in those paragraphs, and to official communication s and to consular bags, whose presence in the territory of the third State is due to force majeure.

Article 55

1 .Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of the State.

2 .The consular premises shall not be used in any manner incompatible with the exercise of consular functions.

3 .The provisions of paragraph 2 of this article shall not exclude the possibility of offices of other institutions or agencies being installed in part of the building in which the consular premises are situated, provided that the p remises assigned to them are separate from those used by the consular post.

In that event, the said offices s hall not, for the purposes of the present Convention, be considered to form part of the consular premises.

Article 56

Members of the consular post shall comply with an y requirements imposed by the laws and regulations of the receiving State, in respect of insurance against third party risks arising from the use of any vehicle, vessel or aircraft.

Article 57

1 .Career consular officers shall not carry on for personal profit any professional or commercial activity in the receiving State.

2 .Privileges and immunities provided in this chapter shall not be accorded :

(a ) to consular employees or to members of the service staff who carry on any private gainful occupation in the receiving State;

(b ) to members of the family of a person referred to in subparagraph (a) of this paragraph or to members of his private staff;

(c) to members of the family of a member of a consular post who themselves carry on any private gainful occupation in the receiving State.

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Article 58

1 .Articles 28, 29, 30, 34, 35, 36, 37, 38 and 39, paragraph 3 of article 54 and paragraphs 2 and 3 of article 55 s hall apply to consular posts headed by an honorary consular officer. In addition, the facilities, privileges and immunities of such consular posts shall be governed by articles 59, 60, 61 and 62.

2 .Articles 42 and 43, paragraph 3 of article 44 , articles 45 and 53 and paragraph 1 of article 55 shall apply to honorary consular officers. In addition, the facilities, privileges and immunities of such consular officers shall be governed by articles 63, 64, 65, 66 an d 67.

3 .Privileges and immunities provided in the present Convention shall not be accorded to members of the family of an honorary consular officer or of a consular employee employed at a consular post headed by an honorary consular officer.

4 .The exchange of consular bags between two consular posts headed by honorary consular officers in different States shall not be allowed without the consent of the two receiving States concerned.

Article 59

T he receiving State shall take such steps as may be necessary to protect the consular premises of a consular post headed by an honorary consular officer against any intrusion or damage and to prevent any disturbance of the peace of the consular post or impairment of its dignity.

Article 60

1 .Consular premises of a consular post headed by an honorary consular officer of which the sending State is the owner or lessee shall be exempt from all national, regional or municipal dues and taxes whatsoever, other than such as represent payment for specific services rendered.

2 .The exemption from taxation referred to in paragraph l of this article shall not apply to such dues and taxes if, under the laws and regulations of the receiving State, they are payable by the person who contracted with the sending State.

Article 61

T he consular archives and documents of a consular post headed by an honorary consular officer shall be inviolable at all times and wherever they may be, provided that they are kept separate from other papers and documents and, in particular, from the private correspondence of the head of a consular post and of any person working with him, and from the materials, books or documents relating to their profession or trade

Article 62

The receiving State shall, in accordance with such laws and regulations as it may adopt, permit entry of, and grant exemption from all customs duties, taxes, and related charges other than charges for storage, cartage and similar services on the following articles, provided that they are for the official use of a consular post headed by an honorary consular officer: coats-of-arms, flags, signboards, seals and stamps, books, official printed matter, office furniture, office equipment and similar articles supplied by or at the instance of the sending State to the consular post.

Article 63

If criminal proceedings are instituted against an honorary consular officer, he must appear before the competent authorities. Nevertheless, the proceedings shall be conducted with the respect due to him by reason of his official position and, except when he is under arrest or detention, in a manner which

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will hamper the exercise of consular functions as little as possible. When it has become necessary to detain an honorary consular officer, the proceedings against him shall be instituted with the minimum of delay.

Article 64

T he receiving State is under a duty to accord to an honorary consular officer such protection as may be required by reason of his official position.

Article 65

Exemption from registration of aliens and residence permits

Honorary consular officers, with the exception of those who carry on for personal profit any professional or commercial activity in the receiving State, shall be exempt from all obligations under the laws and regulations of the receiving State in regard to the registration of aliens and residence permits.

Article 66

A n honorary consular officer shall be exempt from all dues and taxes on the remuneration an emoluments which he receives from the sending State in respect of the exercise of consular functions.

Article 67

The receiving State shall exempt honorary consular officers from all personal services and from all public services of any kind whatsoever and from military obligations such as those connected with requisitioning, military contribution s and billeting.

Article 68

Each State is free to decide whether it will appoint or receive honorary consular officers.

Article 69

1 .Each State is free to decide whether it will establish or admit consular agencies conducted by consular agents not designated as head s o f consular post by the sending State.

2 .The conditions under which the consular agencies referred to in paragraph 1 of this article may carry on their activities and the privileges and immunities which may be enjoyed by the consular agents in charge of them shall be determined by agreement between the s ending State and the receiving State.

Article 70

1 .The provisions of the present Convention apply also, so far as the context permits, to the exercise of consular functions by a diplomatic mission.

2 .The names of members of a diplomatic mission assigned to the consular section or otherwise charged with the exercise of the consular functions of the miss ion shall be notified to the Ministry for Foreign Affairs of the receiving State or to the authority designated by that Ministry.

3 .In the exercise of consular functions a diplomatic mission may address:

(a ) the local authorities of the consular district;

(b ) the central authorities of the receiving State if this is allowed by the laws , regulations and usages of the receiving State or by relevant international agreements.

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4 .The privileges and immunities of the members of a diplomatic mission referred to in paragraph 2 of this article s hall continue to be governed by the rules of international law concerning diplomatic relations.

Article 71

1 .Except insofar as additional facilities, privileges and immunities may be granted by the

receiving State, consular officers who are nationals of or permanently resident in the receiving State shall enjoy only immunity from jurisdiction and personal inviolability in respect of official acts performed in the exercise of their functions, and the privileges provided in paragraph 3 of article 44. So far as these consular officers are concerned, the receiving State shall likewise be bound by the obligation laid down in article 42. If criminal proceedings are instituted against such a consular officer, the proceedings shall, except when he is under arrest or detention, be conducted in a manner which will hamper the exercise of consular functions as little as possible.

2 .Other members of the consular post who are nationals of or permanently resident in the receiving State and members of their families, as w ell as members of the families of consular officers referred to in paragraph 1 of this article, shall enjoy facilities, privileges and immunities only insofar as these are granted to them by the receiving State. Those members of the families of members of the consular post and those members of the private staff who are themselves nationals of or permanently resident in the receiving State shall likewise enjoy facilities, privileges and immunities only insofar as these are granted to them by the receiving State. The receiving State shall, however, exercise its jurisdiction over those persons in such a way as not to hinder unduly the performance of the functions of the consular post.

Article 72

1 .In the application of the provisions of the present Convention the receiving State shall not discriminate as between States.

2 .However, discrimination shall not be regarded as taking place:

(a ) where the receiving State applies any of the provisions of the present Convention restrictively because of a restrictive application of that provision to its consular posts in the sending State;

(b ) where by custom or agreement States extend to each other more favourable treatment than is required by the provisions of the present Convention.

Vienna Convention on the Law of Treaties Done at Vienna on 23 May 1969

Article 1 Scope of the present Convention The present Convention applies to treaties between States. Article 2 Use of terms

1. For the purposes of the present Convention:

(a) “treaty” means 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;

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(b) “ratification”, “acceptance”, “approval” and “accession” mean in each case the international act so named whereby a State establishes on the international plane its consent to be bound by a treaty;

(c) “full powers” means a document emanating from the competent authority of a State designating a person or persons to represent the State for negotiating, adopting or authenticating the text of a treaty, for expressing the consent of the State to be bound by a treaty, or for accomplishing any other act with respect to a treaty;

(d) “reservation” means a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State;

(e) “negotiating State” means a State which took part in the drawing up and adoption of the text of the treaty;

(f) “contracting State” means a State which has consented to be bound by the treaty, whether or not the treaty has entered into force;

(g) “party” means a State which has consented to be bound by the treaty and for which the treaty is in force;

(h) “third State” means a State not a party to the treaty;

(i) “international organization” means an intergovernmental organization.

2. The provisions of paragraph 1 regarding the use of terms in the present Convention are without prejudice to the use of those terms or to the meanings which may be given to them in the internal law of any State.

Article 3

International agreements not within the scope of the present Convention

The fact that the present Convention does not apply to international agreements concluded between States and other subjects of international law or between such other subjects of international law, or to international agreements not in written form, shall not affect: 3

(a) the legal force of such agreements;

(b) the application to them of any of the rules set forth in the present Convention to which they would be subject under international law independently of the Convention;

(c) the application of the Convention to the relations of States as between themselves under international agreements to which other subjects of international law are also parties.

Article 4

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Non-retroactivity of the present Convention

Without prejudice to the application of any rules set forth in the present Convention to which treaties would be subject under international law independently of the Convention, the Convention applies only to treaties which are concluded by States after the entry into force of the present Convention with regard to such States.

Article 5

Treaties constituting international organizations and treaties adopted within an international organization

The present Convention applies to any treaty which is the constituent instrument of an international organization and to any treaty adopted within an international organization without prejudice to any relevant rules of the organization.

PART II.

CONCLUSION AND ENTRY INTO FORCE OF TREATIES

SECTION 1. CONCLUSION OF TREATIES

Article 6

Capacity of States to conclude treaties

Every State possesses capacity to conclude treaties.

Article 7

Full powers

1. A person is considered as representing a State for the purpose of adopting or authenticating the text of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty if:

(a) he produces appropriate full powers; or

(b) it appears from the practice of the States concerned or from other circumstances that their intention was to consider that person as representing the State for such purposes and to dispense with full powers.

2. In virtue of their functions and without having to produce full powers, the following are considered as representing their State:

(a) Heads of State, Heads of Government and Ministers for Foreign Affairs, for the purpose of performing all acts relating to the conclusion of a treaty;

(b) heads of diplomatic missions, for the purpose of adopting the text of a treaty between the accrediting State and the State to which they are accredited;

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(c) representatives accredited by States to an international conference or to an international organization or one of its organs, for the purpose of adopting the text of a treaty in that conference, organization or organ.

Article 8

Subsequent confirmation of an act performed without authorization

An act relating to the conclusion of a treaty performed by a person who cannot be considered under article 7 as authorized to represent a State for that purpose is without legal effect unless afterwards confirmed by that State.

Article 9

Adoption of the text

1. The adoption of the text of a treaty takes place by the consent of all the States participating in its drawing up except as provided in paragraph 2.

2. The adoption of the text of a treaty at an international conference takes place by the vote of two thirds of the States present and voting, unless by the same majority they shall decide to apply a different rule.

Article 10

Authentication of the text

The text of a treaty is established as authentic and definitive:

(a) by such procedure as may be provided for in the text or agreed upon by the States participating in its drawing up; or

(b) failing such procedure, by the signature, signature ad referendum or initialling by the representatives of those States of the text of the treaty or of the Final Act of a conference incorporating the text.

Article 11

Means of expressing consent to be bound by a treaty

The consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed.

Article 12

Consent to be bound by a treaty expressed by signature

1. The consent of a State to be bound by a treaty is expressed by the signature of its representative when:

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(a) the treaty provides that signature shall have that effect;

(b) it is otherwise established that the negotiating States were agreed that signature should have that effect; or

(c) the intention of the State to give that effect to the signature appears from the full powers of its representative or was expressed during the negotiation.

2. For the purposes of paragraph 1:

(a) the initialling of a text constitutes a signature of the treaty when it is established that the negotiating States so agreed;

(b) the signature ad referendum of a treaty by a representative, if confirmed by his State, constitutes a full signature of the treaty.

Article 13

Consent to be bound by a treaty expressed by an exchange of instruments constituting a treaty

The consent of States to be bound by a treaty constituted by instruments exchanged between them is expressed by that exchange when:

(a) the instruments provide that their exchange shall have that effect; or

(b) it is otherwise established that those States were agreed that the exchange of instruments should have that effect.

Article 14

Consent to be bound by a treaty expressed by ratification, acceptance or approval

1. The consent of a State to be bound by a treaty is expressed by ratification when: 6

(a) the treaty provides for such consent to be expressed by means of ratification;

(b) it is otherwise established that the negotiating States were agreed that ratification should be required;

(c) the representative of the State has signed the treaty subject to ratification; or

(d) the intention of the State to sign the treaty subject to ratification appears from the full powers of its representative or was expressed during the negotiation.

2. The consent of a State to be bound by a treaty is expressed by acceptance or approval under conditions similar to those which apply to ratification.

Article 15

Consent to be bound by a treaty expressed by accession

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The consent of a State to be bound by a treaty is expressed by accession when:

(a) the treaty provides that such consent may be expressed by that State by means of accession;

(b) it is otherwise established that the negotiating States were agreed that such consent may be expressed by that State by means of accession; or

(c) all the parties have subsequently agreed that such consent may be expressed by that State by means of accession.

Article 16

Exchange or deposit of instruments of ratification, acceptance, approval or accession

Unless the treaty otherwise provides, instruments of ratification, acceptance, approval or accession establish the consent of a State to be bound by a treaty upon:

(a) their exchange between the contracting States;

(b) their deposit with the depositary; or

(c) their notification to the contracting States or to the depositary, if so agreed.

Article 17

Consent to be bound by part of a treaty and choice of differing provisions

1. Without prejudice to articles 19 to 23, the consent of a State to be bound by part of a treaty is effective only if the treaty so permits or the other contracting States so agree. 7

2. The consent of a State to be bound by a treaty which permits a choice between differing provisions is effective only if it is made clear to which of the provisions the consent relates.

Article 18

Obligation not to defeat the object and purpose of a treaty prior to its entry into force

A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when:

(a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or

(b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed.

SECTION 2. RESERVATIONS

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Article 19

Formulation of reservations

A State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation unless:

(a) the reservation is prohibited by the treaty;

(b) the treaty provides that only specified reservations, which do not include the reservation in question, may be made; or

(c) in cases not failing under subparagraphs (a) and (b), the reservation is incompatible with the object and purpose of the treaty.

Article 20

Acceptance of and objection to reservations

1. A reservation expressly authorized by a treaty does not require any subsequent acceptance by the other contracting States unless the treaty so provides.

2. When it appears from the limited number of the negotiating States and the object and purpose of a treaty that the application of the treaty in its entirety between all the parties is an essential condition of the consent of each one to be bound by the treaty, a reservation requires acceptance by all the parties.

3. When a treaty is a constituent instrument of an international organization and unless it otherwise provides, a reservation requires the acceptance of the competent organ of that organization.

4. In cases not falling under the preceding paragraphs and unless the treaty otherwise provides: 8

(a) acceptance by another contracting State of a reservation constitutes the reserving State a party to the treaty in relation to that other State if or when the treaty is in force for those States;

(b) an objection by another contracting State to a reservation does not preclude the entry into force of the treaty as between the objecting and reserving States unless a contrary intention is definitely expressed by the objecting State;

(c) an act expressing a State’s consent to be bound by the treaty and containing a reservation is effective as soon as at least one other contracting State has accepted the reservation.

5. For the purposes of paragraphs 2 and 4 and unless the treaty otherwise provides, a reservation is considered to have been accepted by a State if it shall have raised no objection to the reservation by the end of a period of twelve months after it was notified of the reservation or by the date on which it expressed its consent to be bound by the treaty, whichever is later.

Article 21

Legal effects of reservations and of objections to reservations

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1. A reservation established with regard to another party in accordance with articles 19, 20 and 23:

(a) modifies for the reserving State in its relations with that other party the provisions of the treaty to which the reservation relates to the extent of the reservation; and

(b) modifies those provisions to the same extent for that other party in its relations with the reserving State.

2. The reservation does not modify the provisions of the treaty for the other parties to the treaty inter se.

3. When a State objecting to a reservation has not opposed the entry into force of the treaty between itself and the reserving State, the provisions to which the reservation relates do not apply as between the two States to the extent of the reservation.

Article 22

Withdrawal of reservations and of objections to reservations

1. Unless the treaty otherwise provides, a reservation may be withdrawn at any time and the consent of a State which has accepted the reservation is not required for its withdrawal.

2. Unless the treaty otherwise provides, an objection to a reservation may be withdrawn at any time.

3. Unless the treaty otherwise provides, or it is otherwise agreed: 9

(a) the withdrawal of a reservation becomes operative in relation to another contracting State only when notice of it has been received by that State;

(b) the withdrawal of an objection to a reservation becomes operative only when notice of it has been received by the State which formulated the reservation.

Article 23

Procedure regarding reservations

1. A reservation, an express acceptance of a reservation and an objection to a reservation must be formulated in writing and communicated to the contracting States and other States entitled to become parties to the treaty.

2. If formulated when signing the treaty subject to ratification, acceptance or approval, a reservation must be formally confirmed by the reserving State when expressing its consent to be bound by the treaty. In such a case the reservation shall be considered as having been made on the date of its confirmation.

3. An express acceptance of, or an objection to, a reservation made previously to confirmation of the reservation does not itself require confirmation.

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4. The withdrawal of a reservation or of an objection to a reservation must be formulated in writing.

SECTION 3. ENTRY INTO FORCE AND PROVISIONAL, APPLICATION OF TREATIES

Article 24

Entry into force

1. A treaty enters into force in such manner and upon such date as it may provide or as the negotiating States may agree.

2. Failing any such provision or agreement, a treaty enters into force as soon as consent to be bound by the treaty has been established for all the negotiating States.

3. When the consent of a State to be bound by a treaty is established on a date after the treaty has come into force, the treaty enters into force for that State on that date, unless the treaty otherwise provides.

4. The provisions of a treaty regulating the authentication of its text, the establishment of the consent of States to be bound by the treaty, the manner or date of its entry into force, reservations, the functions of the depositary and other matters arising necessarily before the entry into force of the treaty apply from the time of the adoption of its text. 10

Article 25

Provisional application

1. A treaty or a part of a treaty is applied provisionally pending its entry into force if:

(a) the treaty itself so provides; or

(b) the negotiating States have in some other manner so agreed.

2. Unless the treaty otherwise provides or the negotiating States have otherwise agreed, the provisional application of a treaty or a part of a treaty with respect to a State shall be terminated if that State notifies the other States between which the treaty is being applied provisionally of its intention not to become a party to the treaty.

PART III.

OBSERVANCE, APPLICATION AND INTERPRETATION OF TREATIES

SECTION 1. OBSERVANCE OF TREATIES

Article 26

“Pacta sunt servanda”

Every treaty in force is binding upon the parties to it and must be performed by them in good faith.

Article 27

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Internal law and observance of treaties

A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46.

SECTION 2. APPLICATION OF TREATIES

Article 28

Non-retroactivity of treaties

Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party.

Article 29

Territorial scope of treaties

Unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory.

Article 30

Application of successive treaties relating to the same subject matter

1. Subject to Article 103 of the Charter of the United Nations, the rights and obligations of States Parties to successive treaties relating to the same subject matter shall be determined in accordance with the following paragraphs.

2. When a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier or later treaty, the provisions of that other treaty prevail.

3. When all the parties to the earlier treaty are parties also to the later treaty but the earlier treaty is not terminated or suspended in operation under article 59, the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty.

4. When the parties to the later treaty do not include all the parties to the earlier one:

(a) as between States Parties to both treaties the same rule applies as in paragraph 3;

(b) as between a State party to both treaties and a State party to only one of the treaties, the treaty to which both States are parties governs their mutual rights and obligations.

5. Paragraph 4 is without prejudice to article 41, or to any question of the termination or suspension of the operation of a treaty under article 60 or to any question of responsibility which may arise for a State from the conclusion or application of a treaty the provisions of which are incompatible with its obligations towards another State under another treaty.

SECTION 3. INTERPRETATION OF TREATIES

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Article 31

General rule of interpretation

1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:

(a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;

(b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.

3. There shall be taken into account, together with the context: 12

(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;

(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;

(c) any relevant rules of international law applicable in the relations between the parties.

4. A special meaning shall be given to a term if it is established that the parties so intended.

Article 32

Supplementary means of interpretation

Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:

(a) leaves the meaning ambiguous or obscure; or

(b) leads to a result which is manifestly absurd or unreasonable.

Article 33

Interpretation of treaties authenticated in two or more languages

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1. When a treaty has been authenticated in two or more languages, the text is equally authoritative in each language, unless the treaty provides or the parties agree that, in case of divergence, a particular text shall prevail.

2. A version of the treaty in a language other than one of those in which the text was authenticated shall be considered an authentic text only if the treaty so provides or the parties so agree.

3. The terms of the treaty are presumed to have the same meaning in each authentic text.

4. Except where a particular text prevails in accordance with paragraph 1, when a comparison of the authentic texts discloses a difference of meaning which the application of articles 31 and 32 does not remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted.

SECTION 4. TREATIES AND THIRD STATES

Article 34

General rule regarding third States

A treaty does not create either obligations or rights for a third State without its consent. 13

Article 35

Treaties providing for obligations for third States

An obligation arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to be the means of establishing the obligation and the third State expressly accepts that obligation in writing.

Article 36

Treaties providing for rights for third States

1. A right arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to accord that right either to the third State, or to a group of States to which it belongs, or to all States, and the third State assents thereto. Its assent shall be presumed so long as the contrary is not indicated, unless the treaty otherwise provides.

2. A State exercising a right in accordance with paragraph 1 shall comply with the conditions for its exercise provided for in the treaty or established in conformity with the treaty.

Article 37

Revocation or modification of obligations or rights of third States

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1. When an obligation has arisen for a third State in conformity with article 35, the obligation may be revoked or modified only with the consent of the parties to the treaty and of the third State, unless it is established that they had otherwise agreed.

2. When a right has arisen for a third State in conformity with article 36, the right may not be revoked or modified by the parties if it is established that the right was intended not to be revocable or subject to modification without the consent of the third State.

Article 38

Rules in a treaty becoming binding on third States through international custom

Nothing in articles 34 to 37 precludes a rule set forth in a treaty from becoming binding upon a third State as a customary rule of international law, recognized as such.

PART IV.

AMENDMENT AND MODIFICATION OF TREATIES

Article 39

General rule regarding the amendment of treaties

A treaty may be amended by agreement between the parties. The rules laid down in Part II apply to such an agreement except insofar as the treaty may otherwise provide. 14

Article 40

Amendment of multilateral treaties

1. Unless the treaty otherwise provides, the amendment of multilateral treaties shall be governed by the following paragraphs.

2. Any proposal to amend a multilateral treaty as between all the parties must be notified to all the contracting States, each one of which shall have the right to take part in:

(a) the decision as to the action to be taken in regard to such proposal;

(b) the negotiation and conclusion of any agreement for the amendment of the treaty.

3. Every State entitled to become a party to the treaty shall also be entitled to become a party to the treaty as amended.

4. The amending agreement does not bind any State already a party to the treaty which does not become a party to the amending agreement; article 30, paragraph 4 (b), applies in relation to such State.

5. Any State which becomes a party to the treaty after the entry into force of the amending agreement shall, failing an expression of a different intention by that State:

(a) be considered as a party to the treaty as amended; and

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(b) be considered as a party to the unamended treaty in relation to any party to the treaty not bound by the amending agreement.

Article 41

Agreements to modify multilateral treaties between certain of the parties only

1. Two or more of the parties to a multilateral treaty may conclude an agreement to modify the treaty as between themselves alone if:

(a) the possibility of such a modification is provided for by the treaty; or

(b) the modification in question is not prohibited by the treaty and:

(i) does not affect the enjoyment by the other parties of their rights under the treaty or the performance of their obligations;

(ii) does not relate to a provision, derogation from which is incompatible with the effective execution of the object and purpose of the treaty as a whole.

2. Unless in a case falling under paragraph 1 (a) the treaty otherwise provides, the parties in question shall notify the other parties of their intention to conclude the agreement and of the modification to the treaty for which it provides.

PART V.

INVALIDITY, TERMINATION AND SUSPENSION OF THE OPERATION OF TREATIES

SECTION 1. GENERAL PROVISIONS

Article 42

Validity and continuance in force of treaties

1. The validity of a treaty or of the consent of a State to be bound by a treaty may be impeached only through the application of the present Convention.

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2. The termination of a treaty, its denunciation or the withdrawal of a party, may take place only as a result of the application of the provisions of the treaty or of the present Convention. The same rule applies to suspension of the operation of a treaty.

Article 43

Obligations imposed by international law independently of a treaty

The invalidity, termination or denunciation of a treaty, the withdrawal of a party from it, or the suspension of its operation, as a result of the application of the present Convention or of the provisions of the treaty, shall not in any way impair the duty of any State to fulfil any obligation embodied in the treaty to which it would be subject under international law independently of the treaty.

Article 44

Separability of treaty provisions

1. A right of a party, provided for in a treaty or arising under article 56, to denounce, withdraw from or suspend the operation of the treaty may be exercised only with respect to the whole treaty unless the treaty otherwise provides or the parties otherwise agree.

2. A ground for invalidating, terminating, withdrawing from or suspending the operation of a treaty recognized in the present Convention may be invoked only with respect to the whole treaty except as provided in the following paragraphs or in article 60.

3. If the ground relates solely to particular clauses, it may be invoked only with respect to those clauses where:

(a) the said clauses are separable from the remainder of the treaty with regard to their application;

(b) it appears from the treaty or is otherwise established that acceptance of those clauses was not an essential basis of the consent of the other party or parties to be bound by the treaty as a whole; and

(c) continued performance of the remainder of the treaty would not be unjust.

4. In cases falling under articles 49 and 50, the State entitled to invoke the fraud or corruption may do so with respect either to the whole treaty or, subject to paragraph 3, to the particular clauses alone. 16

5. In cases falling under articles 51, 52 and 53, no separation of the provisions of the treaty is permitted.

Article 45

Loss of a right to invoke a ground for invalidating, terminating, withdrawing from or suspending the operation of a treaty

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A State may no longer invoke a ground for invalidating, terminating, withdrawing from or suspending the operation of a treaty under articles 46 to 50 or articles 60 and 62 if, after becoming aware of the facts:

(a) it shall have expressly agreed that the treaty is valid or remains in force or continues in operation, as the case may be; or

(b) it must by reason of its conduct be considered as having acquiesced in the validity of the treaty or in its maintenance in force or in operation, as the case may be.

SECTION 2. INVALIDITY OF TREATIES

Article 46

Provisions of internal law regarding competence to conclude treaties

1. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance.

2. A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith.

Article 47

Specific restrictions on authority to express the consent of a State

If the authority of a representative to express the consent of a State to be bound by a particular treaty has been made subject to a specific restriction, his omission to observe that restriction may not be invoked as invalidating the consent expressed by him unless the restriction was notified to the other negotiating States prior to his expressing such consent.

Article 48

Error

1. A State may invoke an error in a treaty as invalidating its consent to be bound by the treaty if the error relates to a fact or situation which was assumed by that State to exist at the time when the treaty was concluded and formed an essential basis of its consent to be bound by the treaty. 17

2. Paragraph 1 shall not apply if the State in question contributed by its own conduct to the error or if the circumstances were such as to put that State on notice of a possible error.

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3. An error relating only to the wording of the text of a treaty does not affect its validity; article 79 then applies.

Article 49

Fraud

If a State has been induced to conclude a treaty by the fraudulent conduct of another negotiating State, the State may invoke the fraud as invalidating its consent to be bound by the treaty.

Article 50

Corruption of a representative of a State

If the expression of a State’s consent to be bound by a treaty has been procured through the corruption of its representative directly or indirectly by another negotiating State, the State may invoke such corruption as invalidating its consent to be bound by the treaty.

Article 51

Coercion of a representative of a State

The expression of a State’s consent to be bound by a treaty which has been procured by the coercion of its representative through acts or threats directed against him shall be without any legal effect.

Article 52

Coercion of a State by the threat or use of force

A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations.

Article 53

Treaties conflicting with a peremptory norm of general international law (“jus cogens”)

A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. 18

SECTION 3. TERMINATION AND SUSPENSION OF THE OPERATION OF TREATIES

Article 54

Termination of or withdrawal from a treaty under its provisions or by consent of the parties

The termination of a treaty or the withdrawal of a party may take place:

(a) in conformity with the provisions of the treaty; or

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(b) at any time by consent of all the parties after consultation with the other contracting States.

Article 55

Reduction of the parties to a multilateral treaty below the number necessary for its entry into force

Unless the treaty otherwise provides, a multilateral treaty does not terminate by reason only of the fact that the number of the parties falls below the number necessary for its entry into force.

Article 56

Denunciation of or withdrawal from a treaty containing no provision regarding termination, denunciation or withdrawal

1. A treaty which contains no provision regarding its termination and which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal unless:

(a) it is established that the parties intended to admit the possibility of denunciation or withdrawal; or

(b) a right of denunciation or withdrawal may be implied by the nature of the treaty.

2. A party shall give not less than twelve months’ notice of its intention to denounce or withdraw from a treaty under paragraph 1.

Article 57

Suspension of the operation of a treaty under its provisions or by consent of the parties

The operation of a treaty in regard to all the parties or to a particular party may be suspended:

(a) in conformity with the provisions of the treaty; or

(b) at any time by consent of all the parties after consultation with the other contracting States. 19

Article 58

Suspension of the operation of a multilateral treaty by agreement between certain of the parties only

1. Two or more parties to a multilateral treaty may conclude an agreement to suspend the operation of provisions of the treaty, temporarily and as between themselves alone, if:

(a) the possibility of such a suspension is provided for by the treaty; or

(b) the suspension in question is not prohibited by the treaty and:

(i) does not affect the enjoyment by the other parties of their rights under the treaty or the performance of their obligations;

(ii) is not incompatible with the object and purpose of the treaty.

2. Unless in a case falling under paragraph 1 (a) the treaty otherwise provides, the parties in question shall notify the other parties of their intention to conclude the agreement and of those provisions of the treaty the operation of which they intend to suspend.

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Article 59

Termination or suspension of the operation of a treaty implied by conclusion of a later treaty

1. A treaty shall be considered as terminated if all the parties to it conclude a later treaty relating to the same subject matter and:

(a) it appears from the later treaty or is otherwise established that the parties intended that the matter should be governed by that treaty; or

(b) the provisions of the later treaty are so far incompatible with those of the earlier one that the two treaties are not capable of being applied at the same time.

2. The earlier treaty shall be considered as only suspended in operation if it appears from the later treaty or is otherwise established that such was the intention of the parties.

Article 60

Termination or suspension of the operation of a treaty as a consequence of its breach

1. A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part.

2. A material breach of a multilateral treaty by one of the parties entitles:

(a) the other parties by unanimous agreement to suspend the operation of the treaty in whole or in part or to terminate it either:

(i) in the relations between themselves and the defaulting State; or

(ii) as between all the parties;

(b) a party specially affected by the breach to invoke it as a ground for suspending the operation of the treaty in whole or in part in the relations between itself and the defaulting State;

(c) any party other than the defaulting State to invoke the breach as a ground for suspending the operation of the treaty in whole or in part with respect to itself if the treaty is of such a character that a material breach of its provisions by one party radically changes the position of every party with respect to the further performance of its obligations under the treaty.

3. A material breach of a treaty, for the purposes of this article, consists in:

(a) a repudiation of the treaty not sanctioned by the present Convention; or

(b) the violation of a provision essential to the accomplishment of the object or purpose of the treaty.

4. The foregoing paragraphs are without prejudice to any provision in the treaty applicable in the event of a breach.

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5. Paragraphs 1 to 3 do not apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected by such treaties.

Article 61

Supervening impossibility of performance

1. A party may invoke the impossibility of performing a treaty as a ground for terminating or withdrawing from it if the impossibility results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty. If the impossibility is temporary, it may be invoked only as a ground for suspending the operation of the treaty.

2. Impossibility of performance may not be invoked by a party as a ground for terminating, withdrawing from or suspending the operation of a treaty if the impossibility is the result of a breach by that party either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty.

Article 62

Fundamental change of circumstances

1. A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless:

(a) the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and 21

(b) the effect of the change is radically to transform the extent of obligations still to be performed under the treaty.

2. A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty:

(a) if the treaty establishes a boundary; or

(b) if the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty.

3. If, under the foregoing paragraphs, a party may invoke a fundamental change of circumstances as a ground for terminating or withdrawing from a treaty it may also invoke the change as a ground for suspending the operation of the treaty.

Article 63

Severance of diplomatic or consular relations

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The severance of diplomatic or consular relations between parties to a treaty does not affect the legal relations established between them by the treaty except insofar as the existence of diplomatic or consular relations is indispensable for the application of the treaty.

Article 64

Emergence of a new peremptory norm of general international law (“jus cogens”)

If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates.

SECTION 4. PROCEDURE

Article 65

Procedure to be followed with respect to invalidity, termination, withdrawal from or suspension of the operation of a treaty

1. A party which, under the provisions of the present Convention, invokes either a defect in its consent to be bound by a treaty or a ground for impeaching the validity of a treaty, terminating it, withdrawing from it or suspending its operation, must notify the other parties of its claim. The notification shall indicate the measure proposed to be taken with respect to the treaty and the reasons therefor.

2. If, after the expiry of a period which, except in cases of special urgency, shall not be less than three months after the receipt of the notification, no party has raised any objection, the party making the notification may carry out in the manner provided in article 67 the measure which it has proposed. 22

3. If, however, objection has been raised by any other party, the parties shall seek a solution through the means indicated in Article 33 of the Charter of the United Nations.

4. Nothing in the foregoing paragraphs shall affect the rights or obligations of the parties under any provisions in force binding the parties with regard to the settlement of disputes.

5. Without prejudice to article 45, the fact that a State has not previously made the notification prescribed in paragraph 1 shall not prevent it from making such notification in answer to another party claiming performance of the treaty or alleging its violation.

Article 66

Procedures for judicial settlement, arbitration and conciliation

If, under paragraph 3 of article 65, no solution has been reached within a period of 12 months following the date on which the objection was raised, the following procedures shall be followed:

(a) any one of the parties to a dispute concerning the application or the interpretation of article 53 or 64 may, by a written application, submit it to the International Court of Justice for a decision unless the parties by common consent agree to submit the dispute to arbitration;

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(b) any one of the parties to a dispute concerning the application or the interpretation of any of the other articles in part V of the present Convention may set in motion the procedure specified in the Annex to the Convention by submitting a request to that effect to the Secretary-General of the United Nations.

Article 67

Instruments for declaring invalid, terminating, withdrawing from or suspending the operation of a treaty

1. The notification provided for under article 65, paragraph 1, must be made in writing.

2. Any act of declaring invalid, terminating, withdrawing from or suspending the operation of a treaty pursuant to the provisions of the treaty or of paragraphs 2 or 3 of article 65 shall be carried out through an instrument communicated to the other parties. If the instrument is not signed by the Head of State, Head of Government or Minister for Foreign Affairs, the representative of the State communicating it may be called upon to produce full powers.

Article 68

Revocation of notifications and instruments provided for in articles 65 and 67

A notification or instrument provided for in article 65 or 67 may be revoked at any time before it takes effect. 23

SECTION 5. CONSEQUENCES OF THE INVALIDITY, TERMINATION OR SUSPENSION OF THE OPERATION OF A TREATY

Article 69

Consequences of the invalidity of a treaty

1. A treaty the invalidity of which is established under the present Convention is void. The provisions of a void treaty have no legal force.

2. If acts have nevertheless been performed in reliance on such a treaty:

(a) each party may require any other party to establish as far as possible in their mutual relations the position that would have existed if the acts had not been performed;

(b) acts performed in good faith before the invalidity was invoked are not rendered unlawful by reason only of the invalidity of the treaty.

3. In cases falling under article 49, 50, 51 or 52, paragraph 2 does not apply with respect to the party to which the fraud, the act of corruption or the coercion is imputable.

4. In the case of the invalidity of a particular State’s consent to be bound by a multilateral treaty, the foregoing rules apply in the relations between that State and the parties to the treaty.

Article 70

Consequences of the termination of a treaty

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1. Unless the treaty otherwise provides or the parties otherwise agree, the termination of a treaty under its provisions or in accordance with the present Convention:

(a) releases the parties from any obligation further to perform the treaty;

(b) does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination.

2. If a State denounces or withdraws from a multilateral treaty, paragraph 1 applies in the relations between that State and each of the other parties to the treaty from the date when such denunciation or withdrawal takes effect.

Article 71

Consequences of the invalidity of a treaty which conflicts with a peremptory norm of general international law

1. In the case of a treaty which is void under article 53 the parties shall:

(a) eliminate as far as possible the consequences of any act performed in reliance on any provision which conflicts with the peremptory norm of general international law; and 24

(b) bring their mutual relations into conformity with the peremptory norm of general international law.

2. In the case of a treaty which becomes void and terminates under article 64, the termination of the treaty:

(a) releases the parties from any obligation further to perform the treaty;

(b) does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination, provided that those rights, obligations or situations may thereafter be maintained only to the extent that their maintenance is not in itself in conflict with the new peremptory norm of general international law.

Article 72

Consequences of the suspension of the operation of a treaty

1. Unless the treaty otherwise provides or the parties otherwise agree, the suspension of the operation of a treaty under its provisions or in accordance with the present Convention:

(a) releases the parties between which the operation of the treaty is suspended from the obligation to perform the treaty in their mutual relations during the period of the suspension;

(b) does not otherwise affect the legal relations between the parties established by the treaty.

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2. During the period of the suspension the parties shall refrain from acts tending to obstruct the resumption of the operation of the treaty.

PART VI.

MISCELLANEOUS PROVISIONS

Article 73

Cases of State succession, State responsibility and outbreak of hostilities

The provisions of the present Convention shall not prejudge any question that may arise in regard to a treaty from a succession of States or from the international responsibility of a State or from the outbreak of hostilities between States.

Article 74

Diplomatic and consular relations and the conclusion of treaties

The severance or absence of diplomatic or consular relations between two or more States does not prevent the conclusion of treaties between those States. The conclusion of a treaty does not in itself affect the situation in regard to diplomatic or consular relations. 25

Article 75

Case of an aggressor State

The provisions of the present Convention are without prejudice to any obligation in relation to a treaty which may arise for an aggressor State in consequence of measures taken in conformity with the Charter of the United Nations with reference to that State’s aggression.

PART VII.

DEPOSITARIES, NOTIFICATIONS, CORRECTIONS AND REGISTRATION

Article 76

Depositaries of treaties

1. The designation of the depositary of a treaty may be made by the negotiating States, either in the treaty itself or in some other manner. The depositary may be one or more States, an international organization or the chief administrative officer of the organization.

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2. The functions of the depositary of a treaty are international in character and the depositary is under an obligation to act impartially in their performance. In particular, the fact that a treaty has not entered into force between certain of the parties or that a difference has appeared between a State and a depositary with regard to the performance of the latter’s functions shall not affect that obligation.

Article 77

Functions of depositaries

1. The functions of a depositary, unless otherwise provided in the treaty or agreed by the contracting States, comprise in particular:

(a) keeping custody of the original text of the treaty and of any full powers delivered to the depositary;

(b) preparing certified copies of the original text and preparing any further text of the treaty in such additional languages as may be required by the treaty and transmitting them to the parties and to the States entitled to become parties to the treaty;

(c) receiving any signatures to the treaty and receiving and keeping custody of any instruments, notifications and communications relating to it;

(d) examining whether the signature or any instrument, notification or communication relating to the treaty is in due and proper form and, if need be, bringing the matter to the attention of the State in question;

(e) informing the parties and the States entitled to become parties to the treaty of acts, notifications and communications relating to the treaty; 26

(f) informing the States entitled to become parties to the treaty when the number of signatures or of instruments of ratification, acceptance, approval or accession required for the entry into force of the treaty has been received or deposited;

(g) registering the treaty with the Secretariat of the United Nations;

(h) performing the functions specified in other provisions of the present Convention.

2. In the event of any difference appearing between a State and the depositary as to the performance of the latter’s functions, the depositary shall bring the question to the attention of the signatory States and the contracting States or, where appropriate, of the competent organ of the international organization concerned.

Article 78

Notifications and communications

Except as the treaty or the present Convention otherwise provide, any notification or communication to be made by any State under the present Convention shall:

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(a) if there is no depositary, be transmitted direct to the States for which it is intended, or if there is a depositary, to the latter;

(b) be considered as having been made by the State in question only upon its receipt by the State to which it was transmitted or, as the case may be, upon its receipt by the depositary;

(c) if transmitted to a depositary, be considered as received by the State for which it was intended only when the latter State has been informed by the depositary in accordance with article 77, paragraph 1 (e).

Article 79

Correction of errors in texts or in certified copies of treaties

1. Where, after the authentication of the text of a treaty, the signatory States and the contracting States are agreed that it contains an error, the error shall, unless they decide upon some other means of correction, be corrected:

(a) by having the appropriate correction made in the text and causing the correction to be initialled by duly authorized representatives;

(b) by executing or exchanging an instrument or instruments setting out the correction which it has been agreed to make; or

(c) by executing a corrected text of the whole treaty by the same procedure as in the case of the original text.

2. Where the treaty is one for which there is a depositary, the latter shall notify the signatory States and the contracting States of the error and of the proposal to correct it and shall specify an appropriate time-limit within which objection to the proposed correction may be raised. If, on the expiry of the time-limit:

(a) no objection has been raised, the depositary shall make and initial the correction in the text and shall execute a procès-verbal of the rectification of the text and communicate a copy of it to the parties and to the States entitled to become parties to the treaty;

(b) an objection has been raised, the depositary shall communicate the objection to the signatory States and to the contracting States.

3. The rules in paragraphs I and 2 apply also where the text has been authenticated in two or more languages and it appears that there is a lack of concordance which the signatory States and the contracting States agree should be corrected.

4. The corrected text replaces the defective text ab initio, unless the signatory States and the contracting States otherwise decide.

5. The correction of the text of a treaty that has been registered shall be notified to the Secretariat of the United Nations.

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6. Where an error is discovered in a certified copy of a treaty, the depositary shall execute a procès-verbal specifying the rectification and communicate a copy of it to the signatory States and to the contracting States.

Article 80

Registration and publication of treaties

1. Treaties shall, after their entry into force, be transmitted to the Secretariat of the United Nations for registration or filing and recording, as the case may be, and for publication.

2. The designation of a depositary shall constitute authorization for it to perform the acts specified in the preceding paragraph.

PART VIII.

FINAL PROVISIONS

Article 81

Signature

The present Convention shall be open for signature by all States Members of the United Nations or of any of the specialized agencies or of the International Atomic Energy Agency or parties to the Statute of the International Court of Justice, and by any other State invited by the General Assembly of the United Nations to become a party to the Convention, as follows: until 30 November 1969, at the Federal Ministry for Foreign Affairs of the Republic of Austria, and subsequently, until 30 April 1970, at United Nations Headquarters, New York.

Article 82

Ratification

The present Convention is subject to ratification. The instruments of ratification shall be deposited with the Secretary-General of the United Nations.

Article 83

Accession

The present Convention shall remain open for accession by any State belonging to any of the categories mentioned in article 81. The instruments of accession shall be deposited with the Secretary-General of the United Nations.

Article 84

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Entry into force

1. The present Convention shall enter into force on the thirtieth day following the date of deposit of the thirty-fifth instrument of ratification or accession.

2. For each State ratifying or acceding to the Convention after the deposit of the thirty-fifth instrument of ratification or accession, the Convention shall enter into force on the thirtieth day after deposit by such State of its instrument of ratification or accession.

Article 85

Authentic texts

The original of the present Convention, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations.

IN WITNESS WHEREOF the undersigned Plenipotentiaries, being duly authorized thereto by their respective Governments, have signed the present Convention.

DONE at Vienna this twenty-third day of May, one thousand nine hundred and sixty-nine.

A. The Philippine Constitution

Documents

Transcript of A. The Philippine Constitution