1

A. The Constitution

1. Definition, Nature and Concepts

The document which serves as the fundamental law of the state.1 That writteninstrument enacted by direct action of the people by which the fundamental powers of thegovernment are established, limited and defined, and by which those powers are distributedamong the several departments for their safe and useful exercise for the benefit of the bodypolitic.2

2. Parts

Constitution of Liberty The series of prescriptions setting forth thefundamental civil and political rights of the citizensand imposing limitations on the powers ofgovernment as a means of securing the enjoyment ofthose rights.3

Constitution of Government The series of provisions outlining the organization ofthe government, enumerating its powers, layingdown certain rules relative to its administration,and defining the electorate.4

Constitution of Sovereignty The provisions pointing out the mode or procedurein accordance with which formal changes inthe fundamental law may be brought about.5

1 V. Sinco, Philippine Political Law, 11th ed., p.68-702 Malcolm, Philippine Constitutional Law, p.6.3 Art. III4 Arts. VI, VII, VIII, IX5 Art. XVII

2

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 becomesoperative without the aid of supplementary orenabling legislation, or that which supplies asufficient rule by means of which the right it grantsmay be enjoyed or protected.

Non-Self-Executing Provision One which lays down a general principle

6 Required Steps In The Amendatory ProcessA. 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 ofthe 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 membersof Congress, or, if such vote is not obtained, by a majority vote of all the members of Congress with thequestion 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 theamendments. There is a valid proposal when a proposition has received the approval of at least 3% of theregistered voters of each district and 12% of the total number of registered voters nationwide. This isfollowed by the “referendum” phase where the people vote to reject or ratify the proposal.

B. RatificationBoth 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 toimprove specific parts or to add new provisions or to suppress existing ones accordingly as addition orsubtraction might be demanded by existing conditions.7 In revision, the guiding intention and plan contemplate a re-examination of the entire document or animportant cluster of provisions in the document to determine how and to what extent it should bealtered. The end product of a revision can be an important structural change in the government or achange which affects several provisions of the Constitution.

A revision of the Constitution cannot be effected through initiative and referendum. The changeauthorized by Art. XVII, Sec. 2 through initiative and referendum can only be amendment. The mainreason is that formulation of provisions revising the Constitution requires both cooperation and debatewhich can only be done through a collegial body.

3

5. General Provisions8

The flag of the Philippines shall be red, white, and blue, with a sun and three stars, asconsecrated 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 anational seal, which shall all be truly reflective and symbolic of the ideals, history, and traditionsof the people. Such law shall take effect only upon its ratification by the people in a nationalreferendum.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 whichshall undergo military training and serve as may be provided by law. It shall keep a regular forcenecessary for the security of the State.12

All members of the armed forces shall take an oath or affirmation to uphold and defendthis Constitution.

The State shall strengthen the patriotic spirit and nationalist consciousness of themilitary, and respect for people's rights in the performance of their duty.

Professionalism in the armed forces and adequate remuneration and benefits of itsmembers shall be a prime concern of the State. The armed forces shall be insulated frompartisan politics. No member of the military shall engage, directly or indirectly, in any partisanpolitical activity, except to vote.

No member of the armed forces in the active service shall, at any time, be appointed ordesignated 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 recruitedproportionately 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 Presidentmay extend such tour of duty.13

The State shall establish and maintain one police force, which shall be national in scopeand civilian in character, to be administered and controlled by a national police commission. Theauthority of local executives over the police units in their jurisdiction shall be provided by law.14

8 Art. X9 Sec. 110 Sec. 211 Sec. 312 Sec. 413 Sec. 514 Sec. 6

4

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

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

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

The State shall provide the policy environment for the full development of Filipinocapability and the emergence of communication structures suitable to the needs and aspirationsof the nation and the balanced flow of information into, out of, and across the country, inaccordance 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 thePhilippines, or to corporations, cooperatives or associations, wholly-owned and managed bysuch citizens.

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

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

Only Filipino citizens or corporations or associations at least seventy per centum of thecapital 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 industryshall be limited to their proportionate share in the capital thereof, and all the executive andmanaging officers of such entities must be citizens of the Philippines.19

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

15 Sec. 716 Sec. 817 Sec. 918 Sec. 1019 Sec. 1120 Sec. 12

5

B. General Considerations

1. National Territory21

a. Archipelagic Doctrine

It is defined as “the waters around, between and connecting the islands of thearchipelago, regardless of their breadth and dimensions, form part of the internal waters of thePhilippines.”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 doctrineappears to prohibit only suits against the state without its consent, it is also applicable tocomplaints filed against officials of the state for acts allegedly performed by them in thedischarge of their duties. The rule is that if the judgment against such officials will require thestate itself to perform an affirmative act to satisfy the same, such as the appropriation of theamount needed to pay the damages awarded against them, the suit must be regarded as againstthe 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 suchfor acts contrary to law and injurious to the rights of plaintiff. Inasmuch as the State authorizesonly legal acts by its officers, unauthorized acts of govt. officials or officers are not acts of theState, and an action against the officials or officers by one whose rights have been invaded orviolated by such acts, for the protection of his rights, is not a suit against the State within therule of immunity of the State from suit. The doctrine of state immunity cannot be used as aninstrument for perpetrating an injustice.

The cloak of immunity is removed from the moment the public official is sued in hisindividual capacity such as where he acts without authority or in excess of the powers vested inhim. A public official may be liable in his personal capacity for whatever damage he may havecaused by his act done with malice and in bad faith, or beyond the scope of his authority orjurisdiction. In this case, the officers are liable for damages.

21 Art. I22 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 thelocal State. The added basis in this case is the principle of the sovereign equality of States, under w/c oneState 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 dulyenacted statute. Waiver of state immunity can only be made by an act of legislative body.

6

3. Principles and Policies24

Principles25

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

The Philippines renounces war as an instrument of national policy, adopts the generallyaccepted principles of international law as part of the law of the land and adheres to the policyof 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 thePhilippines is the protector of the people and the State. Its goal is to secure the sovereignty ofthe State and the integrity of the national territory.29

24 Art. II25 Binding rules which must be observed in the conduct of the government (Tanada vs. Angara, see VicenteSinco, 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 highestofficial 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, mustresort to the rule of law rather than taking the law into his hands. It is a weapon of reason andcivility.

The SC castigated a Mayor for expelling alleged prostitutes from Manila and dumped them againsttheir will in Davao. The Court said that such act constitutes a wanton violation of the principle that “oursis 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 officialsD. Bill of rights

27 Sec. 128 Sec. 2

Doctrine of IncorporationThe 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 ofinternational law are automatically part of our own laws.

The doctrine of incorporation, as applied in most countries, decrees that rules of international law aregiven equal standing with, but are not subject to, national legislative enactments. Accordingly, theprinciple of lex posterior derogat priori takes effect. In states where the constitution is the highest law ofthe land, such as the Philippines, both statutes and treaties may be invalidated if they are in conflict withthe 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;

7

The prime duty of the Government is to serve and protect the people. The Governmentmay call upon the people to defend the State and, in the fulfillment thereof, all citizens may berequired, 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 thepromotion of the general welfare are essential for the enjoyment by all the people of theblessings 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 theparamount consideration shall be national sovereignty, territorial integrity, national interest, andthe right to self-determination.34

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

The State shall promote a just and dynamic social order that will ensure the prosperityand 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 withinthe AFP [Sec. 5, Art. XVI]; and

9. the establishment of a police force that is not only civilian in character but also under the localexecutives [Sec. 6, Art. XVI].

30 Sec. 431 Sec. 532 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]; and6. 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 religiousgroups and mission boards [Sec. 4 (2), Art. XIV].

33 Guidelines for the orientation of the state (see IV Record of the Constitutional Commission, 768 and580)34 Sec. 735 Sec. 8

Policy of freedom from nuclear weaponsThe 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 armtests. Exception to this policy may be made by the political department; but it must be justified by thedemands of the national interest. But the policy does not prohibit the peaceful uses of nuclear energy.

8

adequate social services, promote full employment, a rising standard of living, and an improvedquality 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 forhuman rights.39

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

The State recognizes the vital role of the youth in nation-building and shall promote andprotect their physical, moral, spiritual, intellectual, and social well-being. It shall inculcate in theyouth 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 thefundamental equality before the law of women and men.42

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

The State shall protect and advance the right of the people to a balanced and healthfulecology in accord with the rhythm and harmony of nature.44

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

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

36 Sec. 937 It simply means the equalization of economic, political and social opportunities with special emphasis onthe duty of the State to tilt the balance of social forces by favoring the disadvantaged in life.38 Sec. 1039 Sec. 1140 Sec. 1241 Sec. 13

R.A. 7610, which penalizes child prostitution and other sexual abuses, was enacted in consonance withthe policy of the State to provide special protection to children from all forms of abuse; thus, the Courtgrants the victim full vindication and protection granted under the law. (People v. Larin, G.R. No. 128777,October 7, 1998)42 Sec. 1443 Sec. 1544 Sec. 16

This provision recognizes an enforceable right.45 Sec. 17

The requirement that a school must first obtain governmental authorization before operating is basedon 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 andfacilities and administrative and management viability. (Philippine Merchant Marine School, Inc. v. CA, 244SCRA 770)

9

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

The State recognizes the indispensable role of the private sector, encourages privateenterprise, 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 withinthe framework of national unity and development.50

The State shall encourage non-governmental, community-based, or sectoralorganizations 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 prohibitpolitical dynasties as may be defined by law.54

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

Subject to reasonable conditions prescribed by law, the State adopts and implements apolicy of full public disclosure of all its transactions involving public interest.56

46 Sec. 1847 Sec. 1948 Sec. 2049 Sec. 2150 Sec. 2251 Sec. 2352 Sec. 2453 Sec. 25

Decentralization of Administration - delegation of administrative powers to local government unit inorder to broaden the base of governmental powers.

Decentralization of Powers – abdication of political power in the favor of local governments unitsdeclared 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 politicalopportunities55 Sec. 2756 Sec. 28

10

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 judicialpower is held by an independent Judiciary.

The principle of separation of powers is based on the conception that if the totality ofgovernmental powers were concentrated in one person or group of persons, the possibility ofestablishing a despotic and tyrannical regime capable of suppressing and suffocating the rights ofthe people becomes a tempting reality.

5. Checks and Balances

This allows one department to resist encroachments upon its prerogatives or to rectifymistakes or excesses committed by the other departments, e.g. veto power of the President ascheck 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 aright but a duty to be performed by the delegate through the instrumentality of his ownjudgment 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 toirreparable error or abuse in exercise to the detriment of republican institutions. (PangasinanTransportation 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 theCA 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 underminethe principle of separation of powers. The Executive has no authority to set aside and overrule a decisionof the SC. (Bengzon vs. Drilon, 208 SCRA 133, April 15, 1992)58 Permissible Delegation59 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 675362 Art X; R.A. 716063 power of subordinate legislation

11

7. Forms of Government

Presidential One in which the state, the sovereign, makes theexecutive independent of the legislature, both in tenureand prerogative, and furnishes him with sufficientpower to prevent the legislature from trenching upon thesphere marked out by the State as executive independenceand prerogative.64

Parliamentary One in which the state confers upon the legislature thecomplete control of the administration of laws. Underthis system, the Cabinet or Ministry is immediately andlegally responsible to the legislature or one branchthereof, usually the more popular chamber, andmediately or politically responsible to the electorate, whilethe titular or nominal executive – the King or Chief ofState- occupies a position of irresponsibility.65

Unitary or centralized One in which the powers of government are vested inone supreme organ from which all local governingauthorities derive their existence and powers. ThePhilippine government is an example of a unitaryform of government.66

Federal One in which the governmental powers are, bycommon sovereign, distributed between a centralgovernment and the local government, each beingsupreme within its own sphere.67

64 The principal identifying feature of a presidential form of government is embodied in the separation ofpowers doctrine. Each department of government exercises powers granted to it by the Constitution andmay not control, interfere with or encroach upon the acts done within the constitutional competence ofthe others. However, the Constitution also gives each department certain powers by which it maydefinitely restrain the others from improvident action, thereby maintaining a system of checks andbalances 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 andexecutive branches in parliament; the prime minister, who is the head of government, and the membersof the cabinet, who are chosen from among the members of parliament and as such are accountable tothe latter. Another feature is that the prime minister may be removed from office by a vote of loss ofconfidence by the parliament. There may be a head of state who may or may not be elected and whousually merely exercises ceremonial functions.66 The essence of a unitary form of government is the fact that a single organization has been created bythe sovereign people (the people) through their constitution, to which is left the task of providing for theterritorial distribution of governmental powers with which it is invested. (Aruego and Laguio)67 Id.

12

C. Legislative Department68

1. Who May Exercise Legislative Power69

a. Congress

The power of the Congress to legislate is complete, full and plenary embracing allsubjects 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 ordinancesand 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 proposeamendments to the Constitution or topropose and enact legislation throughan election called for the purpose.

Power of the electorate to approve orreject legislation through an election calledfor that purpose.

68 Art. VI69 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 byCongress;

2. Referendum on Local Laws – legal process whereby the registered voters of the local governmentunits may approve, amend or reject any ordinance enacted by the sanggunian. (Sec. 126, RA 7160 or theLGC of 1991)

13

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 amongthe provinces, cities and the Metropolitan Manila area;

ii. Party-list Representatives – shall constitute 20% of the total number ofrepresentatives, elected through a party-list system of registered national, regional andsectoral parties or organizations.72

(1) District Representatives and Questions of Apportionment

Representative districts are apportioned among provinces, cities and municipalities inaccordance with the number of their respective inhabitants, and on the basis of a uniform andprogressive ratio.73

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

Each district must be contiguous, compact and adjacent. Gerrymandering74 is notallowed.

Reapportionment within 3 years following return of every census.

(2) Party-List System

The party-list system is a mechanism of proportional representation in the election ofrepresentatives to the House of Representatives from national, regional and sectoral parties ororganizations or coalitions thereof registered with the COMELEC.75

72 The Party-list organization must represent the “marginalized and underprivileged” and the nomineesthemselves must comply with this qualitative requirement (Ang Bagong Bayani, et al. vs. Comelec G.R. No.147589, June 26, 2001)73 The underlying principle behind this rule for apportionment is the concept of equality of representationwhich is a basic principle of republicanism. One man’s vote should carry as much weight as the vote ofevery other man.74 Formation of one legislative district out of separate territories for the purpose of favoring a candidate ora party (Bernas, Reviewer in Philippine Constitution, P. 186)75 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 limitparticipation to parties or organizations representing the “marginalized and underprivileged.”

14

3. Legislative Privileges, Inhibitions and Disqualifications

A Senator or Member of the House of Representatives shall, in all offenses punishableby not more than six years imprisonment, be privileged from arrest76 while the Congress is insession. No Member shall be questioned nor be held liable in any other place for any speech ordebate in the Congress77 or in any committee thereof.

All Members of the Senate and the House of Representatives shall, upon assumption ofoffice, make a full disclosure of their financial and business interests. They shall notify theHouse concerned of a potential conflict of interest that may arise from the filing of a proposedlegislation of which they are authors.78

No Senator or Member of the House of Representatives may hold any other office oremployment in the Government, or any subdivision, agency, or instrumentality thereof,including government-owned or controlled corporations or their subsidiaries, during his termwithout forfeiting his seat. Neither shall he be appointed to any office which may have beencreated or the emoluments thereof increased during the term for which he was elected.79

No Senator or Member of the House of Representatives may personally appear ascounsel before any court of justice or before the Electoral Tribunals, or quasi-judicial and otheradministrative bodies. Neither shall he, directly or indirectly, be interested financially in anycontract with, or in any franchise or special privilege corporation, or its subsidiary, during his

76 Congress must be in session, whether regular or special. It does not matter where the member ofCongress may be found (attending the session, socializing in a private party, or sleeping at home); so longas 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. Itfollows too that if the crime is punishable by 6 years and 1 day of prision mayor or more, the member canbe 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 performanceof official duties. (Jimenez vs. Cabangbang, 17 SCRA 876) To come under the privilege, it is not essentialthat the Congress be in session when the utterance is made. What is essential is that the utterance mustconstitute “legislative action,” that is, it must be part of the deliberative and communicative process bywhich legislators participate in committee or congressional proceedings in the consideration of proposedlegislation or of other matters which the Constitution has placed within the jurisdiction of the Congress.77This privilege protects the member concerned from any libel suit that may be filed against him for aspeech made "in" the halls of Congress or in any of its committees. Speech is not confined to traditionalspeech but even to the casting of votes, the making of reports, a debate or discussion, evencommunicative actions, and any other form of expression.

The speech, however, must be made "in" Congress in the discharge of legislative duty. Thus,78 Sec. 1279 Sec. 13

An incompatible office is a post which a member cannot accept unless he waives or forfeits his seat inCongress. A sensu contrario, if he waives or forfeits his seat, he may accept the other post, since theincompatibility 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 seatin Congress. The effect of his resignation from the Congress is the loss of his seat therein but hisdisqualification 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 increasingits emolument as a way of circumventing the prohibition. However, the prohibition is not forever (as inthe Jones Law); it is for the term for which he was elected.

15

term of office. He shall not intervene in any matter before any officer of the Government forhis pecuniary benefit or where he may be called upon to act on account of his office.80

4. Quorum and Voting Majorities

A majority of each House shall constitute a quorum to do business, but a smallernumber may adjourn from day to day and may compel the attendance of absent Members insuch manner, and under such penalties, as such House may provide.81

5. Discipline of Members82

Each house may punish its members for disorderly behavior83, and, with the concurrenceof 2/3 of all its members, suspend84 or expel a member. A penalty of suspension, when imposed,shall not exceed sixty days.

80 Sec. 14What 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 lawin 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.81 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 theattendance of the absent (recalcitrant) members by the means of arrest or such other measures andpenalties 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 Senatorswho are in the country and within the coercive jurisdiction of the Senate. (Avelino v. Cuenco, 83 Phil. 17)82 Sec. 16 (3)83 The determination of the acts which constitute disorderly behavior is within the full discretionaryauthority of the House concerned, and the Court will not review such determination, the same being apolitical question. (Osmena vs. Pendatun, 109 Phil. 863)84 for not more than 60 days

16

6. Electoral Tribunals and the Commission on Appointments

a. Nature

Electoral Tribunal85 Commission on Appointments86

Independent of the Houses of Congress, andits decision may be reviewed by the SConly upon showing of grave abuse ofdiscretion in a petition for certiorari filedunder Rule 65 of the Rules of Court.87

It acts as a legislative check on theappointing authority of the President. Forthe effectivity of the appointment of certainkey officials enumerated in the Constitution,the consent of the Commission onAppointments is needed.

b. Powers

Electoral Tribunals Commission on Appointments88

1. Sole judge of all contests relating tothe election, returns and qualification oftheir respective members.89

2. Rule-making power90

1. Shall act on all appointments submittedto it within 30 session days of Congressfrom their submission; and

2. Power to promulgate its own rulesof proceedings.

85 Composition:1) 3 Supreme Court Justices designated by Chief Justice; and2) 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 systemSenior Justice shall act as Chairman.86 Composition:

1) 12 Senators and 12 Representatives, elected by each house on the basis of proportionalrepresentation from the political parties and parties and organizations registered under the party-listsystem represented therein.

2) Senate President as ex-officio chairman.3) Chairman shall not vote except in case of tie.

87 Pena vs. HRET, G.R. No. 123037, March 21, 199788 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.89 Art. VI, Sec. 1790 Lazatin v. HRET, 168 SCRA 391

17

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 mayconduct 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.91

The heads of departments may, upon their own initiative, with the consent of thePresident92, 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 Houseof Representatives at least three days before their scheduled appearance. Interpellations shall notbe limited to written questions, but may cover matters related thereto. When the security of theState or the public interest so requires and the President so states in writing, the appearance shallbe conducted in executive session.93

(2) Bicameral Conference Committee

Bills or "suggested laws" are put forward by either Congress or Senate but it has to beapproved by both bodies before it can proceed to become law. There are some cases where theversion 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, andeach version needs to be approved by both Congress and Senate. To resolve this issue, abicameral conference committee is created which takes representatives from both Congress andSenate and they unify the two differing bills into one coherent law.

91 Sec. 21Each 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 emptyterm. However, the exercise of such duty is not illimitable. It has to be exercised in accordance with thelimitations imposed by the Constitution: (a) in aid of legislation; (b) in accordance with duly publishedrules 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 statedpurpose of the investigation is to determine the existence of violations of the law, then it is beyond thescope of congressional powers.92 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.93 Sec. 22

Oversight functions:Such functions are intended to enable Congress to determine how laws it has passed are being

implemented.

18

(3) Limitations on Legislative Power

(a) Limitations on Revenue, Appropriations and TariffMeasures

All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, billsof local application, and private bills shall originate exclusively in the House of Representatives,but the Senate may propose or concur with amendments.94

(b) Presidential Veto95 and Congressional Override

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

(2) The President shall have the power to veto any particular item or items in anappropriation, revenue, or tariff bill, but the veto shall not affect the item or items to which hedoes not object.96

94 Sec. 24Shall 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 thebill 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 moneyfrom 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.95 The exercise of the veto power of the President is purely discretionary. He may veto a bill on anyground, whether on constitutional grounds or even on the wisdom and practicability of the bill whichcannot 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, thePresident is allowed to veto any item or items in an appropriation, tariff or revenue bill, but the veto shallnot affect the item or items to which he does not object.96 Sec. 27

When the President vetoes a measure, he should return the measure to the House of origin, indicatinghis objections thereto in what is commonly known as a "veto message" so that the same can be studiedby the members for possible overriding of his veto

Upon consideration of the objections raised by the President in his veto message, the House from whichthe bill originated shall reconsider the bill. If after such reconsideration, 2/3 of all the members of suchhouse shall agree to pass the bill, it shall be sent together with the objections of the President, to theother house by which it shall likewise be reconsidered. If approved by 2/3 of all the members of thathouse, 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)]

19

c. Non-Legislative

(1) Informing Function

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

Congress informs itself in an effort to produce better legislation, and of reporting itsactivities to the public.

Pocket VetoOne 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 tocommunicate his veto on any bill to the House where it originated within 30 days after receipt thereof, thebill becomes a law as if he had signed it. The inability of the President to return the bill within thereglementary period prescribed by the Constitution converts the bill, by inaction, into law.

20

D. Executive Department97

1. Privileges, Inhibitions and Disqualifications

a. Presidential Immunity

Immunity from suit during his tenure98

b. Presidential Privilege99

Two kinds:

Presidential communications privilege Communications, documents or othermaterials that reflect presidentialdecision-making and deliberations and thatthe President believes should remainconfidential.

Deliberative process privilege Includes advisory opinions, recommendationsand deliberations comprising part of aprocess by which governmental decisionsand policies are formulated.

97 Art. VII98 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 immunitymust be exercised only by the President himself and not by others on his behalf. (Soliven v. Makasiar, 167SCRA 393)99 It is highly recognized in cases where the subject of the inquiry relates to a power textually committedby the Constitution to the President, such as the area of military and foreign relations. Under ourConstitution, 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 thedoctrine of separation of powers, the information relating to those powers may enjoy greaterconfidentiality than others (Neri vs. Senate Committee on Accountability of Public Officers andInvestigation, 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)

21

2. Powers

a. Executive and Administrative Powers in General

Executive Powers Administrative Powers

The President shall have control of allexecutive departments, bureaus and offices.He shall ensure that laws are faithfullyexecuted.100

Until and unless a law is declaredunconstitutional, President has a duty toexecute it regardless of his doubts as to itsvalidity.101

(i) Create, abolish, group, coordinate,consolidate, merge or integratedepartments, bureaus, offices, agencies,instrumentalities and functions of thegovernment; and transfer functions,appropriations, equipment, property,records and personnel from one ministry,bureau, office, agency or instrumentality toanother;

(ii) Standardize salaries, materials andequipment;

(iii) Remove or otherwise discipline officersof the government as may be provided bylaw; and

(iv) Commute or remove administrativepenalties or disabilities upon officials oremployees in disciplinary cases.

b. Power of Appointment

(1) In General

The President shall nominate and, with the consent of the Commission onAppointments, appoint the heads of the executive departments, ambassadors, other publicministers 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 alsoappoint all other officers of the Government whose appointments are not otherwise providedfor 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 inthe heads of departments, agencies, commissions, or boards.

The President shall have the power to make appointments during the recess of theCongress, whether voluntary or compulsory, but such appointments shall be effective only untildisapproval by the Commission on Appointments or until the next adjournment of theCongress.102

100 Sec. 17"Control" is the power to substitute one's own judgment in that of a subordinate.

101 faithful execution clauseSec.1 and 17

102 Sec. 16

22

(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 Constitution103

(3) Midnight Appointments

Those made by the President or Acting President two months immediately before thenext presidential elections and up to the end of his term, except temporary appointments toexecutive positions when continued vacancies therein will prejudice public service or endangerpublic safety.104

(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 methodsfor separation from public service.105

c. Power of Control106 and Supervision107

(1) Doctrine of Qualified Political Agency108

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 inperson or the exigencies of the situation demand that he act personally, the multifariousexecutive and administrative functions of the Chief Executive are performed by and through theexecutive departments, and the acts of the secretaries of such departments, performed andpromulgated in the regular course of business, are, unless disapproved or reprobated by theChief Executive presumptively the acts of the Chief Executive.109

103 Sarmiento v. Mison, G.R. No. 79974, December 17, 1987104 See Section 15, Art. VII105 e.g. impeachment106 The power of an officer to alter or modify or nullify or set aside what a subordinate officer had done inthe 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 allexecutive officers, from Cabinet members to the lowliest clerk. This is an element of the presidentialsystem 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)107 It is the power of a superior officer to ensure that the laws are faithfully executed by inferiors. Thepower of supervision does not include the power of control; but the power of control necessarily includesthe power of supervision. The power of the President over local governments is only of generalsupervision.108 Alter Ego Principle109 Villena v. Secretary of Interior, 67 Phil. 451

23

(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.110

(3) Local Government Units

The President of the Philippines shall exercise general supervision over localgovernments. Provinces with respect to component cities and municipalities, and cities andmunicipalities with respect to component barangays, shall ensure that the acts of theircomponent units are within the scope of their prescribed powers and functions.111

d. Military Powers112

1. To call out the Armed Force to prevent or suppress lawless violence, invasion orrebellion; and/or organize courts martial and create military commissions.113

2. Suspension of the Privilege of Writ of Habeas Corpus and Declaration of MartialLaw114

e. Pardoning Power

(1) Nature and Limitations

Nature Limitations

Discretionary, may not be controlled bythe 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 electionlaws without favorable recommendationsof the COMELEC;

c. can be granted only after convictions byfinal judgment;115

110 Sec. 17111 Sec. 4112 Sec. 18, Art. VIII113 Commander-in –Chief clause114 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 itsmembers voting jointly.

Authority of the Supreme Court: to inquire into the sufficiency of the factual basis for such action, at theinstance 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

115 except amnesty

24

d. cannot be granted in cases oflegislative contempt or civil contempt;

e. cannot absolve convict of civil liability;and

f. cannot restore public offices forfeited.

(2) Forms of Executive Clemency

Pardon116 Act of grace which exempts individual on whom it isbestowed from punishment which the law inflicts for a crimehe has committed.

Commutation Reduction or mitigation of the penalty.

Reprieve Postponement of sentence or stay of execution.

Parole Release from imprisonment, but without full restorationof liberty, as parolee is in the custody of the law althoughnot in confinement.

Amnesty Act of grace, concurred in by the Legislature, usuallyextended to groups of persons who committedpolitical offenses, which puts into oblivion the offense itself.

f. Diplomatic Power117

No treaty or international agreement shall be valid and effective unless concurred in byat least 2/3 of all members of Senate.118

In public international law, the conduct of foreign relations or diplomatic power isvested in the Head of State or sovereign. In States which observe the doctrine of separation ofpowers, the President holds actual executive power including the conduct of foreign relations.

116 Pardon Classified:1.Plenary or partial; and2.Absolute or conditional.117 Some of the foreign relations powers of the President

a. The power to negotiate treaties and international agreementsb. The power to appoint ambassadors and other public ministers and consulsc. The power to receive ambassadors and other public ministers accredited to the Philippinesd. The power to contract and guarantee foreign loans on behalf of the Republice. The power to deport aliens

118 Sec. 21

25

g. Powers relative to appropriation measures

The President shall submit to the Congress, within thirty days from the opening of everyregular session as the basis of the general appropriations bill, a budget of expenditures andsources of financing, including receipts from existing and proposed revenue measures.119

h. Delegated powers

In times of war or other national emergency, the Congress may, by law, authorize thePresident, for a limited period and subject to such restrictions as it may prescribe, to exercisepowers necessary and proper to carry out a declared national policy. Unless sooner withdrawnby resolution of the Congress, such powers shall cease upon the next adjournment thereof.120

The Congress may, by law, authorize the President to fix within specified limits, andsubject to such limitations and restrictions as it may impose, tariff rates, import and exportquotas, tonnage and wharfage dues, and other duties or imposts within the framework of thenational development program of the Government.121

i. Veto powers

Every bill passed by the Congress shall, before it becomes a law, be presented to thePresident. If he approves the same he shall sign it; otherwise, he shall veto it and return the samewith his objections to the House where it originated, which shall enter the objections at large inits Journal and proceed to reconsider it. If, after such reconsideration, two-thirds of all theMembers 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 ofall the Members of that House, it shall become a law. In all such cases, the votes of each Houseshall be determined by yeas or nays, and the names of the Members voting for or against shall beentered in its Journal. The President shall communicate his veto of any bill to the House whereit originated within thirty days after the date of receipt thereof, otherwise, it shall become a lawas if he had signed it.

The President shall have the power to veto any particular item or items in anappropriation, revenue, or tariff bill, but the veto shall not affect the item or items to which hedoes not object.122

j. Residual Powers

Whatever is not judicial, whatever is not legislative, is residual power exercised by thePresident.123

119 Sec. 22120 Sec. 23 (2), Art. VI121 Sec. 28 (2), id.122 Sec. 27, id.123 Marcos v. Manglapus, 178 SCRA 760

26

C. Rules on Succession

The President-elect and the Vice President-elect shall assume office at the beginning oftheir terms.

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

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

If at the beginning of the term of the President, the President-elect shall have died orshall 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, orwhere both shall have died or become permanently disabled, the President of the Senate or, incase of his inability, the Speaker of the House of Representatives, shall act as President until aPresident 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 asPresident shall be selected until a President or a Vice-President shall have qualified, in case ofdeath, permanent disability, or inability of the officials mentioned in the next precedingparagraph.124

In case of death, permanent disability, removal from office, or resignation of thePresident, the Vice-President shall become the President to serve the unexpired term. In case ofdeath, 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 ofRepresentatives, shall then act as President until the President or Vice-President shall have beenelected 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 orthe Vice-President shall have been elected and qualified, and be subject to the same restrictionsof powers and disqualifications as the Acting President.125

Whenever there is a vacancy in the Office of the Vice-President during the term forwhich he was elected, the President shall nominate a Vice-President from among the Membersof the Senate and the House of Representatives who shall assume office upon confirmation by amajority vote of all the Members of both Houses of the Congress, voting separately.126

124 Sec. 7, Art. VII125 Sec. 8, id.126 Sec. 9, id.

27

E. Judicial Department127

1. Concepts

a. Judicial Power128

The duty of courts of justice to settle actual controversies involving rights which arelegally demandable and enforceable, and to determine whether or not there has been a graveabuse of discretion amounting to lack or excess of jurisdiction on the part of any branch orinstrumentality of government.129

b. Judicial Review130

The power of the courts, ultimately of the SC, to interpret the Constitution and todeclare 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 theConstitution. Through such power, the SC enforces and upholds the supremacy of theConstitution

(1) Operative Fact Doctrine

An unconstitutional law has an effect before being declared unconstitutional. Thedoctrine of operative fact as an exception to the general rule, only applies as a matter of equityand fair play.131 It nullifies the effects of an unconstitutional law by recognizing that the existenceof a statute prior to a determination of unconstitutionality is an operative fact and may haveconsequences which cannot always be ignored. The past cannot always be erased by a newjudicial declaration.132

127 Art. VIII128 vested in:1. One Supreme Court; and2. Such lower courts as may be established by law (Sec. 1, Art. VIII).129 Sec. 1, par.2130 All courts can exercise Judicial Review:

The Constitution contemplates that the inferior courts should have jurisdiction in cases involvingconstitutionality of any treaty or law for Sec. 5 (2), Art. VIII speaks of appellate review of final judgments ofinferior courts in cases where such constitutionality happens to be in issue. (J.M. Tuason and Co. v. Courtof 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 ismandatory, as required in Sec. 3, Rule 64 of the Rules of Court. The purpose of this mandatory notice is toenable 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)131 Planters Products vs. Fertiphil Corp., G.R. No. 166006, March 14, 2008, citing Republic vs. Court ofAppeals, G.R. No. 79732, November 8, 1993, 227 SCRA 509.132 Planters Products, supra citing Peralta vs. Civil Service Commission, G.R. No. 95832, August 10, 1992,212 SCRA 425.

28

(2) Moot Questions133

A case becomes moot when there are facts, injuries and heated arguments but forsome reason the legal problem has become stale. When a case is moot and academic, itceases to be a case and controversy. Any decision reached by the court would not beconclusive on the parties.

(3) Political Question Doctrine

Those questions which, under the Constitution, are to be decided by the people in theirsovereign capacity; or in regard to which full discretionary authority has been delegated to thelegislature or executive branches of government.134

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 jurisdictionmay 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-judicialor 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

133 Moot refers to a subject for academic argument. They are abstract questions that do not arise fromexisting facts or rights.

The Court may still exercise the power of judicial review even if the issues had become moot andacademic 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.

134 Tañada v. Cuenco, 100 Phil 1101

29

3. Judicial Restraint

A legal term that describes a type of judicial interpretation that emphasizes the limitednature of the court's power. Judicial restraint asks judges to base their judicial decisions solely onthe 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 isclearly unconstitutional. Judicial restraint is the opposite of judicial activism, in that it seeks tolimit the power of judges to create new laws or policy. In most cases, the judicially restrainedjudge will decide a cases in such a way as to uphold the law established by Congress. Jurists whopractice judicial restraint show a solemn respect for the separation of governmental problems.

4. Appointments to the Judiciary

i. Appointed by President from among a list of at least 3 nominees prepared by Judicialand Bar Council for every vacancy.

ii. For lower courts, President shall issue the appointment 90 days from submission ofthe list.

5. Supreme Court

a. En Banc and Division Cases

En Banc Cases135 Division Cases136

1. All cases involving the constitutionalityof a treaty, international or executiveagreement, or law

2. All cases which under the Rules of Courtmay be required to be heard en banc

3. All cases involving theconstitutionality, application or operationof presidential decrees, proclamations,orders, instructions, ordinances andother regulations

Other cases or matters may be heard indivision, and decided or resolved withthe concurrence of a majority of themembers who actually took part inthe deliberations on the issues andvoted thereon, but in no case withoutthe concurrence of at least three (3) suchmembers.

135 When the Supreme Court sits en banc, cases are decided by the concurrence of a majority of themembers 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 aquestion of constitutionality. This is a liberalization of the old rule which required a qualified majority of adefinite number. Moreover, those who did not take part in the deliberation do not have the right to vote.136 Decisions of a Division of the SC are not appealable to the Court en banc. Decisions or resolutions of adivision of the Court, when concurred in by a majority of its members who actually took part in thedeliberations on the issues in a case and voted thereon is a decision or resolution of the SC itself. The SCsitting en banc is not an appellate court vis-à-vis its divisions, and it exercises no appellate jurisdiction overthe latter. Each division of the Court is considered not a body inferior to the Court en banc, and sitsveritably as the Court en banc itself. The only constraint is that any doctrine or principle of law laid downby the Court, either rendered en banc or in division, may be overturned or reversed only by the Courtsitting en banc (Firestone Ceramics v. CA, G.R. No. 127245, June 28, 2000)

30

4. Cases heard by a division when therequired majority in the division is notobtained

5. Cases where the Supreme Court modifiesor reverses a doctrine or principle oflaw previously laid down either en bancor in division

6. Administrative cases involving thediscipline or dismissal of judges of lowercourts

7. Election contests for President orVice-President.

b. Procedural Rule Making137

Promulgate rules concerning the protection and enforcement of constitutional rights,pleading, practice, and procedure in all courts, the admission to the practice of law, theIntegrated Bar, and legal assistance to the underprivileged. Such rule shall provide a simplifiedand inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts ofthe same grade, and shall not diminish, increase, or modify substantive rights. Rules ofprocedure of special courts and quasi-judicial bodies shall remain effective unless disapproved bythe Supreme Court.138

c. Administrative Supervision over Lower Courts139

The Supreme Court shall have administrative supervision over all courts and thepersonnel thereof.140

137 The SC declared that the 1987 Constitution took away the power of Congress to repeal, alter orsupplement rules concerning pleading, practice and procedure. The power to promulgate rules ofpleading, practice and procedure is no longer shared by the Court with Congress, more so with theExecutive. (Echegaray vs. Secretary of Justice, G.R. No. 132601)138 Art. VIII, Sec. 5 (5)139 In the absence of any administrative action taken against the RTC Judge by the SC with regard to theJudge’s certificate of service, the investigation conducted by the Ombudsman encroaches into the SC’spower of administrative supervision over all courts and its personnel, in violation of the doctrine ofseparation of powers. (Maceda v. Vasquez, 221 SCRA 464)140 Art. VIII, Sec. 6

31

F. Constitutional Commissions141

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 actingcapacity;142

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

h. The Commissions enjoy fiscal autonomy;

i. Each Commission may promulgate its own procedural rules, provided they do notdiminish, increase or modify substantive rights [though subject to disapproval by the SC;

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

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

141 The CSC, COMELEC, and CoA are equally pre‐eminent in their respective spheres. Neither onemay claim dominance over the others. In case of conflicting rulings, it is the Judiciary, which interpretsthe meaning of the law and ascertains which view shall prevail (CSC v. Pobre, G.R. No. 160508, Sept.15, 2004)142 Brillantes v. Yorac, 192 SCRA 358

32

2. Powers and Functions of each commission

Civil Service Commission:143 a. The Commission has the power to grant civilservice eligibility.144

b. It has the power to hear and decide administrative cases.145

c. The CSC shall administer the civil service.146

d. The CSC as the personnel agency of thegovernment 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 resourcesdevelopment programs for all levels and ranks;

h. It shall institutionalize a management climateconducive to public accountability.

i. It shall submit to the President and the Congressan annual report on its personnel programs.147

Commission on Elections:148 a. Enforce and administer law and regulations

143 The Commission is an administrative agency, nothing more. As such, it can only perform powersproper to an administrative agency. It can perform executive powers, quasi-judicial powers and quasilegislative or rule-making powers (Bernas Commentary, p. 1003 (2003 ed.)144 In the exercise of its powers to implement R.A. 6850 (granting civil service eligibility to employeesunder provisional or temporary status who have rendered seven years of efficient service), the CSCenjoys 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)145 Under the Administrative Code of 1987, the CSC has the power to hear and decide administrativecases instituted before it directly or on appeal, including contested appointments.146 Sec.1(1), Art. IX-B147 Sec. 3, id.148 Art. IX-C

Like the CSC, the COMELEC is an administrative agency. As such, therefore, the power it possesses areexecutive, quasi-judicial and quasi legislative. By exception, however, it has been given judicial power asjudge with exclusive original jurisdiction over “all contest relating to the election, returns, andqualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contestinvolving elective municipal officials decided by trial courts of general jurisdiction or involvingelective 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 whichexpressly requires that 1) all election cases, including pre-proclamation controversies, shall be decided bythe COMELEC in division, and 2) the motion for reconsideration shall be decided by the COMELEC en banc.

33

relative to conduct of elections, plebiscite,initiative, referendum or recall;149

b. Decide, except those involving right to vote, allquestions affecting elections, including the determinationof number and location of polling places, appointmentof election officials and inspectors and registration ofvoters;150

c. Decide administrative questions.151

d. Deputize, with concurrence of President, lawenforcement agencies and instrumentalities forexclusive purpose of insuring free, orderly, honest,peaceful and credible elections;152

e. Register, after sufficient publication, politicalparties, organizations or coalitions which must presenttheir platform or program of government; accreditcitizen’s arms;153

f. Power to Promulgate Rules154

g. Supervision or regulation of franchises155

h. Contempt powers156

i. Issue writs of certiorari, prohibition and mandamus in

The prosecution of election law violators involves the exercise of the COMELEC's administrativepowers. Thus, the COMELEC en banc can directly approve the recommendation of its Law Department tofile the criminal information for double registration against petitioners in the instant case. There is noconstitutional requirement that the filing of the criminal information be first decided by any of thedivisions of the COMELEC. (Baytan vs. Comelec, G.R. No. 153945, February 4, 2003)149 e.g. COMELEC can enjoin construction of public works within 45 days of an electioin150 Sec. 2(2)

These petitions are cognizable by the regular courts (MTCs)151 Sec. 2(3)152 Sec. 2(4)

This power is not limited to the election periodApplies to both criminal and administrative cases

153 Sec. 2(5)Groups that cannot be registered:1. Religious denominations/sects2. Those that achieve their goals through violence or unlawful means3. Those that refuse to uphold and adhere to the Constitution4. Those supported by any foreign government, e.g. receipt of financial contributions related toelections

154 Sec. 3, id.155 Sec, 4, id.156 COMELEC can exercise this power only in relation to its adjudicatory or quasi-judicial functions. Itcannot 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 powersIt jurisdiction over ‘contests’ (after proclamation) is in exercise of its judicial functions

34

the exercise of its appellate jurisdiction;

j. File upon verified complaint or motu proprio petitionsin court for inclusion or exclusion of voters; investigateand, where appropriate , prosecute cases of violationsof elections laws, including acts or omissionsconstituting election frauds, offenses and malpractices;157

k. Recommend to Congress effective measures tominimize election spending, limitation of places andprevent and penalize all forms of election frauds,offenses, malpractice and nuisance candidates;158 and

j. Recommend to the President the removal of any officeror employee it has deputized, or the imposition of anyother disciplinary action, for violation or disregard or, ordisobedience to its directive, order or decision.159

m. Submit to President and Congress, comprehensivereports on conduct of each election, plebiscite,initiative, referendum or recall.

n. In special cases, power to fix the election period.160

Commission on Audit a. Examine, audit and settle all accounts pertaining torevenue and receipts of, and expenditures or uses of fundsand property owned or held in trust or pertainingto government, any of its subdivisions, agenciesor instrumentalities and GOCCs with original charters;

b. Conduct post-audit with respect to the following:

1. Constitutional bodies, commissions, andoffices granted fiscal autonomy

2. Autonomous state colleges and universities

3. GOCCs and their subsidiaries incorporatedunder the Corporation Code

4. Non-governmental entities receiving subsidyor equity, directly or indirectly, from or throughthe government, which are required by law thegranting institution to submit such audit

157 COMELEC has exclusive jurisdiction to investigate and prosecute cases for violation of election laws. Itcan 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.158 Secs. 2(7), (8) and (9), id.159 Sec. 5, id160 Sec. 9, id.

35

c. If COA finds the internal control of auditedagencies inadequate, COA may adopt measures,including temporary or special pre-audit, as necessary tocorrect deficiencies

d. Keep general accounts of government andpreserve vouchers and supporting papers pertainingthereto;

e. Exclusive authority to define scope of its auditand examination, establish techniques and methodsrequired therefor; and

f. Promulgate accounting and auditing rules andregulations, including those for preventionand disallowance.161

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.162

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

d. Be financially interested directly or indirectly, in any contract with, or in any franchiseor privilege granted by the government, any of its subdivisions, agencies or instrumentalities,including government-owned or controlled corporations or their subsidiaries.163

161 The functions of COA can be classified as:1. Examining and auditing all forms of government revenues and expenditures2. Settling government accounts3. Promulgating accounting and auditing rules4. Deciding administrative cases involving expenditures of public funds

162 Teaching is not included in the prohibition.163 Government subsidiaries can be created either by special law or under the Corporation Code, the lawdoes not distinguish. Sequestered Private Corporations are not included in the prohibition.

36

4. Jurisdiction of each constitutional commission

Civil Service Commission 1. Jurisdiction on Personnel actions164

2. Original jurisdiction to hear anddecide a complaint for cheating.165

Commission on Elections 1. Original jurisdiction over contests relating toelections, 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 courtsof general jurisdiction

b. Elective barangay officials declared by trial courts oflimited jurisdiction

c. COMELEC may issue extraordinary writs ofcertiorari, prohibition and mandamus

3. Exclusive jurisdiction to investigate and prosecute cases forviolations of election laws.166

Commission on Audit:167 Jurisdiction shall extend over but not limited to thefollowing cases and matters:

1. Disallowance of expenditures or uses of governmentfunds and properties found to be illegal, irregular,unnecessary, excessive, extravagant or unconscionable;

2. Money claims due from or owing to any governmentagency;

164 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 agencyhead, then to the CSC. The RTC does not have jurisdiction over such personal actions. (Olanda v.Bugayong, 2003)165 The Commission has original jurisdiction and decide a complaint for cheating in the Civil Serviceexaminations committed by government employees. The fact that the complaint was filed by the CSC itselfdoes not mean that it cannot be an impartial judge. (Cruz v. CSC, 2001)166 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)167 See Powers and Functions, supra

37

3. Determination of policies, promulgation of rulesand regulations, and prescription of standards governingthe performance by the Commission of its powersand functions;

4. Resolution of novel, controversial, complicated ordifficult questions of law relating to government accountingand auditing;

5. Charges made in the audit of revenues and receiptsresulting from under-appraisal, under-assessment or under-collection;

6. Audit of the books, records and accounts of publicutilities as provided by law;

7. Visitorial power over non-governmental organizations (1)subsidized by the government, (a) those required to paylevies or government share, (b) those funded bydonations through the government, (c) those forwhich government has put up a counterpart fund, or(d) those entrusted with government funds or properties;

8. Authorization and enforcement of the settlement ofaccounts subsisting between agencies of the government;

9. Compromise or release in whole or in part, of any settledclaim or liability to any government agency;

10. Power to require the submission of papers relativeto government obligations;

11. Opening and revision of settled accounts;

12. Retention of money due to a person for satisfaction ofhis indebtedness to the government;

13. Seizure by the Auditor of the office of the localtreasurer found to have a shortage in cash;

14. Checking and audit of all property or supplies ofthe government agency;

15. Constructive distraint of property of any accountableofficer with shortage in his accounts upon a finding of aprima facie case of malversation of public funds orproperty against him;

16. In coordination with appropriate legal bodies,collection of indebtedness found to be due a government

38

agency in the settlement and adjustment of its accounts bythe 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 whetheror not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction onthe part of any branch or instrumentality of the Government, the courts can review acts of alladministrative agencies, not only in the performance of their adjudicative function, but even inthe performance of their other functions168 through the special civil action of certiorari.

Civil Service Commission Administrative Circular 1-95169 which took effect onJune 1, 1995, provides that final resolutions of the CSCshallbe appealable by certiorari to the CA within 15 daysfrom receipt of a copy thereof. From the decision of theCA, the party adversely affected thereby shall file apetition for review on certiorari under Rule 45 of theRules of Court.

Commission on Audit Judgments or final orders of the Commission may bebrought by an aggrieved party to the Supreme Courton certiorari under Rule 65. Only when COA acts withoutor excess in jurisdiction, or with grave abuse ofdiscretion amounting to lack or excess of jurisdiction,the SC may entertain a petition for certiorari under Rule 65.170

Commission on Elections Only decision en banc may be brought to the Supreme Courtby certiorari since Article IX-C says that motionsfor reconsideration of decisions shall be decided bythe Commission en banc.171

168 quasi-legislative, administrative169 pursuant to R.A. 7902170 The certiorari jurisdiction of the Supreme Court is limited to decision rendered in actions orproceedings 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’sappointing power. Hence, questions arising from the award of a contract for the construction ofvoting booths can be brought before a trial court. Similarly, actions taken by the COMELEC as prosecutorcome under the jurisdiction of the trial court which has acquired jurisdiction over the criminal case.)171 Reyes v. RTC, 1995

39

Bill of Rights172

1. Fundamental Powers of the State

a. Concept and Application

Police Power The power of promoting public welfare by restrainingand regulating the use of liberty and property.

Power of Eminent Domain This is also known as the power of expropriation, it isdescribed as the highest and most exact idea of propertyremaining in the government that may be acquired for somepublic purpose through a method in the nature of acompulsory sale to the state.

Power of Taxation Taxes are enforced proportional contributions from personsand 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 areexacted.

b. Requisites173 for Valid Exercise

Police Power174 1. Lawful Subject – the interests of the public in general,as distinguished from those of a particular class, requirethe exercise of the power;

2. Lawful Means – the means employed arereasonably necessary for the accomplishment of thepurpose, and not unduly oppressive on individuals;

Power of Imminent Domain 1. Necessity – when exercised by:

Congress – political question;

Delegate – justiciable question

2. Private property – all private property capable ofownership may be expropriated, except money and choses

172 Set of prescriptions setting forth the fundamental civil and political rights of the individual, andimposing limitations on the powers of government as a means of securing the enjoyment of those rights.173 or limitations174 When exercised by a delegate:

1. express grant by law;2. within territorial limits – for LGUs except when exercised to protect water supply; and3. must not be contrary to law.

40

in action; may include services175

3. Taking - when:

a. owner actually deprived or dispossessed of hisproperty;

b. there is practical destruction or a materialimpairment of value of property;

c. owner is deprived of ordinary use of his property; and

d. owner is deprived of jurisdiction, supervision andcontrol of his property.176

4. Public use - has been broadened to include not onlyuses directly available to the public but also thosewhich redound to their indirect benefit; that only a fewwould actually benefit from the expropriation of theproperty foes not necessarily diminish the essence andcharacter of public use.177

5. Just compensation - compensation is qualified by theword just to convey that equivalent must be real, substantial,full and fair; the value of the property must be determinedeither as of the date of the taking of the property or thefiling of the complaint, whichever came first.178

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

175 Republic v. PLDT, 26 SCRA 620176 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).177 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 condemnoras owner to alter and decide its use so long as it still for public use. (Republic vs. C.A., G.R. No. 146587, July2, 2002)178 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 consequentialdamages

Fair market value – the price that maybe agreed upon by parties who are willing but are notcompelled to enter into a contract of sale.

Consequential damages – consist of injuries directly caused on the residue of the private propertytaken by reason of expropriation

41

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:179

a. Due process of law;

b. Equal protection of law;

c. Uniformity, equitability, and progressivity oftaxation;

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 thePresident to fix tariff rates, import andexport quotas, tonnage and wharfage dues;

i. Tax exemption of properties actually, directlyand exclusively used for religious, charitableand educational purposes;

j. Majority vote of all members of Congressrequired in case of legislative grant oftax exemptions;

k. Non-impairment of the Supreme Court’sjurisdiction in tax cases;

179 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.

42

l. Tax exemption of revenues and assets of,Including grants, endowments, donations, orcontributions 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; PrivateEntities

Government

Property takenand purpose

Usually noxious;noxious purpose

Wholesome;public purpose

Wholesome: publicPurpose

Compensation Intangible, altruisticfeeling of contributing tothe public good

Full and fairEquivalent ofthe property taken

Protection given orpublic improvements

43

d. Delegation

Police power180 Congress may validly delegate this power tothe President, to administrative bodiesand to lawmaking bodies of local governmentunits. Local government units exercisethe power under the general welfare clause181

and under Secs. 391, 447, 458 and 468,R.A. 7160.182

Power of Eminent Domain Congress may validly delegate this power tothe President, administrative bodies,local government units, and evenprivate enterprises performing public services.

Power of Taxation Congress may validly delegate this power tolocal government bodies183 and to alimited extent, the President whengranted delegated tariff powers184

2. Private Acts and the Bill of Rights

In the absence of governmental interference, the liberties guaranteed by theConstitution cannot be invoked against the State. The Bill of Rights guarantee governsthe relationship between the individual and the State. Its concern not the relationbetween private individuals. What it does is to declare some forbidden zones the privatesphere inaccessible to any power holder.185

In the absence of governmental interference, the liberties guaranteed by theConstitution cannot be invoked/by/private individuals. Put differently, the Bill of Rights isnot meant to be invoked against acts of private individuals.186

However, the Supreme Court,187 where the husband invoked his right to privacy ofcommunication and correspondence against a private individual, his wife, who had forciblytaken from his cabinet and presented as evidence against him documents and privatecorrespondence, held these papers inadmissible in evidence, upholding the husband’s rightto privacy.

180 inherently vested in the Legislature181 Sec. 16, R.A. 7160, see Reference182 See Reference183 Sec. 5, Art. X184 Sec. 28 (2), Art. VI185 People v. Marti, G.R. No. 81561, Jan. 18, 1991186 Yrasegui vs. PAL, G.R. No. 168081, Oct. 17, 2008187 in Zulueta v. CA, G.R. No. 107383, Feb. 20 1996

44

3. Due Process188

No person shall be deprived of life, liberty or property without due process of law.189

a. Relativity of Due Process

The guaranties of due process are universal in their application to all persons within theterritorial 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 astheir properties are concerned.

b. Procedural and Substantive Due Process

Procedural Due Process Substantive Due Process

Due process was understood to relate chieflyto the mode of procedure whichgovernment agencies must follow, it wasunderstood as a guarantee of proceduralfairness. Its essence is a “law which hearsbefore it condemns”. Thus, it serves as arestriction on actions of judicial andquasi-judicial agencies of government.

The due process clause must beinterpreted both as a procedural and asubstantive guarantee. It must be aguarantee against the exercise of arbitrarypower even when the power is exercisedaccording to proper forms and procedure.Thus, it serves as a restriction ongovernment’s law and rule-making power.

c. Constitutional and Statutory Due Process

Constitutional Due Process Statutory Due Process

Protects the individual from thegovernment and assures him of his rightsin criminal, civil or administrativeProceedings.

While found in the Labor Code andImplementing Rules protects employeesfrom being unjustly terminated withoutjust cause after notice and hearing.190

188 Art. III, Sec. 1That which hears before it condemns, which proceeds upon inquiry and renders judgment only

after trial (Darmouth College v. Woodward, 4 Wheaton 518).189 People v. Cayat, G.R. No. L‐45987, May 5, 1939190 Agabon v. NLRC, G.R. No. 158693, November 17, 2004

45

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 inour society” and the “threat of sanctions may deter their exercise almost as potently as the actualapplication of sanctions,” they “need breathing space to survive,” permitting governmentregulation only “with narrow specificity.”

Property and property rights can be lost through prescription; but human rights areimprescriptible. If human rights are extinguished by the passage of time, then the Bill of Rightsus a useless attempt to limit the power of government and ceases to be an efficacious shieldagainst 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 absenceof such protection could well lead to anarchy and tyranny. Property is an important instrumentfor the preservation and enhancement of personal dignity.

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

e. Judicial Standards of Review191

Deferential review Intermediate review Strict scrutiny

Laws are upheld if theyrationally further a legitimategovernmental interest,without courts seriouslyinquiring into thesubstantiality of such interestand examining the alternativemeans by which the objectivescould be achieved

The substantiality of thegovernmental interest isseriously looked into andthe availability of lessrestrictive alternatives areconsidered.

The focus is on thepresence of compelling,rather than substantialgovernmental interest andon the absence of lessrestrictive means forachieving that interest.192

191 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 thevery lis mota of the case, i.e. an unavoidable question (People v. Vera, 66 Phil 56 (1937)192 Separate opinion of Justice Mendoza in Estrada v. Sandiganbayan, G.R. No. 148965, Feb. 26, 2002

46

f. Void-for-Vagueness Doctrine

It holds that a law is vague when it lacks comprehensive standards that men ofcommon intelligence must necessarily guess at its common meaning and differ as to itsapplication. In such instance, the statute is repugnant to the Constitution because:

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

2. It leaves law enforcers an unbridled discretion in carrying out its provisions.193

4. Equal Protection

Nor shall any person be denied the equal protection of the laws.194

a. Concept

The Equal Protection Clause is a specific constitutional guarantee of the Equality of thePerson. 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 alsocommands the State to pass laws which positively promote equality or reduce existinginequalities.

“All person or things similarly situated should be treated alike, both as to rightsconferred and responsibilities imposed”. The equal protection clause is a specific constitutionalguarantee of the Equality of the Person. The equality guarantees the “legal equality or as it isusually put, the equality of all persons before the law. Under it, each individual is dealt with as anequal person in the law, which does not treat the person differently because of who he is orwhat he is or what he possess.195

b. Requisites for Valid Classification

1. Substantial distinction

2. Germane to the purpose of the law-the distinction which must make for realdifferences 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

193 People v. de la Piedra, G.R. No. 128777, Jan. 24, 2001194 Art. III, Sec.1195 The equality guaranteed however, “is not disembodied equality”. It does not deny to the state thepower to recognize and act upon factual differences between individuals and classes. It recognizes thatinherent in the right to legislate is the right to classify.

47

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.196

2) Strict Scrutiny Test

A legislative classification which impermissibly interferes with the exercise of afundamental right or operates to the peculiar disadvantage of a suspect class is presumedunconstitutional, and that the burden is upon the government to prove that the classification isnecessary to achieve a compelling State interest and that it is the less restrictive means to protectsuch interest.

Under strict scrutiny, the state must establish that it has a compelling interest thatjustifies and necessitates the law in question.197

The focus is on the presence of compelling, rather than substantial governmentalinterest and on the absence of less restrictive means for achieving that interest.198

3) Intermediate Scrutiny Test

Where the government must show that the challenged classification serves an importantState interest and that the classification is substantially related to that interest.

Under the standard, if a statute contains a quasi-suspect classification,199 the classificationmust be substantially related to the achievement of an important governmental objective.200

196 Black’s Law Dictionary, 9th Ed.197 Black’s Law Dictionary, 9th Ed.198 Separate opinion of Justice Mendoza in Estrada v.Sandiganbayan, G.R. No. 148965, Feb.26, 2002199 such as gender or legitimacy200 Black’s Law Dictionary, 9th Ed.

48

5. Searches and Seizures201

a. Concept

Not just a circumscription of the power of the state over a person’s home andpossessions. More important, it protects the privacy and sanctity of the person himself. It is aguarantee of the right of the people to be secure in their “persons…against unreasonablesearches and seizures”. It is therefore also a guarantee against unlawful arrests and other formsof restraint on the physical liberty of the person. The constitutional guarantee is not aprohibition 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. Artificialperson are also entitled to the guarantee, although they may be required to open their books ofaccounts for examination by the state in the exercise of police and taxing powers.

b. Warrant Requirement

(1) Requisites

1. Probable Cause202

2. Determination of probable cause to be determined personally by the judge afterexamination under oath or affirmation of the complainant and the witnesses he may produce203

201 “The right of the people to be secure in their persons, houses, papers and effects against unreasonablesearches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrantor warrant of arrest shall issue except upon probable cause to be determined personally by the judgeafter examination under oath or affirmation of the complainant and the witnesses he may produce andparticularly describing the place to be searched and the persons or things to be seized.” (Art. III, Sec. 2).202 Such facts and circumstances antecedent to the issuance of the warrant that in themselves aresufficient 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 notpoint to a specific offender. But in either case, it should be emphasized that what is required is not proofbeyond reasonable doubt but merely probable cause. Evidence required to establish guilt is notnecessary.203 Art. III, Sec. 2

What the constitution underscores is the exclusive and personal responsibility of the issuing judge tosatisfy himself of the existence of the probable cause. In satisfying himself of the existence of theprobable cause for the issuance of the warrant of arrest, the judge is not required to personally examinedthe complainant and his witnesses and on the basis thereof issue a warrant of arrest. He may also rely onthe prosecutor’s report or if on the basis thereof, he finds no probable cause, he may disregard theprosecutor’s report and require the submission of supporting affidavits of witnesses to aid him in arrivingat 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 issuingjudge 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, 233SCRA 439)

In the preliminary examination for the issuance of a warrant of arrest, the court is not tasked to reviewin detail the evidence submitted during the preliminary investigation. It is sufficient that the judge

49

3. Must refer to one Specific offense

4. Particularity of Description204

c. Warrantless Searches

Eight Instances of Valid Warrantless Searches and Seizures:

1. When the right is voluntarily waived205

2. When there is valid reason to “stop-and-frisk”206

3. Where the search207 is an incident to a lawful arrest208.

4. Search of Vessels and Aircrafts209

5. Search of Moving Vehicles/Automobiles at borders or constructive borders210.

6. Where prohibited articles are in plain view211

personally evaluates the report and supporting documents submitted by the prosecution in determiningprobable cause.204 The court concluded in the case of People vs. Veloso, 42 P 886 that it is invariably recognized that thewarrant for the apprehension of an unnamed party is void “except those causes where it contains adescriptio personae such as will enable the officer to identify the accused.” The description must besufficient 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 generalwarrant which does not satisfy the requirement of particularity of description. (Pangandaman v. Casar159 S 599)

The “scatter-shot warrant” charging more than one offense was declared null and void and the seizureof the money, which was not indicated in the warrant was held unlawful.205 Requisites of Valid Waiver

1.That the right exists2.That the persons involved had knowledge, either actual or constructive of the existence of such right3.That the said person had an actual intention to relinquish the right

206 The vernacular designation of the right of a police officer to stop a citizen on the street, interrogatehim and pat him for weapon(s). (Terry v. Ohio 392 US 1)207 and seizure208 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 havebeen used or constitute proof in the commission of an offense without a search warrant”.

209 Where a fishing vessel found to be violating fishery laws maybe seized without a warrant on twogrounds: firstly, because they are usually equipped with powerful motors that enable them to eludepursuit and secondly, because the seizure would be an incident to a lawful arrest. (Roldan v. Arca, 65 S336)210 Rule: Vehicles/automobiles may be searched only at borders or constructive borders. Search madewithin the interior of territory is justified only if there is probable cause.211 Under this exception, the objects “falling in the plain view of an officer who has a right to be in theposition to have that view are subject to seizure and maybe introduced in evidence”.

Rule: The discovery must be “Inadvertent”

50

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

8. Search and Seizure under exigent and emergency circumstances212

9. Conduct of “areal target zoning” and “saturation drive” in the exercise of militarypowers 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 actuallycommitting or is attempting to commit an offense213

2. When an offense has just been committed and he has probable cause to believebased on personal knowledge of facts or circumstances that the person to be arrestedcommitted it214

3. When the person to be arrested is a prisoner who has escaped from a penalestablishment or place where he is serving final judgment or temporarily confined while his caseis pending or has escaped while being transferred from one confinement to another. 215

Thus, if an officer encounters prohibited objects only after poking around, the discovery would not beinadvertent.212 Where the SC deemed it a bounded duty, in light of advertence thereto by the parties, to delve into thelegality of the warrantless search conducted by the raiding team. The instant case falls under one of theexceptions to the prohibition against warrantless search. There was general chaos and disorder at thattime because of the simultaneous and intense firing within the vicinity of the office and in the nearbyCamp Aguinaldo which was under attack by rebel forces. The courts in the surrounding areas wereobviously closed and for that matter, the building and houses therein were deserted. The raiding teamhad no opportunity to apply for and secure a search warrant from the courts. Under such urgency andexigency of the moment, a search warrant could lawfully be dispensed with. (People v. de Gracia, July 6,1994)213 The most common application of this in flagrante delicto rule is the buy-bust operation conducted toenforce the Dangerous Drugs Act. A buy-bust operation is a form of entrapment. The method is for anofficer to pose as a buyer. He however neither instigates nor induces the accused to commit a crimebecause in these cases the seller has already decided to commit a crime. Since the offense happens rightbefore the eyes of the officer, there is no need for a warrant either for the seizure of the goods or for theapprehension of the offender (People V Burgos)214 Otherwise known as the rule on hot pursuit arrests. In effecting this type of arrest, it is not enough thatthere is reasonable ground to believe that the person to be arrested has committed a crime. A crime mustin fact or actually have been committed first. The fact of the commission of the offense must beundisputed.

Law enforcement officers may not actually witness the execution of acts constituting the offense, butthey must have direct knowledge or view of the crime right after its commission. They should know for afact that a crime was committed.

Also, the arresting officers themselves must have personal knowledge of facts showing that the personto be arrested, the suspect, performed the criminal act.

51

e. Administrative Arrests216

Warrant of Arrest may be issued by administrative authorities but only for purpose ofcarrying 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 tertiaryschools is constitutional. It is within the prerogative of educationalinstitutions to require, as a condition for admission, compliance with reasonable schoolrules and regulations and policies. To be sure, the right to enroll is not absolute; it issubject to fair, reasonable, and equitable requirements.

A law requiring mandatory drug testing for officers/and employees of public andprivate offices is constitutional.

As the warrantless clause217 is couched and as has been held, “reasonableness” isthe/touchstone of the validity of a government search or/intrusion. And whether a searchat issue hews to the reasonableness standard is judged by the balancing of the governmentmandated intrusion on the individual’s privacy interest against the promotion of somecompelling state interest. In the criminal context, reasonableness requires showing probablecause to be personally determined by a judge. Given that the drug testing policy for employeesand students for that matter under R.A. 9165 is in the nature of administrative searchneeding what was referred to in Veronia case as “swift and informal procedures,” theprobable cause standard is not required or even practicable.218

215 Sec. 5, Rule 113, 2000 Revised Rules of Criminal Procedure216 Where the SC ruled that the constitutional provision against unreasonable searches and seizures doesnot require judicial intervention in the execution of a final order of deportation issued in accordance withlaw. It contemplates an order of arrest in the exercise of judicial power as a step preliminary toprosecution for a given offense of administrative action, not as a measure indispensable to carry out avalid decision by a competent official, such as legal order or deportation issued by the Commission onImmigration in pursuance of a valid legislation. The requirement for probable cause does not extend todeportation proceedings. (Morano v. Vivo, 20 S 562)217 Sec. 2, Art. III of the Constitution218 SJS v. DDB and PDEA, G.R. No. 157870, Nov. 3, 2008

52

6. Privacy of Communications and Correspondence

a. Private and Public Communications

Private Communications Public Communications

An exchange of information betweentwo individuals in a confidential relationship.

It usually means communication thatisn't private to a certain group.219

b. Intrusion, when allowed

1. Upon lawful order of the court

2. When public safety or order requires otherwise as prescribed by law220

c. Writ of Habeas Data

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

7. Freedom of Expression

a. Concept and Scope

(1) Prior Restraint221

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

219 So, if you post a comment on a message board that anyone can access, that is public communication. Ifyou say something in a public setting, where a lot of people could gain access to it, that is publiccommunication.220 Sec. 3, Art. III

When intrusion is made without a judicial order, it would have to be based upon a governmentofficial’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 ofinvaders, insurrectionists, and rebels.221 censorship

The constitution, as the paramount law, is exempt from the previous restraints by the executive andlegislative branches. Therefore, constitutional guaranties like liberty of the press are superior overlegislative acts or law.

53

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

(2) Subsequent Punishment

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

1. Libel222

2. Obscenity223

3. Criticism of Official Conduct224

b. Content-Based and Content-Neutral Regulations

Content‐based restraint Content‐neutral regulation

They are given the strictest scrutinyin light of their inherent andinvasive impact.

Substantial governmental interest is required for theirvalidity, and they are not subjectto the strictest form of judicial scrutiny rather onlyan intermediate approach‐ somewherebetween the rationality that is required of a law andthe compelling interest standard applied to content‐based restrictions.

222 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 anatural or juridical persons, or to blacken the memory or one who is dead.223 The determination of what is obscene is a judicial function224 Where the court said that a publication that tends to impede, embarrass or obstruct the court andconstitutes a clear and present danger to the administration of justice is not protected by the guaranteeof 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 hecalled incompetent and narrow minded, and announcing that he would file a bill for its reorganization. (Inre Sotto)

54

(1) Tests(2) Applications

Clear and Present Danger Test Whether the words are used in such circumstanceand of such a nature as to create a clear and presentdanger that they will bring about the substantiveevils that the state has the right to prevent.It is a question of proximity and degree.225

Dangerous Tendency Test If the words uttered create a dangerous tendency ofan evil which the State has the right to prevent. 226

Balancing of Interests test When particular conduct is regulated in the interestsof public order, and the regulations result in anindirect, conditional, partial abridgment of speech,the duty of the courts is to determine which of thetwo conflicting interests demands the greaterprotection under the particularcircumstances presented.227

225 Schenck v. US, 249 US 47, 1919Four instances where clear and present danger test applies:a. speeches that advocate dangerous ideasb. speeches that provoke a hostile audience reactionc. speeches out of contemptd. release of information that endangers free trial

The substantive evil must be extremely serious and the degree of immense extremely high beforeutterances 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 butvery likely inevitable.226 In the early stages of Philippine jurisprudence, the accepted rule was that speech may be curtailed orpunished when it “creates a dangerous tendency which the state has the right to prevent”. This standardhas been labeled the “Dangerous Tendency Rule”. All it requires, for speech to be punishable, is that therebe 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 theconstitutionality 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 toprevent, then such words are punishable. It is sufficient if the natural tendency and the probable effect ofthe utterance were to bring about the substantive evil that the legislative body seeks to prevent.Cabansag V. Fernandez, 102 Phil 152227 This is a resolution for reconsideration of Gonzales, a member of the Philippine bar who imposed witha penalty of indefinite suspension for imposing charges of impartially and corruption to the SupremeCourt.

The court held that the “clear and present danger rule” is not the only test which has been recognizedand applied by the courts. Another restrictions for permissible limitation on freedom of speech and of the

55

O’Brien Test A governmental regulation is sufficiently justifiedif:

a. It is within the constitutional power of theGovernment

b. It furthers an important orsubstantial governmental interest

c. The governmental interest is unrelated to thesuppression of free expression

d. If the incidental restriction on alleged freedomis no greater than is essential to that interest.

Grave‐but‐Improbable Danger test This test was meant to supplant the clearand present danger test.

Direct Incitement test It criticizes the clear and present danger test forbeing too dependent on the specific circumstances ofeach case.

c. Facial Challenges and the Overbreadth Doctrine

Facial Challenge A manner of challenging a statute in court, in whichthe plaintiff alleges that the statute is always, andunder all circumstances, unconstitutional, andtherefore, void.

Overbreadth Doctrine Permits a party to challenge a statute even though,as applied to him, it is not unconstitutional, but itmight be if applied to others not before the Courtwhose activities are constitutionally protected.

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

56

d. Tests228

e. State Regulation of Different Types of Mass Media

The ownership and management of mass media shall be limited to citizens of thePhilippines, or to corporations, cooperatives or associations, wholly-owned and managed bysuch citizens.

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

The advertising industry is impressed with public interest, and shall be regulated by lawfor 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 advertisingindustry.

The participation of foreign investors in the governing body of entities in such industryshall be limited to their proportionate share in the capital thereof, and all the executive andmanaging officers of such entities must be citizens of the Philippines.229

f. Commercial Speech

Communication230 that involves only the commercial interests of the speaker and theaudience.231

Communication which no more than proposes a commercial transaction.232

228 supra229 Sec. 11, Art. XVI230 such as advertising and marketing231 Black’s Law Dictionary, 9th Ed.232 Advertisement of goods or of services is an example

To enjoy protection:1. It must not be false or misleading; and2. 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; and3. 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)

57

g. Private v. Government Speech

Government Speech Private Speech

Where the/government may advance orrestrict its own speech in a mannerthat would clearly be forbidden were itregulating the speech of private citizen.233

The right of a person to freely speakone’s mind is a highly valued freedomin a republican and democratic society.234

h. Heckler’s Veto235

Occurs when an acting party's right to freedom of speech is curtailed or restricted by thegovernment in order to prevent a reacting party's behavior.236 The common example is that ofdemonstrators237causing a speech238 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 allreligion, or prefer one religion over another nor force nor influence a person to go to orremain away from Church against his will or force him to profess a belief or disbelief in anyreligion. 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 onlydirect support of institutional religion but not support indirectly accruing to churches andchurch agencies through support given to members; (2) both direct and indirect aid to religionare prohibited but only if the support involves preference of one religion over another orpreference of religion over irreligion.

233 doctrine was implied in Wooley v. Maynard in 1971234 Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002))235 The term was coined by University of Chicago professor of law Harry Kalven.236 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, ordemonstrations 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)237 reacting party238 given by the acting party

58

While there is no unanimity in non-establishment as a political principle, there issubstantial agreement on the values non-establishment seeks to protect. There are two:voluntarism and insulation of the political process from interfaith dissension.239

2) Acts permitted and not permitted by the clause

Acts permitted Acts not permitted

i. Exemption from taxation of propertiesactually, directly and exclusively used forreligious purposes.240

ii. Citizenship requirement of ownershipof educational institutions, except thoseestablished by religious groups and missionboards241

iii. Optional religious instruction in publicelementary and high schools: at the optionexpressed in writing by the parents orguardians, religious instruction taughtwithin regular class hours by instructorsdesignated or approved by the religiousauthorities of the religion to which thechildren or wards belong without additionalcost to the government242

i. A religious sect or denomination cannotbe registered as a political party.244

ii. No sectoral representatives fromthe religious sector.245

iii. Prohibition against the use of publicmoney or property for the benefit ofany religion, or of any priest, ministeror ecclesiastic.246

239 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 suchpreference would violate voluntarism and breed dissension;

2. Government funds must not be applied to religious purposes because this too would violatevoluntarism and breed interfaith dissension;

3. Government action must not aid religion because this too can violate voluntarism and breedinterfaith dissension;

4. Government action must not result in excessive entanglement with religion because this too canviolate voluntarism and breed interfaith dissension.240 Sec. 28 (3), Art. VI; see Bishop of Nueva Segovia vs. Provincial Board, 51 Phil. 352241 Sec. 4 (2), Art. XIV242 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 ahistorical landmark, was upheld as for “public use” and any benefits that would reap the adherents ofIglesia 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 havinga patron saint for the barrio, then any activity intended to facilitate the worship of the patron saint, suchas 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)

59

iv. Appropriation allowed where theminister or ecclesiastic is employed inthe armed forces, in a penal institution, orin a government-owned orphanageor leprosarium.243

3) Test

Lemon test It is a test to determine whether an actof the government violates thenon-establishment clause. To pass thetest, a government act or policymust:

1. Have a secular purpose;

2. Not promote or favor anyset of religious beliefs or religion generally;and

3. Not get the government tooclosely involved247 with religion.

b. Free Exercise Clause

Guarantees the free exercise of religion.

Embraces two (2) concepts:

1. Freedom to Believe – absolute248

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

244 Sec. 2 (5), Art. IX-C245 Sec. 5 (2), Art. VI246 Cases/Doctrines (in violation of non-establishment clause):

State sponsored Bible readings and prayers in public schools have been invalidated for violations ofSec. 5. (School District v. Schempp)

Salary payments and reimbursements for secular textbooks and other instructional materials under asystem involving close government supervision were invalidated (Lemon v. Kurtzman)243 Sec. 29 (2), Art. VI247 “entangled”248 The absoluteness of the freedom to believe carries with it the corollary that the government, while itmay look into the good faith of a person, cannot inquire into a person’s religious pretensions. Men maybelieve 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.

60

c. Test

Clear and Present Danger Test249

Compelling State Interest Test It is the test used to determine if the interestsof the State are compelling enough to justifyinfringement of religious freedom.

The state has the burden to justify any possiblesanction. This involves three (3) steps:

i. The courts should look into the sincerityof the religious belief without inquiring into thetruth of the belief.

ii. The state has to establish that its purposesare legitimate and compelling

iii. The state used the least intrusive meanspossible.250

It refers to a method of determining theconstitutional validity of a law. Under this test, thegovernment’s interest is balanced against theindividual’s constitutional right to be free of law.However, a law will be upheld only if thegovernment’s interest is strong enough.251

Conscientious Objector Test

249 supra250 Estrada vs. Escritor, 491 SCRA 1, Aug. 4, 2003251 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 adisputed law requires strict scrutiny.

61

9. Liberty of Abode and Freedom of Movement252

“The liberty of Abode and of changing the same within the limits prescribed by law shallnot be impaired.253

a. Limitations

Liberty of abode Right to travel

Upon lawful order of the court and withinthe limits prescribed by law

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

2. Any person on bail254

b. Right to travel

It may be impaired even without the court order, but the appropriate executive officer isnot assumed with arbitrary discretion to impose limitations. He can impose limits only on thebasis 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 evenmeasures taken by the executive are subject to judicial review. The constitution itself sets downthe measure of allowable impairment: necessity “in the interest of national security, public safetyor public health” as well as explicit provisions of statutory law or the Rules of Court.255

252 It may be impaired even without the court order, but the appropriate executive officer is not assumedwith arbitrary discretion to impose limitations. He can impose limits only on the basis of “nationalsecurity, 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 theexecutive are subject to judicial review. The constitution itself sets down the measure of allowableimpairment: necessity “in the interest of national security, public safety or public health” as well asexplicit provisions of statutory law or the Rules of Court. Thus, for instance, a person who is out of bailmay be prevented from leaving the country. The right to travel should not be “construed as delimiting theinherent power of the courts to use all means necessary to carry their orders into effect in criminal casespending before them. When by law jurisdiction is conferred on a Court or judicial officer, all auxiliarywrits, process and other means necessary to carry it into effect may be employed by such court or officer.253 Liberties guaranteed:

1. Liberty of Abode - freedom to choose and change one’s place of abode2. Right to Travel - freedom to travel both within the country and outside

254 A person admitted to bail may be prevented by a court from leaving the country as this is a necessaryconsequence of the function of a bail bond which is to secure a person’s appearance when needed.(Manotoc Jr. v. CA)255 Thus, for instance, a person who is out of bail may be prevented from leaving the country. The right totravel should not be “construed as delimiting the inherent power of the courts to use all means necessaryto carry their orders into effect in criminal cases pending before them. When by law jurisdiction isconferred on a court or judicial officer, all auxiliary writs, process and other means necessary to carry itinto effect may be employed by such court or officer.

62

c. Return to One’s County

Everyone has the right to leave any country, including his own and to return to hiscountry.256

No one shall be arbitrarily deprived of the right to enter his own country.257

10. Right to Information258

a. Limitations

i. National Security matters and intelligence information259

ii. Trade or Industrial Secrets and banking transactions260

iii. Criminal matters261

iv. Other Confidential information.262

Where the issue involves is whether a person facing a criminal indictment and provisionally released onbail have an unrestricted right to travel. The court ruled in the negative. It emphasized that a court hasthe power to prohibit a person admitted to bail from leaving the Philippines. This is a necessaryconsequence of the nature and function of a bail bond. The condition imposed upon petitioner to makehimself available at all times whenever the court is required his presence is a valid restrictions on his rightto travel. Thus, the trial court may validly refuse to grant the accused permission to travel abroad, even ifthe accused is out of bail. (Manotoc v. CA, 142 SCRA 149)256 Art. 13(2), Universal Declaration of Human Rights257 Art. 12(4), Covenant on Civil and Political Rights258 Information must be a matter of public concern, which embraces a broad spectrum of subjects whichthe public may want to know, either because these directly affect their lives or simply because suchmatters arouse the interest of an ordinary citizen

The right to information is a “public right”. Hence, any citizen has “standing” to assert the right toinformation259 This jurisdiction recognizes the common law holding that there is a governmental privilege againstpublic disclosure with respect to state secrets regarding military, diplomatic and other national securitymatters. Likewise, information on inter-government exchanges prior to the conclusion of treaties andexecutive agreements may be subject to reasonable safeguards for the sake of national interest;260 pursuant to the Intellectual Property Code (R.A. No. 8293,approved on June 6,1997 & other relatedlaws) and Banking Transactions (pursuant to the Secrecy of Bank Deposits Act (R.A. No. 1405, asamended)].261 such as those relating to the apprehension, the prosecution and the detention of criminals whichcourts may not inquire into prior to such arrest, detention and prosecution;262 The Ethical Standards Act (R.A. 6713, enacted on Feb.20,1989) further prohibits public officials andemployees from using or divulging “confidential or classified information officially known to them byreason of their office and not made available to the public”. (Sec, 7[c], ibid.). Other acknowledgedlimitations to information access include diplomatic correspondence, closed door Cabinet meetings andExecutive sessions of either house of Congress, as well as the internal deliberations of the Supreme Court.(Chavez v. PCGG,299 S 744)

63

b. Publication of Laws and Regulations

Mysterious pronouncements and rumored rules cannot be recognized as binding unlesstheir existence and contents are confirmed by a valid publication intended to make fulldisclosure 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, shallbe afforded the citizen, subject to such limitations as may be provided by law.263

d. Right to Information Relative to

(1) Government Contract Negotiations

The right to information contemplates inclusion of negotiations leading to theconsummation of the transaction. Otherwise, the people can never exercise the right if nocontract is consummated, or if one is consummated, it may be too late for the public to exposeits defects. However, the right only affords access to records, documents and papers, whichmeans the opportunity to inspect and copy them at his expense. The exercise is also subject toreasonable regulations to protect the integrity of public records and to minimize disruption ofgovernment operations.264

(2) Diplomatic Negotiations

Recognized as privileged in this jurisdiction. It bears emphasis, however, that suchprivilege is only presumptive. For as Senate v. Ermita holds, recognizing a type of information asprivileged does not mean that it will be considered privileged in all instances. Only after aconsideration of the context in which the claim is made may it be determined if there is a public

263 Art. III, Sec. 7The 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, whileaccess to official records may not be prohibited, it certainly may be regulated. The regulation can comeeither 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 themanner in which persons desiring to inspect, examine or copy the record may exercise their rights. Thequestion 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 tokeep in mind that the two sentences of Sec.7 guarantee only one general right, that is, the right toinformation on matters of public concern. The right of access to official record is given as animplementation of the right to information. Thus, the right to information on matters of public concern isboth the purpose and the limit of the right of access to public documents. Thus, too, regulatory discretionmust include both authority to determine the manner of access to them.264 Chavez vs. PEA and Amari, G.R. No. 133250, July 9, 2002

64

interest that calls for the disclosure of the desired information, strong enough to overcome itstraditionally privileged status.265

11. Right of Association

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

It shall not be impaired without due process of law.266

12. Eminent Domain267

a. Concept

This is also known as the power of expropriation, it is described as the highest and mostexact idea of property remaining in the government that may be acquired for some publicpurpose 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 offorbearance or accommodation. It does not matter whether the direct use of the expropriatedproperty by the public be for free or for a fee. Any member of the general public, as such, candemand 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 theirindirect advantage or benefit.

c. Just Compensation

(1) Determination

The full and fair equivalent of the property taken; it is the fair market value of theproperty, to which must be added the consequential damages, if any, minus the consequentialbenefits, if any, but in no case shall the consequential benefits exceed the consequentialdamages.268

265 Akbayan, et al. vs. Thomas Aquino, et al., G.R. No. 170516, July 16, 2008266 Also guarantees the right not to join an association.267 It is well settled that eminent domain is an inherent power of the State that need not be granted evenby the fundamental law. Se. 9, Art. III of the Constitution, in mandating that private property shall not betaken without just compensation, merely imposes a limit on the government’s exercise of this power andprovides a measure of protection to the individual’s right to property. An ejectment suit should notordinarily prevail over the State’s power of eminent domain. (Republic v. Tagle, G.R. No. 129079,December 2, 1998)

65

(2) Effect of Delay

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

d. Abandonment of Intended Use and Right of Repurchase

The property owner’s right to repurchase the property depends upon the character ofthe title acquired by the expropriator, i.e., if land is expropriated for a particular purpose withthe condition that when that purpose is ended or abandoned, the property shall revert to theformer owner, then the former owner can re-acquire the property. In this case, the terms of thejudgment in the expropriation case were very clear and unequivocal, granting title to the lot infee simple to the Republic. No condition on the right to repurchase was imposed.269

e. Miscellaneous Application

Private property shall not be taken for public use without just compensation.270

The State may, in the interest of national welfare or defense, establish and operate vitalindustries and, upon payment of just compensation, transfer to public ownership utilities andother private enterprises to be operated by the Government.271

The State shall, by law, undertake an agrarian reform program founded on the right offarmers and regular farm workers, who are landless, to own directly or collectively the lands theytill 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 tosuch priorities and retention limits as the Congress may prescribe, taking into accountecological, developmental, or equity considerations, and subject to the payment of justcompensation. In determining retention limits, the State shall respect the right of smalllandowners. The State shall further provide incentives for voluntary land- sharing.272

The State shall, by law, and for the common good, undertake, in cooperation with theprivate sector, a continuing program of urban land reform and housing which will makeavailable at affordable cost decent housing and basic services to underprivileged and homelesscitizens in urban centers and resettlement areas. It shall also promote adequate employmentopportunities to such citizens. In the implementation of such program the State shall respect theright of small property owners.273

268 The ascertainment of what constitutes just compensation for property taken in eminent domain casesis a judicial prerogative, and PD 76, which fixes payment on the basis of the assessment by the assessor orthe declared valuation by the owner, is unconstitutional. (EPZA v. Dulay, 148 SCRA 305)269 Mactan-Cebu International Airport Authority vs. Court of Appeals, G.R. No. 139495, November 27, 2000270 Art. III, Sec. 9271 Art. XII, Sec. 18272 Art. XIII, Secs. 4 & 9273 Sec. 9

66

13. Contract Clause

No franchise, certificate, or any other form of authorization for the operation of a publicutility shall be granted except to citizens of the Philippines or to corporations or associationsorganized under the laws of the Philippines, at least sixty per centum of whose capital is ownedby such citizens; nor shall such franchise, certificate, or authorization be exclusive in characteror for a longer period than fifty years. Neither shall any such franchise or right be grantedexcept under the condition that it shall be subject to amendment, alteration, or repeal by theCongress when the common good so requires. The State shall encourage equity participation inpublic utilities by the general public. The participation of foreign investors in the governingbody 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 citizensof the Philippines.274

a. Contemporary Application of the Contract Clause

The contract clause protects public contracts, including onerous franchises andprivileges 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 orwithout a reservation clause, franchises are subject to alterations through a reasonable exerciseof the police power. They are also subject to alterations by the power to tax which like policepower, 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 notbe denied to any person by reason of poverty.275

15. Rights of Suspects276

i. Right to Remain Silent277

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 ofone278

274 Sec. 11275 Ibid.276 Art. III, Sec. 12277 Under the right against self-incrimination in Sec. 17, only an accused has the absolute right to remainsilent. A person who is not an accused may assume the stance of silence only when asked an incriminatingquestion. Under Sec. 12, however, a person under investigation has the right to refuse to answer anyquestion. His silence, moreover, may not be used against him.278 RA 7438, Sec. 2(a) provides that “…. Any person under arrested, detained or under custodialinvestigation shall be at all times be assisted by counsel.

67

iv. Right to be informed of such rights279

a. Availability

Available only “under custodial investigation” for the commission of an offense.”280

b. Requisites

1. The person in custody must be informed at the outset in clear and unequivocal termsthat he has a right to remain silent.

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

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

Where the court ruled that the right to counsel is intended to preclude the slightest coercion or wouldlead the accused to admit false. The lawyer, however, should never prevent an accused from freely andvoluntarily telling the truth. (People vs. Enanoria)

Where the court ruled that the Constitution requires that counsel be independent. Obviously, he cannotbe a special counsel, public or private prosecutor, counsel of the police, or a municipal attorney whoseinterest 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. Theconstitutional requirement is satisfied when a counsel is engaged by acting on behalf of the person underinvestigation or appointed by the court upon petition by said persons or by someone on his behalf.279 The right guaranteed here is more than what is shown in television shows where the police routinelyreads 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 remainsilent and to counsel, it must be presumed to contemplate the transmission of a meaningful informationrather than just the ceremonial and perfunctory recitation of an abstract constitutional principle. As arule, therefore, it would not be sufficient for a police officer just to repeat to the person underinvestigation the provisions of the Constitution. He is not only duty-bound to tell the person the rights towhich 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 correlativeobligation on the part of the police investigator to explain, and contemplates an effective communicationthat results in understanding what is conveyed. Short of this, there is denial of the right, as it cannot thentruly be said that the person has been informed of his rights.280 Jurisprudence under the 1987 Constitution has consistently held the stricter view, that the rights beginto be available only when the person is already in custody. As Justice Regalado emphasized in People VMarra, 236 S 565:

“Custodial investigation involves any questioning initiated by law enforcement officers after a personhas been taken into custody or otherwise deprived of his freedom of action in any significant way. It isonly after the investigation ceases to be a general inquiry into an unsolved crime and begins to focus on aparticular suspect, the suspect is taken into custody, and the police carries out a process of interrogationsthat 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 whichdefines “moment of invitation” as start of custodial investigation.

R.A. 7438, “Custodial investigation” shall include the practice of issuing an “invitation” to a person whois investigated in connection with an offense he is suspected to have committed, without prejudice to theliability of the “inviting” officer for any violation of law.

68

4. He should be warned that not only has he the right to consult with a lawyer but alsothat 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 ceaseuntil an attorney is present.

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

c. Waiver

These rights cannot be waived except in writing and in the presence of his counsel.281

16. Rights of the Accused282

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. Bail283

All persons in custody shall be admitted to bail as a matter of right, with sufficientsureties, 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 perpetuaor life imprisonment.284

281 Art. III, Section 12 (1), last sentenceThe 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 thepresence of counsel as mandated by Art. III, Section 12 of the 1987 Constitution and the pertinentprovisions 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, itis inadmissible in evidence regardless of the absence of coercion, or even if it was voluntary given (Peoplevs. Camat, et al., G.R. No. 112262, April 2, 19960). This refers to custodial investigation only.282 Ibid, Sec. 14283 The security given for the release of a person in custody of law, furnished by him or a bondsman, toguarantee his appearance before any court as required under conditions specified under the rules ofcourt. (see Sec. 1, Rule 114, Revised Rules of Criminal Procedure).

69

Upon conviction by the RTC of an offense not punishable by death, reclusion perpetua, orlife imprisonment, the court, on application, may admit the accused to bail.

The court, in its discretion, may allow the accused to continue on provisional libertyafter 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 20years, the accused shall be denied bail, or his bail previously granted shall be cancelled, uponshowing by the prosecution, with notice to the accused, under certain circumstances.285

No person, regardless of the stage of the criminal prosecution, shall be admitted to bailif:

a. charged with a capital offense, or an offense punishable by reclusion perpetua or lifeimprisonment; and

b. evidence of guilt is strong.286

c. Presumption of Innocence

In all criminal prosecutions, the accused shall be presumed innocent until the contrary isproved287 xxx

Every circumstance favoring the innocence of the accused must be taken into account.288

284 Rule 114, Sec. 4, RoC285 (a) that the accused is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crimeaggravated by the circumstance of reiteracion;

(b) that the accused is found to have previously escaped from legal confinement, evaded sentence, orhas violated the conditions of his bail without valid justification;

(c) that the accused committed the offense while on probation, parole, or under conditional pardon;(d) that the circumstances of the accused or his case 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)286 Ibid, Sec. 7287 Se. 14 (2), Art. III288 The proof against him must survive the test of reason; the strongest suspicion must not be permittedto sway judgment. (People v. Austria, 195 SCRA 700)

70

d. Right to be Heard

Three (3) specific rights:

1. The right to present evidence289 and to be present at the trial,290

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 Counsel291

The accused is amply accorded legal assistance extended by a counsel who commitshimself to the cause of the defense and acts accordingly; an efficient and truly decisive legalassistance, and not simply a perfunctory representation.292

f. Right to be Informed

1. To furnish the accused with such a description of the charge against him as willenable him to make his defense

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

3. To inform the court of the facts alleged so that it may decide whether theyare sufficient in law to support a conviction, if one should be had.293

Description, not designation of the offense, iscontrolling. 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.

289 The right to present evidence includes the right to testify in one’s favor and the right to be given timeto call witnesses. If accused of two offenses, he is entitle to trial of each case, and its error for the court toconsider in one case the evidence adduced against him in another. The substantial rights of the accusedshould not be impaired because of his counsel’s anxiousness to have him promptly acquitted.290 An important facet of the right to be heard is the right to be present at the trial. “In all criminalprosecutions the accused has an absolute right to be personally present during the entire proceedingsfrom arraignment to sentence if he so desires.” It has in fact been held that, because of the new provisionallowing trial in absentia, the right of the accused to be present may be waived totally except when hispresence is needed for purposes of identification.291 Right to counsel during the trial is not subject to waiver (Flores v. Ruiz, 90 SCRA 428).292 People v. Bermas, G.R. No. 120420, April 21, 1999293 US v. Karelsen G.R. No. 1376, Jan. 21, 1904

71

g. Right to Speedy, Impartial and Public Trial

Speedy Impartial Public

Free from vexatious,capricious and oppressivedelays;

Accused entitled to coldneutrality of an impartialjudge.

To prevent possible abuseswhich may be committedagainst the accused.

h. Right of Confrontation294

Closely connected with and equally essential as the right to be heard is the right “to meetthe witness face to face” or as Rule 115, Sec. 1(f) of the New Rules of Court expresses it, “toconfront 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 bycross-examination,

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

i. Compulsory Process

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

294 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

72

j. Trials in Absentia295

Three (3) conditions must concur:

1. Accused has been arraigned296

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

3. His failure to appear is unjustified

17. Writ of Habeas Corpus297

A writ issued by court directed to person detaining another, commanding him toproduce the body of the prisoner at designated time and place, with the day and cause of hiscapture and detention, to do, to submit to, and to receive whatever court or judge awarding writshall consider in his behalf.298

18. Writ of Amparo299

A remedy available to any person whose right to life, liberty and security is violated orthreatened with violation by an unlawful act or omission of a public official or employee, or of aprivate individual or entity. The writ shall cover extralegal killings and enforced disappearance orthreats thereof.

295 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 opencourt after his arraignment that he is the person named as the defendant in the case on trial. Reason forrequiring the presence of the accused, despite his waiver, is, if allowed to be absent in all the stages of theproceeding without giving the People’s witnesses the opportunity to identify him in court, he may in hisdefense say that he was never identified as the person charged in the information and therefore, isentitled to acquittal.” Thus, for an accused to be excused from attending trial, it is not enough that hevaguely agrees to be identified by witnesses in his absence. He must unqualifiedly admit that every time awitness mentions a name by which he is known, the witness is to be understood as referring to him.296 The presence of the accused at arraignment is an absolute requisite for any trial to proceed, the reasonbeing that it is at arraignment that the accused is informed of the nature and cause of the accusationagainst him and it is then that the trial court acquires jurisdiction over the person297 Habeas corpus lies only where the restraint of a person’s liberty has been judicially adjudged to beillegal or unlawful (In Re: Petition for Habeas Corpus of Wilfredo S. Sumulong-Torres, 251 SCRA 709).298 Nachura, Reviewer in Political Law, p. 135299 It is an effective and inexpensive instrument for the protection of constitutional rights (Azcuna, TheWrit of Amparo: A Remedy to Enforce Fundamental Rights, 37 Ateneo L.J. 15 (1993).

73

18. Self-Incrimination Clause

No person shall be compelled to be a witness against himself.300

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 onlyby accused but by a witness to whom an incriminating question is addressed.

(1) Foreign Laws

b. Application

Applies only to testimonial compulsion301 and production of documents, papers andchattels in court except when books of account are to be examined in exercise of power oftaxation and police power.

c. Immunity Statutes

Transactional Immunity302 Use and Fruit Immunity

The testimony of any person or whosepossession of documents or other evidencenecessary or convenient to determine thetruth in any investigation conducted isimmune from criminal prosecution for anoffense to which such compelled testimonyrelates.

Prohibits the use of a witness’ compelledtestimony and its fruits in any manner inconnection with the criminal prosecution ofthe witness.303

300 Sec. 17301 The Kernel of the right is not against all compulsion but testimonial compulsion only; i.e. extractingfrom the lips of the accused an admission of his guilt. Hence, a person may be compelled to submit tofingerprinting, photographing and paraffin testing.302 Art. XIII, Sec. 18 (8)303 Galman v. Pamaran, 138 SCRA 274

74

19. Involuntary Servitude and Political Prisoners

Involuntary Servitude General Rule: No involuntary Servitudeshall exist.

Except:

a. as punishment for a crime whereof onehas been duly convicted304

b. service in defense of the state305

c. naval enlistment306

d. posse comitatus307

e. return to work order in industriesaffected with public interest308 and

f. patria potestas309

Political Prisoners No person shall be detained by reason ofhis political beliefs or aspirations.310

20. Excessive Fines and Cruel and Inhuman Punishments311

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.312

304 Art. III, Sec. 18(2)305 Art. II, Sec 4306 Robertson v. Baldwin, 165 US 275307 US v. Pompeya, 31 Phil. 245308 Kaisahan ng Mangagawa sa Kahoy v. Gotamco Sawmills, G.R. No. L-1573. March 29, 1948309 Art. 211, par.(2), FC310 Art. III, Sec. 18311 id, Sec. 19312 id, Sec. 20

Coverage:1. Debt – any civil obligation arising from a contract.

75

22. Double Jeopardy313

a. Requisites314

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 otherwiseterminated without his express consent315

b. Motions for Reconsideration and Appeals

Motions for Reconsideration Appeals

1. New evidence has been discoveredwhich materially affects the decisionrendered.

2. The decision is not supported by theevidence on record, or errors of law orirregularities have been committed which

are prejudicial to the interest of therespondent.

The rule on double jeopardy prohibits thestate from appealing or filing a petition forreview of a judgment of acquittal that wasbased on the merits of the case. Certiorariwill issue only to correct errors ofjurisdiction, not errors of procedure ormistakes in the findings or conclusions ofthe lower court.316

The prosecution can appeal if the accusedwaived or is estopped from invoking his right.317

2. Poll Tax – a specific sum levied upon any person belonging to a certain class without regard toproperty 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 validlypunished with imprisonment.313 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 necessarilyincludes 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 baranother prosecution for the same act.314 With the presence of the requisites the accused cannot be prosecuted anew for an identical offense orfor any attempt to commit the same or frustration thereof or for any offense which necessarily includedin the offense charged in the original complaint or information315 People v. Ylagan, 58 Phil 851316 PP vs. CA and Maquiling, June 21, 1999317 PP vs. Obsania, 23 SCRA 1249

76

Appeal from the order of dismissal by thelower court is not foreclosed by the ruleon double jeopardy where the order ofdismissal was issued before arraignment.318

If the accused appeals his conviction, hewaives his right to plead double jeopardy.The whole case will be open to review bythe appellate court. Such court may evenincrease the penalties imposed on theaccused 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 ofthe accused to a speedy trial.

23. Ex Post Facto Laws and Bills of Attainder

Ex post facto law319 Bills of Attainder

a. law making an act criminal which was notbefore its passage;

b. law aggravating penalty for crimecommitted before passage;

c. law inflicting greater or more severepenalty;

d. law altering legal rules of evidence andreceive less or different testimony than lawrequired at time of commission, in order toconvict accused;

e. law assuming to regulate civil rights andremedies only, in effect imposes a penalty;

Legislative act that inflicts punishmentwithout trial; legislative declaration of guilt.

318 Martinez v. CA, 237 SCRA 575319 Characteristics:

1. refers to criminal matters;2. retroactive; and3. prejudice the accused.

77

f. of deprivation of right for somethingwhich when done was lawful;

g. law depriving accused of some lawfulprotection to which he had been entitled,such a protection of a former convictionor acquittal, or a proclamation of amnesty.

78

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; 320

c. Those who are naturalized in accordance with law;321

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

ii. jus soli;

b. By naturalization;

c. By marriage

320 before Tio Tiam v. Republic (25 April 1957, G.R. No. L-9602)321 Act 2927

79

3. Naturalization and Denaturalization

Naturalization322

Qualifications Disqualifications

a. not less than 18 years of age on date ofhearing of petition;323

b. resided in the Philippines for not less than10 years; may be reduced to 5 years, if:

1. honorably held office in the Philippines;

2. established new industry or introduced auseful invention;

3. married to a Filipino woman;

4. engaged as teacher in Philippinepublic or private school not established forexclusive instruction to particular nationalityor race, or in any of branches of educationor industry for a period of not less than 2years; and

5. born in the Philippines;

6. character:

a. good moral character;

b. believes in the Constitution;

c. conducted himself in anirreproachable conduct during his stay inthe Philippines;

c. Own real estate in the Philippines notless than P5,000 in value; or have some

a. Opposed to organized government oraffiliated with any association or group ofpersons who uphold and teach doctrinesopposing all organized governments;

b. Defending or teaching necessity orpropriety of violence, personal assault orassassination for the success or

predominance of their ideas;

c. Polygamists or believers in polygamy;

d. Suffering from mental alienation orincurable contagious disease;

e. Convicted of crime involving moralturpitude;

f. Who, during residence in thePhilippines, have not mingled socially withFilipinos, or not evinced sincere desire tolearn and embrace customs, traditions andideals of Filipinos;

g. Citizens or subjects of nations withwhom the Philippines is at war, duringthe period of such war;

h. Citizens or subjects of foreign countrywhose laws do not grant Filipinos rightto become naturalized citizens or

subjects thereof.

322 Declaration of Intention – must be filed with the Office of the Solicitor General one (1) year beforefiling 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.

323 as amended by R.A. 6809

80

lucrative trade, profession or lawfuloccupation that can support himself andhis family;

d. Speak and write English or Filipino andany principal Philippine dialects;324 and

e. Enrolled minor children in any public orprivate school recognized by governmentwhere Philippine history, government andcivics are taught as part of curriculum, duringthe entire period of residence prior to hearingof petition.

Effects of Naturalization:

On the wife Vests citizenship on wife who might herselfbe lawfully naturalized; She need not proveher qualifications but only that she isnot disqualified.325

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

2. Born abroad

If born before the naturalization of theFather:

(a) residing in RP at the time ofnaturalization – automatically becomescitizen;

(b) not residing in RP at the time ofnaturalization – considered citizen only

during minority, unless begins to residepermanently in the Philippines;

3. If born outside the Philippines afterparents’ naturalization considered Filipino,provided registered as such before any

324 as amended by Sec. 6, Art. XIV325 Moy Ya Lim Yao v. Comm. of Immigration, 41 SCRA 292

81

Philippine consulate within 1 year afterattaining majority age and takes oathof allegiance.

Denaturalization

Grounds Effects

1. Naturalization certificate obtainedfraudulently or illegally;

2. If, within 5 years, he returns to his nativecountry or to some foreign country andestablishes residence therein;

3. Naturalization obtained through invaliddeclaration of intention;

4. Minor children failed to graduate throughthe fault of the parents either by neglectingsupport or by transferring them to anotherschool; and

5. Allowing himself to be used as dummy.

1. If ground affects intrinsic validity ofproceedings, denaturalization shall divestwife and children of their derivativenaturalization; and

2. If the ground is personal, the wife andchildren shall retain citizenship.

4. Dual citizenship and dual allegiance

Dual citizenship Dual allegiance

Arises when, as a result ofconcurrent application of the different lawsof two or more states, a person issimultaneously considered a national bysaid states.

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

Involuntary Result of an individual’s volition

82

5. Loss and re-acquisition of Philippine citizenship

Loss of Philippine Citizenship:326 Reacquisition of Philippine Citizenship:

a. Naturalization in a foreign country;

b. Express renunciation of citizenship327

c. Subscribing to an oath of allegiance toconstitution or foreign laws upon attainingof 21 years of age;328

d. Rendering service to or acceptingcommission in the armed forces of aforeign country;

e. Cancellation of certificate ofnaturalization;

f. Having been declared by final judgmenta deserter of Philippines Armed Forcesin times of war.329

a. By naturalization330

b. By repatriation331

c. By direct act of Congress

326 C.A. 63327 Expatriation

The mere application or possession of an alien certificate of registration does not amount torenunciation (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

328 Citizens may not divest citizenship when Philippines is at war.329 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; and3. finding of his citizenship is affirmed by the Supreme Court.

330 supra331 Repatriation shall be effected by taking the necessary oath of allegiance to the Republic of thePhilippines and registration in the proper civil registry and in the Bureau of Immigration. The Bureau ofImmigration shall thereupon cancel the pertinent alien certificate of registration and issue the certificateof 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 personswho uphold and teach doctrines opposing organized government;

83

6. Natural-born citizens and public office

Natural Born Citizens:332 The following must be must be natural-borncitizens:

a. Citizens of the Philippines from birthwithout having to perform any act to acquireor perfect their Philippine citizenship;

b. Those born before January 17, 1973 ofFilipino mothers, who elect Philippinecitizenship upon reaching the age of majority

a. President;333

b. Vice President;334

c. Members of Congress;335

d. Justices of the Supreme Court and lowercollegiate courts;336

e. Ombudsman and his deputies;337

f. Constitutional Commissions;338

g. Members of the governing board of theCentral Monetary Authority;339

h. Chairman and members of theCommission of Human Rights.340

b. Person defending or teaching the necessity or propriety of violence, personal assault, or associationfor the predominance of their ideas;

c. Person convicted of crimes involving moral turpitude: ord. Person suffering from mental alienation or incurable contagious diseases.

332 Sec. 2, Art. IV333 Sec.2, Art. VII334 Sec.3, id.335 Sec.3 & 6, Art. VI336 Sec. 7(1), Art. VIII337 Sec.8, Art.XI338 Secs.1(1) of Arts. IX-B, IX-C, and IX-D339 Sec.20, Art. XII340 Sec.17(2), Art.XIII

84

I. Law on Public Officers

1. General Principles

Public office The right, authority or duty, created and conferred by law, bywhich for a given period, either fixed by law or enduring atthe pleasure of the creating power, an individual isinvested with some sovereign power of government to beexercised 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, popularelection or appointment by competent authority, shall takepart in the performance of public functions in theGovernment of the Philippine Islands, or shall perform insaid Government or in any of its branches, public dutiesas an employee, agent or subordinate official, of anyrank or class shall be deemed to be a public officer.341

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.342

Characteristics of publicoffice

a. Public office is a public trust created in the interest andfor the benefit of the public.

b. There is no such thing as vested interest or an estate inan office or even an absolute right to hold it.

c. Public office is personal to the incumbent thereof orappointee thereto.

.

341 Art. 203, RPC342Sec. 2, R.A. 3019 (Anti-Graft and Corrupt Practices Act)

85

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.343

3. Modes and Kinds of Appointment

Permanent Extended to a person possessing the requisite qualifications,including the eligibility required for the position, and thusprotected by the constitutional guaranty of security oftenure.

Temporary Extended to one who may not possess the requisitequalifications or eligibility required by law for the position,and is revocable at will, without the necessity of just cause ora valid investigation.344

Acting Appointment The appointee may not possess the required qualities or theeligibility required by law for the position, and is revocableat will without the necessity of just cause and validinvestigation.345

Temporary Appointment forFixed Period

The appointment may be revoked only at the expiration ofthe period or, if revocation is made before such expiration,the same has to be for a valid and just cause.346

Provisional appointment One issued upon the authorization by CSC to a person whohas not qualified in an appropriate exam but otherwisemeets the requirement for appointment to a regular positionwhenever such vacancy occurs and filling it is necessary inthe interest of service and there is no appropriate register of

343 Preclaro v. Sandiganbayan, G.R. No. 111091, Aug. 21, 1995344 The acceptance by the petitioner of a temporary appointment resulted in the termination of officialrelationship 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 factoconvert the temporary appointment into a permanent one; a new appointment is necessary (Province ofCamarines Sur v. CA)345 Marahomsan v. Alonto346 Ambas v. Buenasedo

86

eligible employees at the time of the appointment.347

Regular One made by the President while Congress is in sessionafter the nomination is confirmed by the COA andcontinues until the end of the term.

Ad-interim One made by while Congress is not in session, before theconfirmation by the COA, is immediately effective andceases to be valid if disapproved or by passed by the COAupon the next adjournment of Congress

4. Eligibility and Qualification348 Requirements

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

Qualification This refers to the act which a person, before enteringupon the performance of his duties, is by law requiredto do such as the taking, and often, subscribing andfiling of an official oath, and in some cases, the givingof an official bond.

It may refer to:

a. Endowments, qualities, or attributes which makean individual eligible for public office.349

b. The act of entering into the performance of thefunctions of a public office.350

347 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 forappointment to a regular position, whenever a vacancy occurs and filling thereof is necessary in theinterest of the service and there is no appropriate register of eligible at the time of the appointment.348 “Loss of any of the qualifications during incumbency will be a ground for termination” (Frivaldo v.COMELEC, 174 SCRA 245)349 Qualifications (endowments) must be possessed by the individual at the time of appointment orelection and continuously for as the official relationship continuous.

Loss of any of the qualifications during incumbency will be a ground for termination350 e.g. taking an official oath or giving an official bond.

87

General qualifications:351 a. Citizenship352

b. Residence

c. Age

d. Educational Attainment

e. Civil Service353

5. Disabilities and Inhibitions of Public Officers

a) The President, Vice-President, the Members of the Cabinet, and their deputies orassistants shall not, unless otherwise provided in the Constitution, hold any other office oremployment during their tenure.354

b) No Senator or Member of the House of Representatives may old any other office oremployment in the Government, or any subdivision, agency, or instrumentality thereof,including government-owned or controlled corporations or their subsidiaries, during his termfor which he was elected.355

c) The Members of the Supreme Court and of other courts established by law shall notbe designated to any agency performing quasi-judicial or administrative functions.356

d) No Member of a Constitutional Commission shall, during his tenure, hold any otheroffice or employment357 the same disqualification applies to the Ombudsman and hisDeputies.358

e) The Ombudsman and his Deputies shall not be qualified to run for any office in theelection immediately succeeding their cessation from office.359

Failure of an officer to perform an act required by law (e.g. oath) could affect the officer’s title to thegiven office. He could become merely a de facto officer. But prolonged failure or refusal to take an oath oroffice could result in the forfeiture of the office351 Qualification standard-expresses the minimum requirements for a class in position in terms ofeducation, training and expense, civil service eligibility, physical fitness and other requirements forsuccessful performance.352 A voluntary change of citizenship or a change thereof by operation of law disqualifies him to continueholding the civil service position to which he qualified and had been appointed.353 Temporary appointments of non-eligible may be made in the absence of eligible actually andimmediately available.354 Art. VII, Sec. 13355 Art. VI, Sec. 13356 Art. XI, Sec. 8357 Art. IX-A, Sec. 2358 Art. IX, Sec. 8359 Art. XI, Sec. 11

88

f) Members of Constitutional Commissions, the Ombudsman and his Deputies mustnot have been candidates for any elective position in the election immediately preceding theirappointment.360

g) Members of Constitutional Commissions, the Ombudsman and his Deputies areappointed to a term of seven (7) years, without reappointment.361

The spouse and relatives by consanguinity or affinity within the fourth civil degree of thePresident shall not during his tenure be appointed as Members of the ConstitutionalCommissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmenor heads of bureaus or offices, including government-owned or controlled corporations.362

6. Powers and Duties of Public Officers

Powers

Ministerial Discretionary

Discharge is imperative and it must be doneby the public officer

Public officer may do whichever way hewants provided it is in accordance with lawand not whimsical

Can be compelled by mandamus Cannot be compelled by mandamus exceptwhen there is grave abuse of discretion

Can be delegated Cannot be delegated unless otherwiseprovided by law

Duties

General/ Constitutional Specific

a. To be accountable to the people; to servethem with utmost responsibility, integrity,loyalty and efficiency, to act with patriotismand justice; and to lead modest lives.363

b. To submit a declaration under oath of hisassets, liabilities and net worth upon the

a. The Solicitor general’s duty to representthe government, its offices andinstrumentalities and its officials andagents except in criminal and civil casesfor damages arising from felony- ismandatory. Although he has thediscretion in choosing whether or not

360 Art. IX-B, Sec. 1, Art. IX-C; Art. IX-D, Sec. 1; Art. XI, Sec. 8361 Art. IX-B, Sec. 1(2); Art. IX-D, Sec. 1(2); Art. XI, Sec. 11362 Art. VII Sec. 13363 Art. 11, Sec.1

89

assumption of office and as often thereafteras maybe required by law.364

c. To owe the state and the Constitutionallegiance at all times.365

to prosecute a case or even withdraw therefrom such discretion must be exercisedwithin the parameters set by law and withthe best interest of the state as the ultimategoal.

b. The government is not estoppedfrom questioning the act of its officials,more so if they are erroneous or irregular.

7. Rights of Public Officers366

a. Right to Office367

b. Right of Salary368

c. Right of Preference in Promotion

d. Right to Vacation and Sick Leave369

e. Right to Maternity, Paternity Leave

f. Right to Retirement Pay370

g. Right to pension and gratuity

364 Id., Sec. 17365 Id., Sec. 18366 When may Public officer claim legal right to his office?

a) File a Quo Warranto – both elective and appointiveb) File Election Protest – on elective officer by the losing candidate.

367 the just and legal claim to exercise the powers and responsibilities of the public officer.368 a personal compensation to be paid to him for services, and it is generally a fixed annual or periodicalpayment depending on the time and not on the amount of services he may render. It is given to higherdegree of employment.

Where there is a de jure officer, a de facto officer who, in good faith, has possession of the office andhas discharged the duties thereof, is entitled to salary.

The salary of a public officer cannot be subject to garnishment, attachment or order of execution beseized 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 thetitle.369 Under Office of President Memo Circ. No. 54 (3/24/88), government officers or employees are notentitled to commutation of all leave credits without limitation and regardless of the period when thecredits were earned, provided the claimant was in the service as of January 9, 1986.370 Retirement is compulsory for a member who has reached the age of sixty-five (65) years with at leastfifteen (15) years of service. If he has less than fifteen (15) years of service, he shall be allowed tocontinue in the service to complete the fifteen (15) years, “to avail of the old-age pension benefit.(Profeta v. Drilon)

90

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 fidedischarge 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-Organization371

8. Liabilities of Public Officers

General Rule on Liability:

A public officer is not liable for injuries by another as a consequence of official actsdone 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 ornegligence.372

a. Preventive Suspension373 and Back Salaries

The proper disciplining authority may preventively suspend any subordinate officerunder his authority pending an investigation if the charge against such officer involvesdishonesty, oppression or grave misconduct, or neglect in the performance of a duty, or if thereare reasons to believe that the respondent is guilty of the charges which would warrant removalfrom the service.

371 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)372 Administrative Code of 1987; Sec. 38 (1), Chapter 9, Book 1373 Preventive Suspension - a precautionary measure so that an employee who is formally charged of anoffense 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 stepin an administrative investigation (Lastimosa v. Vasquez, 243 SCRA 497)

The period of preventive suspension cannot be deducted from whatever penalty may be imposed uponthe 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.

91

Back salaries are also payable to an officer illegally dismissed or otherwise unjustlydeprived of his office the right to recover accruing from the date of deprivation. The claim forback salaries must be coupled with a claim for reinstatement and subject to the prescriptiveperiod of one (1) year.374

b. Illegal Dismissal, Reinstatement and Back Salaries

The public officer shall not be entitled to salaries during the period of preventivesuspension; but upon exoneration and subsequent reinstatement, he shall be paid full salariesand emoluments accruing during the period of suspension. Note that in order to be entitled toback salaries, the employee suspended must be exonerated of the charges against him.375

9. Immunity376 of Public Officers

It is well settled as a general rule that public officers of the government, in theperformance of their public functions, are not liable to third persons, either for themisfeasances or positive wrongs, or for the nonfeasances, negligences, or omissions ofduty of their official subordinates.377

The immunity of public officers from liability for the nonfeasances, negligence oromissons of duty of their official subordinates and even for the latter’s misfeasances orpositive wrongs rests upon obvious considerations of public policy, the necessities of thepublic service and the perplexities and embarrassments of a contrary doctrine.378

This doctrine is applicable only whenever a public officer is in the performanceof 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 Officers379

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

374 Cruz, Law on Public Officers, p. 126375 Bangalisan v. Court of Appeals, 276 SCRA 619376 An exemption that a person or entity enjoys from the normal operation of the law such as alegal duty or liability, either criminal or civil.377 McCarthy vs. Aldanese, G.R. No. L‐19715, March 5, 1923378 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, 2004379 Elements

1. A validly existing public office.2. Actual physical possession of said office.3. Color of title to the office

92

A de facto officer is entitled to emoluments for actual services rendered, and he cannotbe made to reimburse funds disbursed during his term of office because his acts are valid as those of a de jure officer.

11. Termination of Official Relation

a. Expiration of term or tenure380

b. Reaching the age limit381

c. Resignation382

d. Recall

e. Removal383

f. Abandonment384

g. Acceptance of an incompatible office385

380 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 shallbe regarded as termination through expiration of term, not removal. (Astraquillo v. Manglapus, 190 SCRA280)

When the constitution provides that the term of office of local elective official is three years, Congresscannot, by a law calling for delayed election, effectively reduced the term. (Osmena v. COMELEC 199 SCRA750)381 The compulsory retirement age for members of the Judiciary is seventy (70) years of age and for theother 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 rendereda minimum number of years of government service, when availed of by the public officer, will result intermination 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 servicerequirement for retirement shall be allowed only to permanent appointees in the career service who areregular members of the Government Service Insurance System (GSIS), and shall be granted for a periodnot exceeding one (1) year. The government agency concerned is vested with discretionary authority toallow or disallow extension of such service. (Toledo v. COMELEC)382 the formal renunciation or relinquishment of a public officer

Resignation must be accepted by competent authority, either expressly or impliedly (as in theappointment of a successor).

Mere tender of resignation, without acceptance by competent authority does not create a vacancy inpublic office; resignation is not complete until accepted by proper authority (Joson v. Nario, 187 SCRA453)

In the Philippines, acceptance of resignation is necessary, because Art. 238 of the Revised Penal Codepenalizes any public officer who, before the acceptance of his resignation, abandons his office to thedetriment of the public service.

If the public officer is mandated by law to hold over, the resignation, even if accepted, will not beeffective until after the appointment or election of his successor.383 entails the ouster of an incumbent before the expiration of his term.384 It is the voluntary relinquishment of an office by the holder, with the intention of terminating hispossession and control thereof.

93

h. Abolition of office386

i. Prescription of the right to office

j. Impeachment

k. Death387

l. Failure to assume elective office within six months from proclamation388

m. Conviction of a crime389

n. Filing of a certificate of candidacy.

385 Acceptance of Incompatible Office ipso facto vacates the other. There is no necessity for anyproceeding 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 Secretaryof Justice who is, by express provision of the Constitution, a member of the Judicial and Bar Council386 Except when restrained by the Constitution, Congress has the right to abolish an office, even during theterm 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

387 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 thecollegiate court who had earlier signed or registered his vote, has vacated his office, his vote isautomatically withdrawn or cancelled. (JAMIL vs. COMELEC)388 Sec. 11, B..P 881 provides: “The office of any official elected who fails or refuses to take his oath ofoffice within six months from his proclamation shall be considered vacant, unless said failure is for a causeor causes beyond his control”.389 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.

94

12. The Civil Service

a. Scope

The Civil Service embraces all branches, subdivisions, instrumentalities, and agencies ofthe government, including government-owned or controlled corporations with originalcharters.390

b. Appointments to the Civil Service

Shall be made only in accordance to merit and fitness to be determined, as far aspracticable, and except appointments to positions which are policy determining; primarilyconfidential or highly technical by competitive examination.391

390The test in determining whether a government-owned or controlled corporation is subject to the CivilService Law is the manner of its creation. Corporations created by special charters are subject to the Civilservice, while those incorporated under the Corporation Law are not. The moment that a Corporationceases 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 doesnot fall under the Civil Service (e.g. PAL, Manila Hotel).

The “Boy Scouts of the Philippines” is a government-owned or controlled corporation.391 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; andc. 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 whichpurpose 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.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

95

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 qualificationstandards, all within the exclusive jurisdiction of the CSC.392

13. Accountability of Public Officers

a. Impeachment

A national inquest into the conduct of public men.393

392 Mantala v. Salvador393 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; and6. 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 thereof2. 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 theArticles 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 tothe 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 contraryresolution.

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.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;

96

b. Ombudsman

The “champion of the citizens” and “protector of the people”

Tasked to entertain complaints addressed to him against erring public officers and takeall necessary actions thereon.394

(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, agencyor instrumentality thereof, as well as any GOCC with original charter, to perform or expediteany act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in theperformance of duties.

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

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 applyingthe-one year bar rule, the proceeding is “initiated” or begins when a verified complaint is filed andreferred to the Committee on Justice for action (Francisco, et al. vs. House of Representatives, et al. G.R.No. 160261, November 10, 2003).394The Constitution and R.A. 6770 (The Ombudsman Act of 1989) has endowed the Office of theOmbudsman 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 theexercise 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 publicservice. (Loquias v. Office of the Ombudsman, GR No. 139396, August 15, 2000)

The Ombudsman is clothed with authority to conduct preliminary investigation and prosecute allcriminal cases involving public officers and employees, not only those within the jurisdiction of theSandiganbayan but those within the jurisdiction of the regular courts as well. (Uy v. Sandiganbayan, GRNo. 105965-70, March 20, 2001).

The power to investigate also includes the power to impose preventive suspension. This is differentfrom the power to recommend suspension. The latter is a suspension as a penalty; preventive suspensionis not a penalty (Bernas, The 1987 Constitution A Reviewer-Primer, 2002. Ed., Citing, Buenesada vs.Flavier, 226 SCRA 645)

97

d. Direct the officer concerned, in any appropriate case, and subject to such limitation asmay be provided by law, to furnish it with copies of documents relating to contracts ortransactions entered into by his office involving the disbursement or use of public funds orproperties, and report any irregularity to the COA for appropriate action.

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

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

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

h. Promulgate its rules of procedure and exercise such other powers or perform suchfunction or duties as may be provided by law.395

i. The Office of the Ombudsman shall enjoy fiscal autonomy. Its approved annualappropriations shall be automatically and regularly released.396

(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..

395 Sec. 13, Art. XI396 Sec. 14, id.

98

c. Sandiganbayan397

The anti-graft court shall continue to function and exercise its jurisdiction as now andhereafter may be provided by law.

d. Ill-Gotten Wealth

The right of the State to recover properties unlawfully acquired by public officials oremployee, from them or from their nominees or transferees, shall not be barred by prescription,laches or estoppel398 but it applies only to civil actions and not to criminal cases.399

397 Original Jurisdictiona. 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 inthe government, whether in a permanent, acting or interim capacity at the time of the commission of theoffense:

(i) Officials of the Executive branch with the position of regional director or higher, or with SalaryGrade Level 27 (G27) according to R.A. 6758, specifically including:

(a) Provincial governors, vice-governors; Board members, provincial treasurers, engineers and otherprovincial department heads;

(b) City mayors, vice-mayors, city councilors; city treasurers, assessors, engineers and other citydepartment 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 publicofficials 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 in1986.2. 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 appellatejurisdiction, Provided, that jurisdiction over these petitions shall be not exclusive of the Supreme Court;and3. Exclusive Appellate Jurisdiction over final judgments, resolutions or orders of regional trial courtswhether in the exercise of their own original jurisdiction or of their appellate jurisdiction. (RA 8249)398 Art. XI, Sec. 15399 Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto, GR No.130140, October 25,1999

99

14. Term Limits

Elected local official Three (3) years starting from noon of June 30 followingthe election or such date as may be provided by law,except that of elective barangay officials, for maximumof three (3) consecutive terms in same position.400

Barangay officials Three (3) years.401

400 Sec. 43, LGC401 under R.A. No. 9164 (March 19, 2002). Further, Sec.43 (b) provides that "no local elective officialshall serve for more than three (3) consecutive terms in the same position. The Court interpretedthis section referring to all local elective officials without exclusions or exceptions. (COMELEC v.Cruz, G.R. No. 186616, 19 Nov. 2009)

100

J. Administrative Law

1. General Principles

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

2. Administrative Agencies

a. Definition

A body, other than the courts and the legislature, endowed with quasi-legislative andquasi-judicial powers for the purpose of enabling it to carry out laws entrusted to it forenforcement 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.402

2. wherein the government is seeking to carry on certain of the actual business ofgovernment.403

3. wherein the government is performing some business service for the public.404

4. wherein the government is seeking to regulate business affected with publicinterest.405

5. wherein the government is seeking under the police power to regulate business andindividuals.406

402 e.g. Bureau of Lands403 e.g. BIR404 e.g. MWSS405 e.g. LTFRB406 e.g. SEC

101

6. Wherein the government is seeking to adjust individual controversies because of astrong social policy involved.407

7. to make the government a private entity.408

3. Powers of Administrative Agencies

a. Quasi-Legislative409 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,410

b. Contingent regulation

Interpretative legislation or internal rules411

(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

407 e.g. ECC408 e.g. GSIS409 Rule Making410 e.g. Rules and Regulations Implementing the Labor Code411 e.g. BIR Circulars

Only an instruction from a higher officer to a lower officer within the same office. It has no effect of lawbecause no clear legal right which can be invoked by a third person emanates from it. It does not have tobe published to be effective.

102

b. Quasi-Judicial412 Power

Proceedings partake of nature of judicial proceedings. Administrative body grantedauthority to promulgate its own rules of procedure, provided they do not increase diminish ormodify substantive rights, and subject to the disapproval by the Supreme Court.413

(1) Administrative Due Process414

The essence of due process is simply to be heard, or as applied in administrativeproceedings, an opportunity to explain one’s side or an opportunity to seek reconsideration ofthe action or ruling complained of.415

Administrative due process is recognized to include the right to:

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

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

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

4. And a finding or decision by that tribunal supported by substantial evidence presentedat the hearing or at least ascertained in the records or disclosed to the parties.416

412 adjudicatory413 Art. VIII, Sec. 5 (5)414 Notice and hearing as the fundamental requirements of due process, are essential only when anadministrative body exercises its quasi-judicial function, but in the performance of its executive orlegislative functions, such as the issuing rules and regulations, an administrative body need not complywith 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 thecourts of justice. (UP Board of Regents v. CA, 313 SCRA 404 ) Administrative due process cannot be fullyequated 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 enoughthat the parties are given a fair and reasonable opportunity to explain their respective sides of thecontroversy and to present evidence on which a fair decision can be based. (Melendres v. COMELEC, 319SCRA 262)

The requirement of hearing is complied with as long as there is opportunity to be heard, and to submitany evidence one may have in support of his defense, and notnecessarily 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 cannotcomplain of denial of due process.(Ocampo v. Office of the Ombudsman, supra) There can be no denial ofdue process where a party had the opportunity to participate in the proceedings but failed to do so.(DBPv. CA, 302 SCRA 362; Tiomico v. CA, 304 SCRA 216)415 Arboleda v. NLRC, 303 SCRA 38

103

(2) Administrative Appeal and Review

Administrative Appeal417 Administrative review

It refers to the review by a higheragency of decisions rendered by anadministrative agency, commenced bypetition of an interested party.

A superior officer or department headmay upon his or her own volition reviewa subordinate’s decision pursuant to thepower of control, however, subject to thecaveat that a final and executory decisionis not included within the power of control,and hence can no longer be altered byadministrative review.

Pursuant to the doctrine of exhaustion of administrative remedies, before a party litigantcan seek judicial intervention, he must exhaust all means of administrative redress availableunder 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, thePresident, by himself or through the Department Secretaries,418 may affirm, modify, alter, orreverse the administrative decision of subordinate officials and employees.419

(3) Administrative Res Judicata

The doctrine of res judicata applies only to judicial or quasi-judicial proceedings and notto the exercise of purely administrative functions.420Administrative proceedings are non-litigious and summary in nature; hence, res judicata does not apply.

416Air Manila, Inc. V. Balatbat, 38 SCRA 489 and Fabella v. CA, 282 SCRA 256417 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 1987Administrative Code, which will govern primarily in the absence of a specific law applicable. Underthe 1987 Administrative Code, administrative appeals from a decision of an agency are taken to theDepartment Head.418 pursuant to the “alter ego doctrine”419 The appellate administrative agency may conduct additional hearings in the appealed case, if deemednecessary. But just like in the appellate courts, appellate administrative bodies may only pass upon errorsassigned. (Diamonon vs. DOLE, GR No. 108951, March 7, 2000)420 applies only to judicial and quasi-judicial proceedings not to exercise of administrative functions(Brillantes vs. Castro 99 Phil. 497)

104

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

Fact-Finding Power The power delegated by the legislature to an administrativeagency to determine some fact or state of things uponwhich the law makes, or intends to make, its ownaction depend, or the law may provide that it shallbecome operative only upon the contingency or somecertain fact or event, the ascertainment of which is leftto an administrative agency.421

Investigative Power The power of an administrative agency to take intoconsideration the result of its own observation andinvestigation of the matter submitted to it for decision,in connection with other evidence presented at thehearing of the case.422

Licensing Power The action of an administrative agency in granting ordenying, or in suspending or revoking a license, permit,franchise, or certificate of public convenience andnecessity.423

Rate Fixing Power It is the power usually delegated by the legislatureto administrative agencies for the latter to fix the rateswhich public utility companies may charge the public.424

421 1 Am. Jur. 2d 930‐931422 Pantranco South Express, Inc. v Board of Transportation, 191 SCRA 581,1991423 De Leon, Administrative Law, 2010424 ibid.

105

4. Judicial Recourse and Review425

Doctrine of Primary AdministrativeJurisdiction426

Judicial action of a case is deferred pending thedetermination of some issues which properly belongto an administrative body because their expertise,specializes skills, knowledge and resources arerequired for the resolution of factual and non-legalmatters. In such a case, relief must first be soughtand obtained in the administrative body concernedbefore the Court will supply the remedy. Where astatute lodges exclusive original jurisdiction in anadministrative agency, the court will refuse to takeup a case unless the agency has finally completedits proceedings.427

Doctrine of Exhaustion ofAdministrative Remedies428

Whenever there is an available administrativeremedy provided by law, no judicial recourse can bemade until all such remedies have been availed ofand exhausted. Before a party can invoke thejurisdiction of the courts of justice, he is expectedto have exhausted all means of administrativeredress afforded to him by law.

425 Requisites of judicial review of administrative action1. Administrative remedies must have been exhausted or the principle of exhaustion of administrativeremedies.2. Administrative action must have been completed or the principle of finality of administrative action.426 or preliminary resort427 The doctrine does not warrant a court to arrogate unto itself authority to resolve a controversy thejurisdiction 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 thecase pending before the court. The case is merely suspended until the issues resolvable by theadministrative body are threshed out and fully determined (Industrial enterprises, Inc v. CA, 184 SCRA426)428 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 amotion to dismiss the case. However, if no motion to dismiss is filed on this ground, there is deemed awaiver. (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 ofpowers, which enjoins upon the judiciary a becoming a policy of non-interference with matters comingprimarily within the competence of other department. The Legal reason is that the courts should not actand correct its mistakes or errors and amend its decision on a given matter and decide it properly. (Lopezv. City of Manila, 303 SCRA 448) And the practical reason is that administrative process I intended toprovide less expensive and speedier solution to disputes.

106

Doctrine of Finality ofAdministrative Action

No resort to courts will be allowed unlessadministrative action has been completed and thereis nothing left to be done in administrativestructure.

107

K. Election Law

1. Suffrage

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

2. Qualification and Disqualification of Voters

Qualifications Disqualifications

1. Filipino citizenship- it may be by birthor naturalization.

2. Age - a person may be registered as a voteralthough he is less than 18 years at the timeof registration if he will be at least 18 on theday of election.

3. Residence - at least 1 year in thePhilippines, and at least 6 months wherehe proposes to vote immediately precedingthe election. Any person who, on the daysof registration may not have been reachedthe required period of residence but who, onthe day of election shall possesssuch qualification, may register as voter.429

No literacy, property or other substantiverequirement shall be imposed on the exercise ofsuffrage.

1. Any person sentenced by the finaljudgment to suffer imprisonment for not lessthan 1 year.

2. Any person adjudged by the final judgmentof having committed

(a) any crime involving disloyalty tothe government or

(b) any crime against national securityfirearms laws.

3. Insane or incompetent persons as declaredby competent authority.

429 Any person who temporarily resides in another city municipality or country solely by reason ofoccupation, profession, employment in public or private service, educational activities, work in themilitary or naval reservations within the Philippines, service in the AFP, PNP or confinement or detentionin 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 synonymousterms. In order to acquire a new domicile by choice, there must concur (1) residence or bodily presence inthe new locality;(2) an intention to remain there; and (3) an intention to abandon the old domicile. Theresidence at the place chosen for the new domicile must be actual. (Romualdez vs. RTC, 226 SCRA 406)

108

3. Registration of Voters

The personal filing of application of registration of voters shall be conducted daily in theoffice of the Election Office during regular office hours. No registration shall, however, beconducted during the period starting 120 days before a regular election and 90 days before aspecial election.430

430 Sec. 8, R.A. 8189

109

4. Inclusion and Exclusion Proceedings431

Jurisdiction

Municipal or MetropolitanTrial Court

Regional Trial Court Supreme Court

Original andexclusive Jurisdiction

Appellate jurisdiction(5 days)432

Appellate jurisdiction overRTC on question of law(15 days)433

431 PetitionersInclusion

1. Private person whose application was disapproved by the Election Registration Board or whosename 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 municipality2. Representative of political party3. 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)

Procedure1. Petition for exclusion shall be sworn (Sec. 35 , R.A. 8189)2. Each petition shall refer only to only one precinct. (ibid.)3. Notice4. Parties to be notified

Inclusion and Exclusion – Election Registration Board –Challenged voters [Sec. 32(b), id.]

MannerNotice stating the place day and hour of hearing shall be served through any of the following means:

1. Registered mail2. Personal delivery3. 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.)

432 Sec. 33, id.433 Sec. 5(2)(e), Art. VIII; Sec. 2, Rule 45 of the RoC

110

5. Political Parties

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

A political party may refer to a local regional or national party existing and dulyregistered and accredited by the COMELEC. To acquire juridical personality, qualify foraccreditation, and to be entitled to the rights of political parties, a political party must beregistered with the COMELEC.434

a. Jurisdiction of the COMELEC over political parties

Flowing from its constitutional power to enforce and administer all laws and regulationsrelative to the conduct of the election and its power to register and regulate political parties, theCommission on Elections may resolve matters involving the ascertainment of the identity of thepolitical party and its legitimate officers.435

b. Registration

In order to acquire juridical personality as a political party, to entitle it to the benefitsand privileges granted under the Constitution and the laws, and in order to participate in theparty-list system, the group must register with the Commission on Elections by filing with theCOMELEC not later than 90 days before the election a verified petition stating its desire toparticipate in the party-list system as a national, regional, sectoral party or organization or acoalition of such parties or organizations.436

434 The following political parties cannot be registered.1. Religious sects2. Those which seeks to achieve their goals through unlawful means3. Those which refuse to adhere to the Constitution4. Those that are supported by any foreign government

Grounds for Cancellation of Registration:1. accepting financial contributions from foreign governments or their agencies; and2. failure to obtain at least 10% of votes casts in constituency where party fielded candidates.

435 Laban ng Demokratikong Pilipino vs. COMELEC, G.R. No. 161265, Feb. 24, 2004436 Sec. 3 (c), R.A. 7941

111

6. Candidacy

a. Qualifications of Candidates437

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 theday of the election, and

e. a resident of the Philippines for at leastten (10) years immediately preceding suchelection.438

1. An elective local official must be acitizen of the Philippines; a registeredvoter in the barangay, municipality, city,or province or, in the case of a member ofthe sangguniang panlalawigan, sangguniangpanlungsod, or sangguniang bayan, the districtwhere he intends to be elected; a residenttherein for at least one (1) year immediatelypreceding the day of the election; and ableto read and write Filipino or any otherlocal language or dialect.

2. Candidates for the position of governor,vice-governor, or member of thesangguniang panlalawigan, or mayor, vice-mayor or member of the sangguniangpanlungsod of highly urbanized cities mustbe at least twenty-one (21) years of ageon election day.

3. Candidates for the position of mayor orvice-mayor of independent component cities,component cities, or municipalitiesmust be at least twenty-one (21) years of ageon election day.

4. Candidates for the position of member ofthe sangguniang panlungsod or sangguniang bayanmust be at least eighteen (18) years ofage on election day.

5. Candidates for the position of punongbarangay or member of the sangguniangbarangay must be at least eighteen (18) yearsof age on election day.

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 ageon the day of the election, and

f. a resident of the Philippines for notless than 2 years immediately preceding theday of the election.

3. Congressmen – District and Party –List Representatives

a. natural-born citizen of the Philippines,

437 Qualifications prescribed by law are continuing requirements and must be possessed for the durationof the officer’s active tenure. Once any of the required qualifications is lost, his title to the office may beseasonably challenged. (Frivaldo vs. COMELEC, 174 SCRA 245 and Labor vs. COMELEC, 176 SCRA 1)438 Art. VII, Sec. 2

112

b. a registered voter,

c. able to read and write,

d. at least twenty -five ((25) of years ofage on the day of the election, and

e. except the party-list representatives,a registered voter in the district in which heshall be elected, and

f. a resident of the Philippines for notless than two (2) years immediately precedingthe day of the election.

6. Candidates for the sangguniang kabataanmust be at least fifteen (15) years of age butnot more than twenty-one (21) years of ageon election day.439

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 thePhilippines, and officers and employees in GOCCs,

shall be considered ipso facto resigned from his officeupon the filing of his certificate of candidacy. Suchresignation is irrevocable.440

Elective official No effect.

The candidate shall continue to hold office, whether heis running for the same or a different position.441

(2) Substitution of Candidates

If after the last day for the filing of certificates of candidacy, an official candidateof 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 ofcandidacy not later than mid‐day of election day to replace the candidate who died,withdrew or was disqualified.442

439 Sec.39, LGC440 Sec. 66 , OEC441 Sec. 14, Fair Elections Act expressly repealed Sec. 67 of B.P. 881442 COMELEC Reso. No. 9140

113

However, no substitution shall be allowed for any independent candidate.443

(3) Ministerial duty of COMELEC to receive certificate

Subject to its authority over nuisance candidates and its power to deny due course to orcancel a certificate of candidacy,444 the COMELEC shall have only the ministerial duty to receiveand acknowledge receipt of the certificate of candidacy.445

(4) Nuisance Candidates

They are candidates who have no bona fide intention to run for the office forwhich 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 duecourse to or cancel certificate of candidacy if shown that said certificate was filed:

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 fideintention to run for office for which certificate has been filed, and thus prevent a faithfuldetermination of true will of electorate.

(4) Petition to Deny or Cancel Certificates of Candidacy446

A verified petition seeking to deny due course or to cancel a certificate of candidacymay be filed by the person exclusively on the ground that any material representation

443 Ibid.444 Sec, 78, B.P. 881445 Sec. 76, id.

As early as in Abcede vs. Imperial, 103 Phil. 136, the Supreme Court said that the Commission has nodiscretion to give or not to give due course to a certificate of candidacy filed in due from. While theCommission may look into patent defects in the certificate, it may not go into matters not appearing ontheir face.

Accordingly, the COMELEC may not, by itself, without proper proceedings, deny due course to or cancela certificate of candidacy filed in due form. Sec. 78, B.P. 881, which treats of a petition to deny due courseto 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 theopportunity to present evidence in his behalf. (Cipriano vs. COMELEC, G.R. No. 158830, august 10, 2004.446 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]

114

contained therein as required447 is false. The petition may be filed at any time not later than25 days from the time of the filing of the certificate of candidacy and shall be decided, afterdue 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 daysfrom the last day of filing of certificates of Candidacy.448

(5) Effect of Disqualification

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

Before final judgment If for any reason a candidate is not declared by finalJudgment before an election to be disqualified and he isvoted for and receives the winning number of votes in suchelection the Court or Commission shall continue with thetrial and hearing of the action, inquiry or protest and, uponmotion of the complainant or any intervenor, may, duringthe tendency thereof, order the suspension of theproclamation of such candidate whenever the evidence ofguilt is strong.449

(6) Withdrawal of Candidates

A person who has filed a CoC may, prior to the election, withdraw the same bysubmitting to the COMELEC a written declaration under oath.450

447under Section 74 of the Omnibus Election Code448 Secs. 5 (a) and 7, R.A. 6646449 Sec. 6, id.

Sec. 6 of R.A. 6616 authorizes the continuation of proceedings for disqualification even after theelections 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 preponderanceof evidence to prove disqualification, and the criminal, which necessitates proof beyond reasonable doubtto convict.

There is no provision in RA 6646 that treats of a situation where the complaint for disqualification isfiled after the election. . . .

Second paragraph of paragraph 2 of Res. No. 2050 provides that where a complaint is filed after theelection but before proclamation, as in this case, the complaint must be dismissed as a disqualificationcase but shall be referred to the Law Department for preliminary investigation.450 Sec. 73, OEC)

There was no withdrawal of candidacy for the position of mayor where the candidate, before thedeadline for filing certificates of candidacy, personally appeared in the COMELEC office, asked for hiscertificate of candidacy and intercalated the word “vice” before the word mayor and the following day

115

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 partisanpolitical activity except during the campaign period.451

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 resources452

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

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

5. Persons granted loans in excess of P25, 000 by the government or any of itssubdivisions 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 corporations453

9. Corporations454

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 saidparty had withdrawn the nomination which withdrawal was confirmed by the candidate under oath, therewas substantial compliance with Sec. 73. His filing under oath within the statutory period of his individualcertificate for candidacy for the separate office of mayor was, in effect, a rejection of the partynomination on his behalf for the office of board member. (Ramirez vs. COMELEC, L-81150, Jan 12, 1992)451 Sec. 80, B.P. 881452 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)453 Sec. 95 , B.P. 881454 Sec. 36 (9), Corp. Code

116

c. Lawful and prohibited election propaganda

Lawful propaganda Prohibited Campaign

1. Forms

2. Pamphlets, leaflets, cards, decals, stickersand written or printed materials not morethan 8 ½ inches by 14 inches

3. Handwritten/printed letters

4. Cloth, paper or cardboard, postersmeasuring, not more than 2 feet by 3 feet 3by 8 ft. allowed in announcing at the site onthe occasion of a public meeting or rally, maybe displayed 5 days before the date of rallybut shall be removed within 24 hours aftersaid rally.

5. Paid print advertisements: ¼ page inbroadsheets and ½ pages in tabloids thrice aweek per newspaper, magazine or otherpublication during the campaign period.455

6. Broadcast Media

National Positions: 120 minutes for TV,180 minutes for radio

Local Positions: 60 minutes for TV, 90minutes for radio

7. Other forms of election propaganda notprohibited by the Omnibus Election Codeand R.A. 9006, and authorized by theCOMELEC.456

1. Public exhibition of a movie,cinematograph or documentary portrayingthe life or biography of a candidateduring campaign period.

2. Public exhibition of a movie,cinematograph or documentary portrayed byan actor or media personality who is himselfa candidate;

3. Use of airtime for campaign of a mediapractitioner who is an official of a party ora member of the campaign staff of acandidate or political party.457

455 Sec. 4, R.A. 9006456 Requirement

1. Any published or printed political matter or broadcast of election propaganda by television or radiofor or against a candidate or group of candidates to any public office shall bear and be reasonably legibleor audible words “political advertisement paid for,” followed by the true and correct name and address ofthe 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 theword “airtime for this broadcast was provided free of charge by” followed by the true and correct nameand address of the broadcast entity.

117

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 theparty – list system – P5 per voter

Political party and coalition P5 per voter in the constituency where it has candidates.458

e. Statement of contributions and expenses

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 andexpenditures in connection with election.

A candidate who withdraws his certificate of candidacy must still file a statement ofcontributions and expenditures, for the law makes no distinction.459

3. Print, broadcast or outdoor advertisements donated to the candidate or political party shall beprinted, published, broadcast or exhibited without the written acceptance by the said candidate orpolitical party. Such written acceptance shall be attached to the advertising contract and shall besubmitted to the COMELEC. (Sec. 4, R.A. 9006)457Scope

1. Prohibiting the posting of decals and stickers except in the common posting area authorized by theCOMELEC is not valid (Adiong vs. COMELEC, 244 SCRA 272)

2. Mass media may report news relating to candidates, and mass media practitioners may give theiropinion regarding candidates. (National Press Club vs. COMELEC, 207 SCRA 1)458 Sec. 13, R.A. 7166459 Pilar vs. COMELEC, 245 SCRA 759

118

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 whomare public school teachers. 460

Provincial:

1. The provincial election supervisor or alawyer in the regional office of theCOMELEC, as chairman,

2. The provincial fiscal, as vice chairman,and

3. The provincial superintendent of schools asmember.461

City:

1. The city election registrar or a lawyer ofthe COMELEC, as chairman,

2. The city fiscal, as vice chairman, and

3. The city superintendent of schools, asmember.462

Municipal:

1. The election registrar or a representativeof the COMELEC, as chairman,

2. The municipal treasurer, as vice chairman,and

3. The most senior district school

460 If there are not enough public school teachers, teachers in private schools, employees in the civilservice, or other citizens of known probity and competence may be appointed (Sec. 13, R.A. 6646)461 In case of non-availability, absence, disqualification or incapacity, substitute members are thefollowing, in the order named:

1. Provincial auditor,2. Register of Deeds,3. Clerk of Court nominated by the Executive Judge, and4. Any other available appointive provincial official.

462 Substitute members are officials in the city corresponding to the substitutes in the provincial board ofcanvassers

119

supervisor, or in his absence, a principal ofthe school or the elementary school, asmember.463

b. Powers

Board of Election Inspectors Board of Canvassers

1. Conduct the voting and counting of votesIn the polling place;

2. Act as deputies of the COMELEC insupervision and control of the polling place;

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

4. Perform such other functions as prescribedby the Code or by the rules of theCOMELEC.

It has only the ministerial task of compilingand adding the results as they appear in thereturns transmitted to it.464

9. Remedies and Jurisdiction in Election Law

a. Petition Not to Give Due Course to Certificate of Candidacy

May be filed by the person exclusively on the ground that any material representationcontained therein as required465 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, notlater than 15 days before the election.466

463 Substitute members are the municipal administrator, municipal assessor, clerk of court nominated bythe Executive Judge, or any other available appointive municipal officials464 Guiao vs. COMELEC, 137 SCRA 366465 under Section 74 of the Omnibus Election Code

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

citizenship, and any other legal qualifications necessary to run for an elective office; and2.Deliberate attempt to mislead, misinform or hide a fact which would otherwise render a candida

te ineligible.These two requirements must concur to warrant the cancellation of the certificate of candidacy.

466 Sec. 78, id.

120

b. Petition to Declare Failure of Elections467

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 offorce majeure, violence, terrorism, fraud, or other analogous causes;

b. The election in any polling place had been suspended before the hour fixed by lawfor 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 returnsor in the custody or canvass thereof such election results in a failure to elect onaccount of force majeure, violence, terrorism, fraud or other analogous causes.468

c. Pre-Proclamation Controversy469

Any question pertaining to or affecting the proceedings of the board of canvasserswhich may be raised by any candidate or by any registered political party or coalition of politicalparties before the board or directly with the Commission, or any matter raised under Sections

467 The COMELEC has the power to declare a failure of election and this can be exercised motuproprio or upon verified petition. (Loong v. COMELEC, G.R. Nos. 107814‐15, May 16, 1996)468What is common in these three instances is the resulting failure to elect. In the first instance, noelection is held while in the second, the election is suspended. In the third instance, circumstancesattending the preparation, transmission, custody or canvass of the election returns cause a failure toelect. The term failure to elect means nobody emerged as a winner. (Pasandalan vs. Comelec, G.R. No.150312, July 18, 2002)

The causes for the declaration of a failure of election may occur before or after the casting of votes oron 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 thedate of the election not held, suspended, or which resulted in a failure to elect but not later than 30 daysafter 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 regularelection. However, changes may be initiated by written petition of the majority of the voters of theprecinct 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)469 In pre-proclamation controversy, the board of canvassers and the COMELEC are not to look beyond orbehind 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- TheCOMELEC as a general rule need not go beyond the face of the returns and investigate alleged electionirregularities.

To require the COMELEC to examine the circumstances surrounding the preparation of the returnswould 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 electionreturns 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 defectivereturns which appear as such on the face. (Sebastian VS COMELEC, 327 SCRA 406)

121

233, 234, 235 and 236 in relation to the preparation, transmission, receipt, custody andappreciation of the election returns.470

d. Election Protest471

Maybe filed by any candidate who has filed a certificate of candidacy and has been votedupon for the same office.

Grounds Time to file

1. Fraud,

2. terrorism,

3. irregularities or

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

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

10. Prosecution of Election Offenses

The COMELEC is vested with the power of a public prosecutor with theexclusive authority to conduct the preliminary investigation and prosecution of electionoffenses punishable under the Omnibus Election Code.472

470 Chu vs. COMELEC,319 SCRA 482471 The filing of an election protest results in abandonment of a pre-proclamation case even if the protestalleged it was filed as a precautionary measure, if he did not explain why.(Laodenio vs. COMELEC,276SCRA 405)

The rule that the filing of a protest implies abandonment of the pre-proclamation case does not applyif:

1. The protest was filed as a precautionary measure (Mitmug vs. COMELEC,230 SCRA 54)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)472 (Sec. 265, B.P. 881 Omnibus Election Code)

122

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 ControlledCorporations (GOCCs)

Public corporation GOCCsPurpose

Administration of localgovernment

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

Who creates

By the state either bygeneral or special act

By Congress or by incorporators

How created

By legislation 1. Original charters orspecial laws or

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

b. Classifications

Quasi-Corporations Municipal Corporations

Public corporations created asagencies of State for narrowand limited purpose.

A body politic and corporate constituted by incorporationof inhabitants of city or town for purposes of localgovernment thereof or as agency of State to assist incivil government of the country; one formed andorganized for the government of a portion of the State.

123

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

Functions

Public/Governmental Private/Proprietary

It acts as an agent of the State for thegovernment of the territory and theinhabitants within the municipal limits;it exercises by delegation a part of thesovereignty of the State.

It acts in a similar category as a businesscorporation, performing functions not strictlygovernmental or political; it stands forthe community in the administration oflocal affairs. It acts as a separate entityfor its own purposes and not as asubdivision of the State.

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

Creation and Conversion

Plebiscite requirement473 Must be approved by majority of the votes cast in aplebiscite called for such purpose in the political unitor units directly affected.

Income requirement Must be sufficient on acceptable standards to providefor all essential government facilities and services and

473 The plebiscite must be participated in by the residents of the mother province in order toconform to the constitutional requirement.

124

special functions commensurate with the size of itspopulation as expected of the local government unitconcerned.

Average annual income for the last consecutive yearshould be at least:

a. Province – P 20M

b. Highly Urbanized City – P 50M

c. City – P 20M474

d. Municipality – P 2.5M

Population requirement To be determined as the total number of inhabitantswithin the territorial jurisdiction of the local governmentunit concerned.

The required minimum population shall be:

a. Barangay – 2K

But 5K in:

i. Metro Manila

ii. Highly urbanized cities

b. Municipality – 25K

c. City – 150K

d. Province – 250K

Land requirement Must be contiguous, unless it comprises two ormore islands or is separated by a local governmentunit; properly identified by metes and bounds; andsufficient to provide for such basic services andfacilities.

Area requirements are:

a. Municipality – 50 sq. km475

b. City – 100 sq. km476

c. Province – 2,000 sq.km477

474 100M R.A. 9009 amending Sec. 450 of LGC475 Sec. 442, R.A. 7160476 Sec. 450, id.

125

Division and Merger

The division and merger of local government units shall comply with the samerequirements for their creation. The income, population or land area shall not be reducedto less than the minimum requirements. Likewise, the income classification of theoriginal local government unit shall not fall below its current income classification prior tosuch division.478

Abolition

A local government unit may be abolished when its income, population or landarea has been irreversibly reduced to less than the minimum standards prescribed forits creation under the LGC, as certified by the national agencies to Congress or to theSanggunian concerned. Likewise, the law or, ordinance abolishing an LGU shall specifythe province, city, municipality, or barangay with which the local government unit

sought to be abolished will be incorporated or merged.479

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 principleof local autonomy under the 1987 Constitution simply means decentralization. It does notmake the local government sovereign within the state or an “imperium in imperio.”

4. Powers of Local Government Units (LGUs)

a. Police Power480

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

477 Sec. 461, id.

478 Sec.8, ibidEffects 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 titleto all the property, powers, rights and obligations falling within its territorial jurisdiction.479 Sec.9, ibid480 General Welfare Clause

Police power concerns government enactments, which interfere with personal liberty or property topromote the general welfare or the common good.

126

b. Eminent Domain

The power to expropriate private property has been delegated by Congress to LGUsunder Section 19, LGC. The exercise by LGUs of the power of eminent domain are subject tothe usual constitutional limitations such as necessity, private property, taking, public use, justcompensation and due process of law.481

The determination of whether there is genuine necessity for the exercise of the power ofeminent domain is a justiciable question when exercised by the LGUs and generally a politicalquestion when exercised by Congress.482

c. Taxing Power483

Taxes are enforced proportional contributions from persons and property levied by thestate 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.484

d. Closure and Opening of Roads

A local government unit may, pursuant to an ordinance, permanent or temporarily closeor open any local road, alley, park, or square falling within its jurisdiction, provided that in caseof permanent closure, such ordinance must be approved by at least 2/3 of all the members ofthe sanggunian, and when necessary, and adequate substitute for the public facility shall beprovided.485

481 Private property already devoted to public use can still be a subject of expropriation by Congress butnot by LGUs.

The promulgation of the ordinance authorizing the local chief executive to exercise the power must bepromulgated prior to the filing of the complaint for eminent domain with the proper court, and not afterthe 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 anddeposit in court of 15% of the FMV of the property.482 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)483 The power to tax is inherent, thus, it need not be granted by the constitution.484Each local government unit shall have the power to create its own sources of revenues and to levytaxes, fees, and charges subject to such guidelines and limitations as the Congress may provide, consistentwith the basic policy of local autonomy. Such taxes, fees, and charges shall accrue exclusively to the localgovernments (Sec. 5, Art. X, 1987 Cons.)485 Sec. 21, R.A. 7160

Additional limitations in case of permanent closure:i. Adequate provision for the maintenance of public safety must be made;

127

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 theregistered voters of a local government unitmay directly propose, enact or amend anyordinance. It may be exercised by allregistered voters of the provinces, cities,municipalities and barangays.486

It is the legal process whereby theregistered voters of the local governmentunits may approve, amend or reject anyordinance enacted by the sanggunian.487

f. Corporate Powers

1) To Sue and Be Sued

The rule is that suit is commenced by the local executive, upon the authority of theSanggunian, except when the City Councilors, by themselves and as representatives of or behalfof the City, bring the action to prevent unlawful disbursement of City funds.488

ii. The property may be used or conveyed for any purpose for which other real property may be lawfullyused or conveyed, but no freedom park shall be closed permanently without provision for its transfer orrelocation to a new site.

Temporary closure may be made during an actual emergency, fiesta celebrations, public rallies, etc.486 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 sanggunianto enact.487 The local referendum shall be held under the control and direction of the Comelec within 60 days (incase of provinces), 45 days (in case of municipalities) and 30 days (in case of barangays). The Comelecshall certify and proclaim the results of the said referendum.488 City Council of Cebu vs. Cuison, 47 SCRA 325.

128

2) To Acquire and Sell Property

i. The local government unit may acquire real or personal, tangible or intangibleproperty, in any manner allowed by law489

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

iii. In the absence of proof that the property was acquired through corporate or privatefunds, the presumption is that it came from the State upon the creation of the municipality and,thus, is governmental or public property.490

iv. Town plazas are properties of public dominion; they may be occupied temporarily,but only for the duration of an emergency.491

v. A public plaza is beyond the commerce of man, and cannot be the subject of leaseor other contractual undertaking. And, even assuming the existence of a valid lease of thepublic plaza or part thereof, the municipal resolution effectively terminated the agreement, for itis settled that the police power cannot be surrendered or bargained away through the medium ofa contract.492

3) To Enter Into Contracts

(a) Requisites

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

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

iii. The contract must comply with certain substantive requirements, i.e., whenexpenditure of public fund is to be made, there must be an actual appropriation and a certificateof availability of funds.

iv. The contract must comply with the formal requirements of written contracts, e.g.,the Statute of Frauds.

489 e.g., sale, donation, etc490 Salas vs. Jarencio, 48 SCRA 734; Rebuco vs. Villegas, 55 SCRA 656491 Espiritu vs. Municipal Council of Pozorrubio, Pangasinan, 102 Phil. 866492 Villanueva vs. Castaneda, 154 SCRA 142

129

(b) Ultra Vires Contracts

When a contract is entered into without compliance with the first and the thirdrequisites,493 the same is ultra vires and is null and void. Such contract cannot be ratified orvalidated. 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 orimplied.

g. Liability of LGUs

Specific provisions making LGUs liable:

a. Liability for damages- Local government units and their officials are not exempt fromliability for death or injury to persons or damage to property.494

b. The local government unit is liable in damages for death or injuries suffered by reason ofthe defective condition of roads, streets, bridges, public buildings and other public works.495

c. The State is responsible when it acts through a special agent.496

d. The local government unit is subsidiarily liable for damages suffered by a person byreason of the failure or refusal of a member of the police force to render aid and prosecution incase of danger to life and property.497

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 aspossible, be settled amicably.

To this end:

a. Boundary disputes involving two or more barangays in the same city or municipalityshall be referred for settlement to the sangguniang panlungsod or sangguniang bayan concerned.

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

493 supra494 Sec. 24, R.A. 7160495 Art. 2189, NCC496 Art. 2180, par.6, id.497 Art. 34, id.

130

c. Boundary disputes involving municipalities or component cities of different provincesshall 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 ahighly urbanized city on the other, or two or more highly urbanized cities, shall be jointlyreferred for settlement to the respective sanggunians of the parties.498

i. Succession of Elective Officials

Rules:499

A. Permanent vacancies: A permanent vacancy arises when an elective local official fillsa 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

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 thevotes obtained to the number of registered votes in each district.

d. Ties will be resolved by drawing of lots.500

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 thepolitical party of the member who caused the vacancy.501

498 Sec. 118 a-d, R.A. 7160499 Secs. 44-46, id.500 Sec. 44, id.501 A nomination and a certificate of membership of the appointee from the highest official of the politicalparty concerned are conditions sine qua non, and any appointment without such nomination and

131

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

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

vii. Vacancy in the representation of the youth and the barangay in thesanggunian shall be filled by the official next in rank of the organization.502

j. Discipline of Local Officials

(1) Elective Officials

(a) Grounds

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

1. Disloyalty to the Republic of the Philippines.

2. Culpable violation of the Constitution

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

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

5. Abuse of authority.

6. Unauthorized absence for 15 consecutive working days, except in the case ofmembers of the sangguniang panlalawigan, panlungsod, bayan and barangay.

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

(b) Jurisdiction

1. By the President, if the respondent is an elective official of a province, a highlyurbanized or an independent component city;

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

certificate shall be null and void and shall be a ground for administrative action against the officialconcerned.502 Sec. 45, id.

132

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 officialof a province, a highly urbanized or an independentcomponent city;

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

3. By the mayor, if the respondent is an elective official ofthe barangay.503

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 probabilitythat the continuance in office of the respondent couldinfluence the witnesses or pose a threat to the safety andintegrity of the records and other evidence.504

503 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).504 Provided that any single preventive suspension shall not extend beyond 60 days, and in the eventseveral administrative cases are filed against the respondent, he cannot be suspended for more than 90days within a single year on the same ground or grounds existing and known at the time of the firstsuspension.

133

(d) Removal

A verified complaint against any erring local elective official shall be filed to the Officeof the President if the official is of the province or city, to the Sangguniang Panlalawigan in casemunicipal elective officials, or to the Sangguniang Bayan or Panlunsod in case of barangayofficials.505

Grounds:506

1. Gross Misconduct: irregularity in official duties.507

2. Dishonesty

3. Abandonment

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’ sangguniangpanlungsod and the sangguiniang bayan;

2. The Office of the President, in the case of decisions of the sangguniang panlalawiganand 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 Officials508

Officials common to all Municipalities, Cities and Provinces509

a. Secretary to the Sanggunian

b. Treasurer

c. Assessor

d. Accountant

505 Sec. 61, R.A. 7160506 Common Grounds507 liability for gross misconduct may arise when the act, although not one of the official duties, wheresuch act was committed in the workplace or where there is final conviction in a criminal case508In the barangay, the mandated appointive officials are the Barangay Secretary and the BarangayTreasurer, although other officials of the barangay may be appointed by the punong barangay.509 Secs. 469-490, R.A. 7160

134

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

n. Environment and Natural Resources Officer

o. Architect

p. Information Officer

q. Cooperatives Officer

r. Population Officer

s. Veterinarian

t. General Services Officer

k. Recall510

Termination of official relationship of an elective official for loss of confidence prior tothe 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 thelocal elective official subject to such recall belongs.

510 The elective local official sought to be recalled shall not be allowed to resign while the recall process isin 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.

135

2. Two modes of initiating recall:

i. By a preparatory recall assembly511

ii. By the registered voters of the local government unit512

l. Term Limits

Three (3) years, starting from noon of June 30, 1992, or such date as may be provided bylaw, except that of elective barangay officials. No local elective official shall serve for more thanthree consecutive terms in the same position. The term of office of barangay officials andmembers of the sangguniang kabataan shall be for five years, which shall begin after the regularelection of barangay officials on the second Monday of May, 1997.513

The three-term limit on a local official is to be understood to refer to terms for whichthe official concerned was elected. Thus, a person who was elected Vice Mayor in 1988 andwho, because of the death of the Mayor, became Mayor in 1989, may still be eligible to run forthe position of Mayor in 1998, even if elected as such in 1992 and 1995.514

After three consecutive terms, an elective local official cannot seek immediate reelectionfor a fourth term. The prohibited election refers to the next regular election for the same officefollowing the end of the third consecutive term. Any other subsequent election, like a recallelection is no longer covered by the prohibition.515

511 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.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 areelected 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. Recallof provincial, city or municipal officials shall be validly initiated through a resolution adopted by a majorityof all the members of the preparatory recall assembly concerned during its session called for thatpurpose.512 Initiation of recall by registered voters: Recall of a provincial, city, municipal or barangay official mayalso be validly initiated upon petition by at least 25% of the total number of registered voters in the localgovernment unit concerned during the election in which the local official sought to be recalled waselected.513 R.A. 8524514 Borja v. Comelec, G.R. No. 133495, Sept. 3, 1998515 Socrates vs. Comelec, G.R. No. 154512, November 12, 2002

136

M. National Economy and Patrimony516

1. Regalian Doctrine517

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 othernatural resources are owned by the State.

2. Nationalist and Citizenship Requirement Provisions

Lands of the public domain are classified into agricultural, forest or timber, minerallands and national parks. Agricultural lands of the public domain may be further classified bylaw according to the uses to which they may be devoted. Alienable lands of the public domainshall be limited to agricultural lands. Private corporations or associations may not hold suchalienable lands of the public domain except by lease, for a period not exceeding twenty-fiveyears, renewable for not more than twenty-five years, and not to exceed one thousand hectaresin area. Citizens of the Philippines may lease not more than five hundred hectares, or acquirenot more than twelve hectares thereof, by purchase, homestead, or grant.

Taking into account the requirements of conservation, ecology, and development, andsubject to the requirements of agrarian reform, the Congress shall determine, by law, the size oflands of the public domain which may be acquired, developed, held, or leased and theconditions therefor.518

The Congress shall, upon recommendation of the economic and planning agency, whenthe national interest dictates, reserve to citizens of the Philippines or to corporations orassociations at least sixty per centum of whose capital is owned by such citizens, or such higherpercentage as Congress may prescribe, certain areas of investments. The Congress shall enactmeasures that will encourage the formation and operation of enterprises whose capital is whollyowned 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 nationaljurisdiction and in accordance with its national goals and priorities.519

The State shall promote the preferential use of Filipino labor, domestic materials andlocally produced goods, and adopt measures that help make them competitive.520

516 Art. XII517 Sec. 2, Art. XII

- universal feudal theory that all lands were held from the Crown (Holmes, Cariño v. InsularGovernment, 212 US 449).

Exception: any land in the possession of an occupant and of his predecessors-in-interest since timeimmemorial. (Oh Cho v. Director of Land, 75 Phil 890)518 Sec. 3519 Sec. 10520 Sec. 12

137

The State shall pursue a trade policy that serves the general welfare and utilizes all formsand arrangements of exchange on the basis of equality and reciprocity.521

3. Exploration, Development and Utilization of Natural Resources

The exploration, development, and utilization of natural resources shall be under the fullcontrol and supervision of the State. The State may directly undertake such activities, or it mayenter 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 suchcitizens. Such agreements may be for a period not exceeding twenty-five years, renewable fornot more than twenty-five years, and under such terms and conditions as may be provided bylaw.

In cases of water rights for irrigation, water supply, fisheries, or industrial uses otherthan 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 inrivers, lakes, bays, and lagoons.

The President may enter into agreements with foreign-owned corporations involvingeither technical or financial assistance for large-scale exploration, development, and utilization ofminerals, petroleum, and other mineral oils according to the general terms and conditionsprovided by law, based on real contributions to the economic growth and general welfare of thecountry. In such agreements, the State shall promote the development and use of local scientificand technical resources.

The President shall notify the Congress of every contract entered into in accordancewith this provision, within thirty days from its execution.522

4. Franchises, Authority and Certificates for Public Utilities

No franchise, certificate, or any other form of authorization for the operation of a publicutility shall be granted except to citizens of the Philippines or to corporations or associationsorganized under the laws of the Philippines, at least sixty per centum of whose capital is ownedby such citizens; nor shall such franchise, certificate, or authorization be exclusive in characteror for a longer period than fifty years. Neither shall any such franchise or right be grantedexcept under the condition that it shall be subject to amendment, alteration, or repeal by theCongress when the common good so requires. The State shall encourage equity participation inpublic utilities by the general public. The participation of foreign investors in the governingbody of any public utility enterprise shall be limited to their proportionate share in its capital,

521 Sec. 13522 Sec. 2

138

and all the executive and managing officers of such corporation or association must be citizensof the Philippines.523

5. Acquisition, Ownership and Transfer of Public and Private Lands

Save in cases of hereditary succession, no private lands shall be transferred or conveyedexcept to individuals, corporations, or associations qualified to acquire or hold lands of thepublic domain.524

Notwithstanding the provisions of Section 7 of this Article, a natural-born citizen of thePhilippines who has lost his Philippine citizenship may be a transferee of private lands, subjectto limitations provided by law. 525

6. Practice of Professions

The sustained development of a reservoir of national talents consisting of Filipinoscientists, entrepreneurs, professionals, managers, high-level technical manpower and skilledworkers and craftsmen in all fields shall be promoted by the State. The State shall encourageappropriate technology and regulate its transfer for the national benefit. The practice of allprofessions in the Philippines shall be limited to Filipino citizens, save in cases prescribed bylaw.526

7. Organization and Regulation of Corporations, Private and Public

The use of property bears a social function, and all economic agents shall contribute tothe common good. Individuals and private groups, including corporations, cooperatives, andsimilar collective organizations, shall have the right to own, establish, and operate economicenterprises, subject to the duty of the State to promote distributive justice and to intervene whenthe common good so demands.527

8. Monopolies, Restraint of Trade and Unfair Competition

The State shall regulate or prohibit monopolies when the public interest so requires. Nocombinations in restraint of trade or unfair competition shall be allowed.528

523 Sec. 11524 Sec. 7525 Sec. 8526 Sec. 14527 Sec. 6528 Sec. 19

139

N. Social Justice and Human Rights529

1. Concept of Social Justice

Social Justice as envisioned by the Constitution:

- equitable diffusion of wealth and political power for common good;

- regulation of acquisition, ownership, use and disposition of propertyand its increments; and

- creation of economic opportunities based on freedom of initiative andself-reliance.530

2. Commission on Human Rights531

Powers and functions:

1. Investigate, on its own or on complaint by any party, all forms of human rightsviolations involving civil and political rights;

2. Adopt its operational guidelines and rules of procedure, and cite for contempt forviolations thereof in accordance with the Rules of Court;

3. Provide appropriate legal measures for the protection of human rights of all personswithin the Philippines, as well as Filipinos residing abroad, and provide for preventive measuresand legal aid services to the under-privileged whose human rights have been violated or needprotection;

4. Exercise visitorial powers over jails, prisons, or detention facilities;

5. Establish a continuing program of research, education, and information to enhancerespect for the primacy of human rights;

6. Recommend to Congress effective measures to promote human rights and to providefor compensation to victims of violations of human rights, or their families;

7. Monitor the Philippine Government's compliance with international treaty obligationson human rights;

8. Grant immunity from prosecution to any person whose testimony or whosepossession of documents or other evidence is necessary or convenient to determine the truth inany investigation conducted by it or under its authority;

529 Art. XIII530,Secs. 1 and 2, id.531 composed of a Chairman and four Members who must be natural-born citizens of the Philippines and amajority of whom shall be members of the Bar.

140

9. Request the assistance of any department, bureau, office, or agency in theperformance of its functions;

10. Appoint its officers and employees in accordance with law; and

11. Perform such other duties and functions as may be provided by law.532

532 Sec. 18

141

O. Education, Science, Technology, Arts, Culture and Sports

1. Academic Freedom

Aspects:

1. to the institution – to provide that atmosphere which is most conducive tospeculation, experimentation and creation;533

2. to the faculty -

a. freedom in research and in the publication of the results, subject to theadequate performance of his other academic duties;

b. freedom in the classroom in discussing his subject, less controversial matterswhich bear no relation to the subject;

c. freedom from institutional censorship or discipline, limited by his specialposition in the community.

3. to the student - right to enjoy in school the guarantee of the Bill of rights534

533 Freedom to determine for itself on academic grounds:a. who may teach;b. what may be taught;c. how shall it be taught; andd. 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 theprerogative to determine who may teach its students. The Civil Service Commission has no authority toforce it to dismiss a member of its faculty even in the guise of enforcing Civil Service Rules.(UP v. CivilService Commission, GR No.132860, April 3, 2001)534 Non v. Dames, 185 SCRA 523

142

P. Public International Law

1. Concepts

It is a body of legal principles, norms and processes which regulates therelations of States and other international persons and governs their conduct affecting theinterest of the international community as a whole.

The body of legal rules, which apply between sovereign states and such other entities ashave been granted international personality.

a. Obligations Erga Omnes

A legal term describing obligations owed by states towards the community of states as awhole.535

All states have a legal interest in its compliance, and thus all States are entitled toinvoke responsibility for breach of such an obligation.536

The concept was recognized in the International Court of Justice's decision in theBarcelona Traction case, where it said:

"An essential distinction should be drawn between the obligations of a State towards theInternational community as a whole, and those arising vis-a-vis another State In the field ofdiplomatic protection. By their very nature the former are the concern of all States. In view ofthe Importance of the rights Involved, all States can be held to have a legal Interest In theirprotection; they are obligations erga omnes. Such obligations derive, for example. Incontemporary International law, from the outlawing of acts of aggression, and of genocide, asalso from the principles and rules concerning the basic rights of the human person, Includingprotection from slavery and racial discrimination. Some of the corresponding rights ofprotection have entered Into the body of general international law...; others are conferred byInternational 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 asa norm from which no derogation is permitted and which canbe modified only by a subsequentnorm of general international law having the same character.537

535 Examples of erga omnes norms include piracy, genocide, slavery, torture, and racial discrimination.536 Case Concerning The Barcelona Traction, ICJ 1970537 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

143

c. Concept of Aeguo Et Bono

It is a judgment based on considerations of fairness, not on considerations ofexisting law, that is, to simply decide the case based upon a balancing of the equities.538

This is the basis for a decision by an international tribunal on the grounds of justice andfairness - equity overrides all other rules of law.

2. International and National Law

International Law National law

The law that deals with the conduct of statesand international organizations, theirrelations with each other and, in certaincircumstances, their relations with persons,natural or juridical.539

A law or group of laws that apply to a singlecountry or nation, within a determinedterritory and its inhabitants.

Adopted by states as a common rule ofAction.

Issued by a political superior for observance.

Regulates relation of state and otherinternational persons.

Regulates relations of individuals amongthemselves or with their own states.

Derived principally from treaties,international customs and general principlesof law.

Consists mainly of enactments from thelawmaking authority of each state.

Resolved thru state‐to‐state transactions. Redressed thru local administrative andjudicial processes.

Collective responsibility because it attachesdirectly to the state and not to its nationals.

Breach of which entails individualResponsibility.

538 Brownlie, 2003539 American Third Restatement

144

3. Sources

Primary Secondary Sources

a. Treaties- the general rule is that the treatyto be considered a direct source ofinternational law, it must be concludedby sizable number of states and thus reflectthe will or at least the consensus of thefamily of nations.

b. Custom- a practice which has grown upbetween states and has come to be acceptedas binding by the mere fact of persistent

usage over a long period of time. Customis distinguished from usage in that the latterwhile also a long established way of doingthings by states, is not coupled with theconviction that it is obligatory and right.

c. General Principles of Law- mostlyderived from the law of nature and areobserved by the majority of states becausethey are believed to be good and just.540

a. Decisions of international tribunals

b. Writings and teachings of the mosthighly qualified publicists of various nations.

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 politicalends under an independent government, and capable of entering into international relations withother states.

b. International Organizations

May be vested with international personality, provided that they are non-political and areautonomous and not subject to control by any state.541

540 e.g. prescription, estoppel, consent, res judicata and pacta sunt servanda541 e.g. ILO, FAO, WHO

145

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 personalityunder a number of international agreements.

5. Diplomatic and Consular Law542

6. Treaties

Treaty is a formal agreement, usually but not necessarily in writing, which is entered intoby states or entities possessing the treaty-making capacity, for the purpose of regulating theirmutual relations under the law of nations.543

An international agreement concluded between states in written form and governed byinternational law whether embodied in a single instrument or in two or more relatedinstruments.544

7. Nationality and Statelessness

Nationality Statelessness

Membership in a political community withall its concomitant rights and obligations.545

It is the tie that binds the individual tohis State, from which he can claimprotection and whose laws he is obliged toobey.

The condition or status of an individualwho is born without any nationality or wholoses his nationality without retaining oracquiring another.546

542 See Reference543 As a rule, a treaty is binding only on the contracting parties, including not only the original signatoriesbut also other states which, although they may not have participated in the negotiation of theagreements, have been allowed by its term to sign it later by a process known as accession.544 Vienna Convention on the Law of Treaties, 1969545 An individual acquires the nationality of the state where he is born jure soli or the nationality of hisparents jure sanguinis.546 A stateless individual is, from the traditional viewpoint, powerless to assert any right that otherwisewould be available to him under international law where he is a national of a particular state. Any wrongsuffered by him through the act of omission of a state would be damnum absque injuria for in theory noother state had been offended and no international delinquency committed as a result of the damagecaused 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.

146

8. Treatment of Aliens

A State may be held responsible for an international delinquency directly orindirectly imputable to it which causes injury to the national of another State. Liability willattach to the State where its treatment of the alien falls below the international standardof justice or where it is remiss in according him the protection or redress that iswarranted by the circumstances.547

Flowing from its right to existence and as an attribute of sovereignty, no State is underobligation to admit aliens. The State can determine in what cases and under what conditions itmay admit aliens.

The standards to be used are the following:

National treatment/ equality of treatment Minimum international standard

Aliens are treated in the same manner asnationals of the State where they reside

However harsh the municipal laws mightbe, against a State’s own citizens, aliensshould be protected by certain minimumstandards 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 ormanifested as an act of goodwill.

2. Under the principle of specialty, a fugitive who is extradited may be tried only for thecrime specified in the request for extradition and included in the list of offenses in theextradition treaty.548

3. Any person may be extradited, whether he be a national of the requesting state, of thestate of refuge or of another state. The practice of many states now, however, is not to extraditetheir own nationals but to punish them under their own laws in accordance with the nationalityprinciple of criminal jurisdiction.

4. Political and religious offenders are generally not subject to extradition.549

547 Doctrine of State Responsibility548 If he is charged with any other offense committed before his escape, the state of refuge - and not theaccused – has a right to object; Nevertheless, the prosecution will be allowed if the extraditing stateagrees or does not complain.549 In order to constitute an offense of a political character, there must be two or more parties in thestate, 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 beregarded as a political offense for purposes of extradition. Genocide is not a political offense.

147

5. In the absence of special agreement, the offense must have been committed withinthe territory or against the interests of the demanding state.

6. The act for which the extradition is sought must be punishable in both the requestingand requested states under what is known as the rule of double criminality.550

(2) Procedure551

1. Request through diplomatic representative with:

a. decision of conviction;

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;552

4. Upon receipt of a petition for extradition and its supporting documents, the judgemust 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 maypersonally examine the affiants and witnesses of the petitioner. If, in spite of this study andexamination, no prima facie finding is possible, the petition may be dismissed at the discretionof the judge.

On the other hand, if the presence of a prima facie case is determined, then themagistrate must immediately issue a warrant for the arrest of the extraditee,553 who is at the sametime summoned to answer the petition and to appear at scheduled summary hearings.

550 Double Criminality Rule551 Judicial and diplomatic process of request and surrender, P.D. 1069552 Due process requirement complied at the RTC level upon filing of petition for extradition. No need tonotify the person subject of the extradition process when the application is still with the DFA or DOJ.553 Prior to the issuance of the warrant, the judge must not inform or notify the potential extraditee of thependency 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 USvs. Hon. Purganan and Mark Jimenez G.R. No. G.R. No. 148571. September 24, 2002)

148

5. Hearing554

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 andexpenses to be shouldered by requesting state.555

(3) Distinguished from Deportation

Extradition556 Deportation557

Affected at the request of the state of nation Unilateral act of the local state

Based on offenses generally committed in thestate of origin

Based on causes arising in the local state.

Calls for the return of the fugitive to theState of origin

An undesirable alien may be deported to astate other than his own or the state of origin.

554 provide counsel de officio if necessary;555 A state may not compel another state to extradite a criminal without going through the legal processesprovided in the laws of the former.

Extradition is not a criminal proceeding which will call into operation all the rights of an accusedprovided in the bill of rights

For the provisional arrest of an accused to continue, the formal request for extradition is not requiredto be filed in court – it only needs to be received by the requested state in accordance with PD 1069556 The surrender of a person by one state to another state where he is wanted for prosecution or, ifalready convicted for punishment. The extradition of a person is required only if there is a treaty betweenthe state of refuge and the state of origin. In the absence of such a treaty, the local state has every rightto grant asylum to the fugitive and to refuse to deliver him back to the latter state even if he is itsnational.557 Removal of an alien out of a country, simply because his presence is deemed inconsistent with thepublic welfare, and without any punishment being imposed or contemplated either under the laws of thecountry out of which he is sent, or under those of the country to which he is taken.

149

9. International Human Rights Law

a. Universal Declaration of Human Rights (UDHR)

The basic international statement of the inalienable and inviolable rights of humanbeings. It is the first comprehensive international human rights instrument.

Rights covered:

1. Civil and political rights

2. Economic, social and cultural rights558

b. International Covenant on Civil and Political Rights (ICCPR)559

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

558 The exercise of these rights and freedoms may be subject to certain limitation, which must bedetermined by law, only for the purpose of securing due recognition and respect for the rights of othersand of the meeting the just requirements of morality, public order and the general welfare in ademocratic society. Rights may not be exercised contrary to the purposes and principles of the UN.559 The UDHR and the ICCPR treat the right to freedom of movement and abode within the territory of astate, the right to leave a country and the right to enter one’s country as separate and distinct rights. Theright to return to one’s country is not among the rights specifically guaranteed in the Bill of Rights, whichtreats only of liberty of abode and the right to one’s country, but it is our well-considered view that theright to return may be considered, as a generally accepted principle of international law, and under ourconstitution, is part of the law of the land. However, it is distinct and separate from the right to travel andenjoys a different protection under the ICCPR, against being arbitrarily deprived thereof. (Marcos vs.Manglapus, G.R. No. 88211, Sept. 15, 1989)

150

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 religionand to use their own language

c. International Covenant on Economic, Social and Cultural Rights(ICESCR)

Under the Convention on the Elimination of all forms of Discrimination Againstwomen (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 regardstype of work

6. Equal access with men as regards health services, right to services in connection withpregnancy, adequate nutrition during pregnancy and lactation and confinement and the postnatal period.

7. Right to enter marriage, to freely choose a spouse and to enter into marriage only withfree and full consent

8. Equal rights and responsibilities as parents, to freely decide number of children andaccess to information and education to be able to exercise their rights.

151

10. International Humanitarian Law (IHL)560 and Neutrality

International humanitarian law is a set of rules which seek, for humanitarian reasons, tolimit the effects of armed conflict. It protects persons who are not or are no longer participatingin the hostilities and restricts the means and methods of warfare. International humanitarian lawis also known as the law of war or the law of armed conflict.561

a. Categories of Armed Conflicts

(1) International Armed Conflicts

Those in which at least two States are involved. They are subject to a wide range ofrules, 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 betweentwo (2) or more of the Highest contracting parties, even if the State of war is notrecognized by one of them.562

It also applies to armed conflict between the government and a rebel or insurgentmovement.563

(2) Internal or Non-International Armed Conflict

Those restricted to the territory of a single State, involving either regular armed forcesfighting groups of armed dissidents, or armed groups fighting each other. A more limited rangeof 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.

560 Two (2) branches:1. Law of Geneva –

Designed to safeguard military personnel who are no longer taking part in the fighting andpeople 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.561 International humanitarian law is part of international law, which is the body of rules governingrelations between States. International law is contained in agreements between States – treaties orconventions – 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 mayactually use force; this is governed by an important, but distinct, part of international law set out in theUnited Nations Charter.

The four (4) Geneva Conventions of 1949 are the core of international humanitarian law. The GenevaConventions were adopted to limit the human suffering in times of armed conflict.562 Art. 2, Geneva Convention of 1949563 Art. 3, id.

152

These are governed by the provisions of human rights law and such measuresof domestic legislation as may be invoked. IHL does not apply to situations of violencenot 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 selfdetermination.564 These are sometimes called insurgencies, rebellions or wars of independence.

The first Protocol of 1977 provides that peoples fighting against colonial dominationand 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 andnot a civil war. There is considerable difficulty over the meaning of this phrase, and it may bedifficult to apply in practice.565

b. Core International Obligations of States in IHL

Article 1 of all four (4) Geneva Conventions is a key provision when it comes to astate’s responsibilities under international humanitarian law (IHL). It provides that states areresponsible to “respect and ensure respect” for the Conventions in all circumstances.

“To respect” means that all state institutions, and all other individuals orbodies under their authority, must follow the rules of the Geneva Conventions. A state has aduty566 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 conflictsabroad, for example, in peace-keeping missions. In fact, states are responsible to ensure thatthe rights in the Conventions are respected in all places under its control, for example it hasto 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 controlover its soldiers, other relevant personnel, and institutions involved in the fighting ordecision-making surrounding an armed conflict.

To "ensure respect" mainly focuses on the obligation of third states that are notdirectly involved in the conflict - the international community – to intervene if the parties tothe conflict themselves violate the Conventions. This section only deals with the obligationsof the primary violating state.

564[Article 1(4), Protocol I565 Encyclopedia Britannica566 the duty to exercise due diligence

153

c. Principles of IHL

(1) Treatment of Civilians567

In cases not covered by other international agreements, civilians andcombatants remain under the protection and authority of the principles of internationallaw derived from established custom, from the principles of humanity and from thedictates of public conscience.568

(2) Prisoners of War

Rights and privileges:

1.They must be treated humanely, shall not be subjected to physical or mentaltorture, 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, serialnumber, army and regimental number and date of birth; they may not be compelled towork for military services

3.All their personal belonging except their arms and military papers remain theirproperty.

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 aparticipant 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.569

For example, the Neutrality Act of 1939,570 was passed by Congress for the purpose ofpreserving the neutrality of the United States and averting the risks that brought the UnitedStates into World War I.571 The codified law of traditional neutrality is to be found in The HagueConventions Nos. V and XIII of 1907.

567 Customary International Humanitarian Law, March 2005, Rules 1-24568 Martens clause/Principle of humanity569 166 U.S. 1570 22 U.S.C. Sec. 441 et seq.,571 37 F. Supp. 268, 272

154

11. Law of the Sea572

a. Baselines

Consist of straight lines joining appropriate points of the outermost islands of thearchipelago.

Lines from which the breadth of the territorial sea, the contiguous zone and theexclusive economic zone is measured in order to determine the maritime boundary of thecoastal State.

b. Archipelagic States

States constituted wholly by one or more archipelagos and may include otherislands.573

(1) Straight Archipelagic Baselines

An archipelagic State may draw straight archipelagic baselinesby joining the outermost points of the outermost islands and drying reefs of thearchipelago provided that within such baselines are included the main islands and an areain which the ration of the water to the area of the land, including atolls, is between 1 to 1and 9 to 1.574

(2) Archipelagic Waters

These are waters enclosed by the archipelagic baselines, regardless of their depthor distance from the coast.575

Waters covered by the straight baseline which are areas which had not previously beenconsidered 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 andunobstructed passage in sea lanes and air routes through or over the archipelagic watersand 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 the right ofarchipelagic sea lanes passage.576

572 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.573 Art. 46, UNCLOS574 Art. 47, id.575 Art. 49[1], id.576 Magallona, 2005; Art. 53[1] in relation with Art. 53[3], id.

155

The exercise of the rights of navigation and overflight in the normal mode solely for thepurpose of continuous, expeditious and unobstructed transit between one part of the high seasor 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 partof 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 archipelagicwaters.577

All waters578 landwards from the baseline of the territory. Sovereignty over these watersis the same in extent as sovereignty over land, and there is no right of innocent passage.

d. Territorial Sea

The belt of the sea located between the coast and internal waters of the coastal state onthe 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 coastalstate has rights over the economic resource of the sea, seabed and subsoil – but the right doesnot 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.579

f. Continental Shelf

(1) Extended Continental Shelf

Refers to:

a. the seabed and the subsoil of the submarine areas adjacent to the coast but outsidethe area of the territorial sea, to a depth of 200 meters or, beyond that limit, towhere the depth of the superjacent waters admits of the exploitation of the naturalresources of the said areas; and

b. to the seabed and subsoil of similar areas adjacent to the coasts of islands.

577 Art. 8 [1], id.578 part of the sea, rivers, lakes, etc.579 Arts. 55 & 57, id.

156

It is part of the continental shelf that lies beyond the 200 nautical miles from the coastalbaselines.

g. Tribunal of the Law of the Sea580

It is an independent judicial body established by the Third United Nations Conventionon the Law of the Sea to adjudicate disputes arising out of the interpretation and applicationof the Convention. It was established after Ambassador Arvido Pardo Maltaaddressed the General Assemblyof the United Nations and called for “an effective internationalregime overthe seabed and ocean floor beyond a clearly defined national jurisdiction.” Itsseat is in Hamburg, Germany.

ITLOS is composed of 21 independent members elected by the States Parties581 to theUNCLOS from among persons with recognized competence in the field of the law of the seaand representing the principal legal systems of the world. ITLOS has jurisdiction over alldisputes and all applications submitted to it in accordance with UNCLOS and over all mattersspecifically provided for in any other agreement which confers jurisdiction on the ITLOS.

12. 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 ofthe environment," the term environment being understood as encompassing "both thefeatures and the products of the natural world and those of human civilization.582

a. Principle 21 of Stockholm Declaration583

This declares that States have

1. The sovereign right to exploit their own resources pursuant to their ownenvironmental policies, and

2. The responsibility to ensure that activities within their jurisdiction or control donot cause damage to the environment of other States or of areas beyond the limits ofnational jurisdiction.

Include: Pertinent Supreme Court decisions promulgated up to January 31, 2012

580 International Tribunal for the Law of the Sea (ITLOS)581 States which have consented to be bound by the Convention and for which the Convention is in force582 Philippe Sands, Principles of International Environmental Law, 2003583 The Stockholm Declaration, or the Declaration of the United Nations Conference on the HumanEnvironment, was adopted on June 16, 1972 in Stockholm, Sweden. It contains 26 principles and109 recommendations regarding the preservation and enhancement of the right to a healthyenvironment.

157

ReferenceDiplomatic 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 meaningshereunder assigned to them:

(a) The “head of the mission” is the person charged by the sending State with the duty of actingin that capacity;

(b) The “members of the mission” are the head of the mission and the members of the staff ofthe mission;

(c) The “members of the staff of the mission” are the members of the diplomatic staff, ofthe 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 missionhaving diplomatic rank;

(e) A “diplomatic agent” is the head of the mission or a member of the diplomatic staff ofthe mission;

(f) The “members of the administrative and technical staff” are the members of the staff ofthe 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 thedomestic service of the mission;

(h) A “private servant” is a person who is in the domestic service of a member of the missionand who is not an employee of the sending State;

(i) The “premises of the mission” are the buildings or parts of buildings and the landancillary thereto, irrespective of ownership, used for the purposes of the mission including theresidence of the head of the mission.

Article 2

The establishment of diplomatic relations between States, and of permanent diplomatic missions, takesplace 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, withinthe 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;

158

(e) Promoting friendly relations between the sending State and the receiving State, anddeveloping their economic, cultural and scientific relations.

2. Nothing in the present Convention shall be construed as preventing the performance of consularfunctions by a diplomatic mission.

Article 4

1. The sending State must make certain that the agrément of the receiving State has been given for theperson 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 morethan one State, unless there is express objection by any of the receiving States.

2. If the sending State accredits a head of mission to one or more other States it may establish adiplomatic mission headed by a chargé d’affaires ad interim in each State where the head of mission hasnot his permanent seat.

3. A head of mission or any member of the diplomatic staff of the mission may act asrepresentative 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, unlessobjection 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 themembers of the staff of the mission. In the case of military, naval or air attachés, the receiving State mayrequire 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 thesending State.

2. Members of the diplomatic staff of the mission may not be appointed from among personshaving the nationality of the receiving State, except with the consent of that State which maybe withdrawn at any time.

3. The receiving State may reserve the same right with regard to nationals of a third State who are notalso nationals of the sending State.

Article 9

1. The receiving State may at any time and without having to explain its decision, notify thesending State that the head of the mission or any member of the diplomatic staff of the missionis persona non grata or that any other member of the staff of the mission is not acceptable. In any suchcase, the sending State shall, as appropriate, either recall the person concerned or terminate his functionswith the mission. A person may be declared non grata or not acceptable before arriving in the territory ofthe receiving State.

159

2. If the sending State refuses or fails within a reasonable period to carry out its obligations underparagraph 1 of this article, the receiving State may refuse to recognize the person concerned as amember of the mission.

Article 10

1. The Ministry for Foreign Affairs of the receiving State, or such other ministry as may beagreed, shall be notified of:

(a) The appointment of members of the mission, their arrival and their final departure orthe 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 missionand, where appropriate, the fact that a person becomes or ceases to be a member of the family ofa member of the mission;

(c) The arrival and final departure of private servants in the employ of persons referred to insubparagraph (a) of this paragraph and, where appropriate, the fact that they are leaving the employ ofsuch persons;

(d) The engagement and discharge of persons resident in the receiving State as members ofthe 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 mayrequire that the size of a mission be kept within limits considered by it to be reasonable andnormal, having regard to circumstances and conditions in the receiving State and to the needs of theparticular mission.

2. The receiving State may equally, within similar bounds and on a non-discriminatory basis, refuseto accept officials of a particular category.

Article 12

The sending State may not, without the prior express consent of the receiving State, establishoffices forming part of the mission in localities other than those in which the mission itselfis established.

Article 13

1. The head of the mission is considered as having taken up his functions in the receiving State eitherwhen he has presented his credentials or when he has notified his arrival and a true copy of hiscredentials has been presented to the Ministry for Foreign Affairs of the receiving State, or such otherministry as may be agreed, in accordance with the practice prevailing in the receiving State which shallbe applied in a uniform manner.

2. The order of presentation of credentials or of a true copy thereof will be determined by the date andtime of the arrival of the head of the mission.

160

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 missionof equivalent rank;

(b) That of envoys, ministers and internuncios accredited to Heads of State; (c) That of chargésd’affaires accredited to Ministers for Foreign Affairs.

2. Except as concerns precedence and etiquette, there shall be no differentiation between heads ofmission 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 oftaking up their functions in accordance with article 13.

2. Alterations in the credentials of a head of mission not involving any change of class shall not affecthis precedence.

3. This article is without prejudice to any practice accepted by the receiving State regarding theprecedence 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 ofthe 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 inrespect 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 hisfunctions a chargé d’affaires ad interim shall act provisionally as head of the mission. The name of thechargé d’affaires ad interim shall be notified, either by the head of the mission or, in case he isunable to do so, by the Ministry for Foreign Affairs of the sending State to the Ministry forForeign 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 receivingState, 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 thepremises of the mission, including the residence of the head of the mission, and on his means oftransport.

161

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 obtainingaccommodation in some other way.

2. It shall also, where necessary, assist missions in obtaining suitable accommodation for theirmembers.

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 themission against any intrusion or damage and to prevent any disturbance of the peace of themission or impairment of its dignity.

3. The premises of the mission, their furnishings and other property thereon and the means oftransport of the mission shall be immune from search, requisition, attachment or execution.

Article 23

1. The sending State and the head of the mission shall be exempt from all national, regional ormunicipal dues and taxes in respect of the premises of the mission, whether owned or leased, other thansuch as represent payment for specific services rendered.

2. The exemption from taxation referred to in this article shall not apply to such dues and taxespayable under the law of the receiving State by persons contracting with the sending State or the head ofthe 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 forreasons of national security, the receiving State shall ensure to all members of the mission freedom ofmovement and travel in its territory.

Article 27

1. The receiving State shall permit and protect free communication on the part of the mission for allofficial purposes. In communicating with the Government and the other missions and consulates of thesending State, wherever situated, the mission may employ all appropriate means, includingdiplomatic couriers and messages in code or cipher. However, the mission may install and use a wirelesstransmitter only with the consent of the receiving State.

2. The official correspondence of the mission shall be inviolable. Official correspondence means allcorrespondence relating to the mission and its functions.

162

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 andmay 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 andthe number of packages constituting the diplomatic bag, shall be protected by the receiving State in theperformance of his functions. He shall enjoy person inviolability and shall not be liable to any form ofarrest or detention.

6. The sending State or the mission may designate diplomatic couriers ad hoc. In such cases theprovisions of paragraph 5 of this article shall also apply, except that the immunities therein mentionedshall 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 anauthorized port of entry. He shall be provided with an official document indicating the number ofpackages constituting the bag but he shall not be considered to be a diplomatic courier. The mission maysend one of its members to take possession of the diplomatic bag directly and freely from the captain ofthe aircraft.

Article 28

The fees and charges levied by the mission in the course of its official duties shall be exempt from alldues and taxes.

Article 29

The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest ordetention. The receiving State shall treat him with due respect and shall take all appropriate steps toprevent 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 thepremises of the mission.

2. His papers, correspondence and, except as provided in paragraph 3 of article 31, his property, shalllikewise enjoy inviolability.

Article 31

1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. Heshall 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 asexecutor, 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 agentin 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 casescoming under subparagraphs (a), (b) and (c) of paragraph 1 of this article, and provided that themeasures concerned can be taken without infringing the inviolability of his person or of his residence.

163

4. The immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt himfrom the jurisdiction of the sending State.

Article 32

1. The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity underarticle 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 fromjurisdiction under article 37 shall preclude him from invoking immunity from jurisdiction in respect ofany counterclaim directly connected with the principal claim.

4. Waiver of immunity from jurisdiction in respect of civil or administrative proceedings shall not beheld to imply waiver of immunity in respect of the execution of the judgement, for which a separatewaiver shall be necessary.

Article 33

1. Subject to the provisions of paragraph 3 of this article, a diplomatic agent shall with respect toservices rendered for the sending State be exempt from social security provisions which may be in forcein the receiving State.

2. The exemption provided for in paragraph 1 of this article shall also apply to private servants whoare 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 sendingState or a third State.

3. A diplomatic agent who employs persons to whom the exemption provided for in paragraph 2 of thisarticle does not apply shall observe the obligations which the social security provisions of thereceiving State impose upon employers.

4. The exemption provided for in paragraphs 1 and 2 of this article shall not preclude voluntaryparticipation in the social security system of the receiving State provided that such participationis permitted by that State.

5. The provisions of this article shall not affect bilateral or multilateral agreements concerning socialsecurity concluded previously and shall not prevent the conclusion of such agreements in thefuture.

Article 34

A diplomatic agent shall be exempt from all dues and taxes, personal or real, national, regional ormunicipal, 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 receivingState, 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 provisionsof paragraph 4 of article 39;

164

(d) Dues and taxes on private income having its source in the receiving State and capital taxes oninvestments 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 toimmovable property, subject to the provisions of article 23.

Article 35

The receiving State shall exempt diplomatic agents from all personal services, from all publicservice of any kind whatsoever, and from military obligations such as those connectedwith requisitioning, military contributions and billeting.

Article 36

1. The receiving State shall, in accordance with such laws and regulations as it may adopt, permit entryof and grant exemption from all customs duties, taxes, and related charges other than charges forstorage, cartage and similar services, on

(a) Articles for the official use of the mission;

(b) Articles for the personal use of a diplomatic agent or members of his family forming part of hishousehold, including articles intended for his establishment.

2. The personal baggage of a diplomatic agent shall be exempt from inspection, unless there areserious grounds for presuming that it contains articles not covered by the exemptions mentionedin paragraph 1 of this article, or articles the import or export of which is prohibited by the law orcontrolled by the quarantine regulations of the receiving State. Such inspection shall be conductedonly 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 notnationals 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 oftheir families forming part of their respective households, shall, if they are not nationals ofor permanently resident in the receiving State, enjoy the privileges and immunities specified inarticles 29 to 35, except that the immunity from civil and administrative jurisdiction of the receivingState specified in paragraph 1 of article 31 shall not extend to acts performed outside the course of theirduties. They shall also enjoy the privileges specified in article 36, paragraph 1, in respect of articlesimported at the time of first installation.

3. Members of the service staff of the mission who are not nationals of or permanently resident in thereceiving 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 andthe exemption contained in article 33.

4. Private servants of members of the mission shall, if they are not nationals of or permanentlyresident in the receiving State, be exempt from dues and taxes on the emoluments they receive by reasonof their employment. In other respects, they may enjoy privileges and immunities only to theextent admitted by the receiving State. However, the receiving State must exercise its jurisdictionover those persons in such a manner as not to interfere unduly with the performance of the functions ofthe mission.

165

Article 38

1. Except insofar as additional privileges and immunities may be granted by the receiving State, adiplomatic agent who is a national of or permanently resident in that State shall enjoy only immunityfrom 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 orpermanently resident in the receiving State shall enjoy privileges and immunities only to theextent admitted by the receiving State. However, the receiving State must exercise its jurisdictionover those persons in such a manner as not to interfere unduly with the performance of the functions ofthe mission.

Article 39

1. Every person entitled to privileges and immunities shall enjoy them from the moment he enters theterritory of the receiving State on proceeding to take up his post or, if already in its territory, from themoment when his appointment is notified to the Ministry for Foreign Affairs or such other ministry asmay be agreed.

2. When the functions of a person enjoying privileges and immunities have come to an end, suchprivileges and immunities shall normally cease at the moment when he leaves the country, or onexpiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armedconflict. However, with respect to acts performed by such a person in the exercise of his functions as amember 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 enjoythe privileges and immunities to which they are entitled until the expiry of a reasonable period inwhich 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 thereceiving State or a member of his family forming part of his household, the receiving State shallpermit the withdrawal of the movable property of the deceased, with the exception of anyproperty 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 inthe receiving State was due solely to the presence there of the deceased as a member of the mission or asa 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 apassport visa if such visa was necessary, while proceeding to take up or to return to his post, or whenreturning to his own country, the third State shall accord him inviolability and such other immunities asmay be required to ensure his transit or return. The same shall apply in the case of any members of hisfamily enjoying privileges or immunities who are accompanying the diplomatic agent, ortravelling 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 hinderthe passage of members of the administrative and technical or service staff of a mission, and ofmembers of their families, through their territories

3. Third States shall accord to official correspondence and other official communications intransit, including messages in code or cipher, the same freedom and protection as is accorded by thereceiving State. They shall accord to diplomatic couriers, who have been granted a passport visa if suchvisa was necessary, and diplomatic bags in transit, the same inviolability and protection as the receivingState is bound to accord.

166

4. The obligations of third States under paragraphs 1, 2 and 3 of this article shall also apply to the personsmentioned 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 suchprivileges and immunities to respect the laws and regulations of the receiving State. They also havea 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 beconducted with or through the Ministry for Foreign Affairs of the receiving State or such otherministry as may be agreed.

3. The premises of the mission must not be used in any manner incompatible with the functions of themission as laid down in the present Convention or by other rules of general international law or by anyspecial 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 orcommercial activity.

Article 43

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 thediplomatic agent has come to an end;

(b) On notification by the receiving State to the sending State that, in accordance with paragraph 2 ofarticle 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 enablepersons enjoying privileges and immunities, other than nationals of the receiving State, and members ofthe families of such persons irrespective of their nationality, to leave at the earliest possible moment. Itmust, in particular, in case of need, place at their disposal the necessary means of transport forthemselves and their property.

Article 45

If diplomatic relations are broken off between two States, or if a mission is permanently ortemporarily recalled:

(a) The receiving State must, even in case of armed conflict, respect and protect the premises ofthe mission, together with its property and archives;

(b) The sending State may entrust the custody of the premises of the mission, together withits 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 athird

State acceptable to the receiving State.

167

Article 46

A sending State may with the prior consent of a receiving State, and at the request of a third State notrepresented 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 notdiscriminate 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 Conventionrestrictively 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 thanis 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 ofany of the specialized agencies Parties to the Statute of the International Court of Justice, and by anyother State invited by the General Assembly of the United Nations to become a Party to theConvention, as follows: until 31 October 1961 at the Federal Ministry for Foreign Affairs of Austria andsubsequently, 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 bedeposited 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 fourcategories 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 thetwenty-second instrument of ratification or accession with the Secretary-General of the UnitedNations.

2. For each State ratifying or acceding to the Convention after the deposit of the twenty-secondinstrument of ratification or accession, the Convention shall enter into force on the thirtieth dayafter 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 fourcategories mentioned in article 48:

(a) Of signatures to the present Convention and of the deposit of instruments of ratification oraccession, 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.

168

Article 53

The original of the present Convention, of which the Chinese, English, French, Russian andSpanish texts are equally authentic, shall be deposited with the Secretary-General of the UnitedNations, who shall send certified copies thereof to all States belonging to any of the four categoriesmentioned 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 meaningsHere 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 consularfunctions;

(c) “head of consular post” means the person charged with the duty of acting in that capacity;

(d ) “consular officer” means any person, including the head of a consular post, entrusted in thatcapacity with the exercise of consular functions;

(e) “consular employee” means any person employed in the administrative or technical service of aconsular post;

(f) “member of the service staff” means any person employed in the domestic service of a consularpost;

(g ) “members of the consular post” means consular officers, consular employees and members of theservice 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 serviceof 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 andregisters of the consular post, together with the ciphers and codes, the card-indexes and any articleof furniture intended for their protection or safe keeping.

2 .Consular officers are of two categories, namely career consular officers and honorary consularofficers. The provisions of Chapter II of the present Convention apply to consular posts headed by careerconsular officers, the provisions of Chapter III govern consular posts headed by honorary consularofficers.

3 .The particular status of members of the consular posts who are nationals or permanent residents of thereceiving State is governed by article 71 of the present Convention.

169

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, unlessotherwise stated, consent to the establishment of consular relations.

3 .The severance of diplomatic relations shall not ipso facto involve the s severance of consularrelations.

Article 3

Consular functions are exercised by consular posts. They are also exercised by diplomatic missionsin 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’sconsent.

2 .The seat of the consular post, its classification and the consular district shall be established by thesending 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 maybe made by the sending State only with the consent of the receiving State.

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 isitself established.

5 .The prior express consent of the receiving State shall also be required for the opening of anoffice 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, bothindividuals and bodies corporate, within the limits permitted by international law;

(b ) furthering the development of commercial, economic, cultural and scientific relations between thesending g State and the receiving State and otherwise promoting friendly relations between them inaccordance 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 thesending State and giving information to persons interested;

(d ) issuing passports and travel documents to nationals of the sending State, and visas or appropriatedocuments 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 certainfunctions of an administrative nature, provided that there is nothing contrary thereto in the lawsand regulations of the receiving State;

170

(g ) safeguarding the interests of nationals, both individuals and bodies corporate, of the sendingStates in cases of succession mortis causa in the territory of the receiving State, in accordance withthe laws and regulations of the receiving State;

(h ) safeguarding, within the limits imposed by the laws and regulations of the receiving State, theinterests 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 arrangingappropriate representation for nationals of the sending State before the tribunals and other authoritiesof the receiving State, for the purpose of obtaining, in accordance with the laws and regulations ofthe receiving State, provisional measures for the preservation of the rights and interests of thesenationals, where, because of absence or any other reason, such nationals are unable at the propertime to assume the defence of their rights and interests;

(j) transmitting judicial and extrajudicial documents or executing letters rogatory or commissions totake evidence for the courts of the sending State in accordance with in international agreements in forceor, in the absence of such international agreements, in any other manner compatible with the lawsand regulations of the receiving State;

(k) exercising rights of supervision and inspection provided for in the laws and regulations of thesending State in respect of vessels having the nationality of the sending State, and of aircraft registeredin that State, and in respect of their crews ;

(l) extending assistance to vessels and aircraft mentioned in subparagraph (k) of this article, and totheir crews, taking statements regarding the voyage of a vessel, examining and stamping the ship’spapers , and, without prejudice to the powers of the authorities of the receiving State, conductinginvestigations into any incidents which occurred during the voyage, and settling disputes of anykind between the master, the officers and the seamen insofar as this may be authorized by thelaws and regulations of the sending State;

(m ) performing any other functions entrusted to a consular post by the sending State which arenot prohibited by the laws and regulations of the receiving State or to which no o objection istaken by the receiving State or which are referred to in the international agreements in forcebetween the sending State and the receiving State.

Article 6

A consular officer may, in special circumstances, with the consent of the receiving State, exercise hisfunctions outside his consular district.

Article 7

The sending State may, after notifying the States concerned, entrust a consular post established in aparticular State with the exercise of consular functions in another State, unless there is expressobjection 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 athird State.

171

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 thedesignation 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 oftheir functions by the receiving State.

2 .Subject to the provisions of the present Convention , the formalities for the appointment and for theadmission of the head o f a consular post are determined by the laws, regulations an d usages of thesending 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 acommission or similar instrument, made out for each appointment, certifying his capacity andshowing, as a general rule, his full name, his category and class, the consular district and the seat of theconsular post.

2 .The sending State shall transmit the commission or similar instrument through the diplomatic or otherappropriate channel to the Government of the State in whose territory the head of a consular post is toexercise his functions.

3 .If the receiving State agrees, the sending State may, instead of a commission or similarinstrument, send to the receiving State a notification containing the particulars required by paragraph1 of this article.

Article 12

1 .The head of a consular post is admitted to the exercise of his functions by an authorization from thereceiving 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 forsuch refusal.

3 .Subject to the provisions of articles 13 and 15, the head of a consular post shall not enter upon hisduties until he has received an exequatur.

Article 13

Pending delivery of the exequatur, the head of a consular post may be admitted on a provisionalbasis 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 hisfunctions, the receiving State shall immediately notify the competent authorities of the consulardistrict.

172

It shall also ensure that the necessary measures are taken to enable the head of a consular post tocarry 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 ofconsular 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 thesending State or, if that State has no such mission in the receiving State, by the head of theconsular post, or, if he is unable to do so, by any competent authority of the s ending State, to theMinistry 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 theadmission as actin g head of post of a person who is neither a diplomatic agent nor a consularofficer 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 theacting head of post. While he is in charge of the post, the provisions of the present Conventionshall apply to him on the same basis as to the head of the consular post concerned. The receivingState shall not, however, be obliged to grant to an acting head of post any facility, privilege or immunitywhich the head of the consular post enjoys only subject to conditions not fulfilled by the acting head ofpost.

4 .When, in the circumstances referred to in paragraph 1 of this article, a member of thediplomatic staff of the diplomatic mission of the sending State in the receiving State is designated by thesending State as an acting head of post, he shall, if the receiving State does not object thereto, continueto 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 theexequatur.

2 .If, however, the head of a consular post before obtaining the exequatur is admitted to theexercise of his functions provisionally, h is precedence shall be determined according to the date ofthe 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 theexequatur or provisional admission on the same date shall be determined according to the dateson which their commissions or similar instruments or the notifications referred to in paragraph 3 ofarticle 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 asindicated 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 headsof 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 adiplomatic 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 ofsuch acts by a consular officer shall not confer upon him any right to claim diplomatic privilegesand immunities.

173

2 .A consular officer may, after notification addressed to the receiving State, act as representative ofthe sending State to any intergovernmental organization. When so acting, he shall be entitled to enjoyany privileges and immunities accorded to such a representative by customary international law orby international agreements; however, in respect of the performance by him of any consularfunction, he shall not be entitled to any greater immunity from jurisdiction than that to which aconsular 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 aconsular officer in that State.

Article 19

1 .Subject to the provisions of articles 20, 22 and 23, the sending State may freely appoint themembers 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 benotified 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 togrant an exequatur to a consular officer other than the head of a consular post.

4 .The receiving State may, if required by its laws and regulations, g rant an exequatur to aconsular 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 requirethat 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 theparticular consular post.

Article 21

The order of precedence as between the consular officers of a consular post an d any changethereof shall be notified by the diplomatic mission of the sending State or, if that State has nosuch mission n in the receiving State, by the head of the consular post, to the Ministry for Foreign n Affairsof 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 thereceiving 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 notalso 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 nongrata or that any other member of the e consular staff is not acceptable. In that event, the sendingState shall, as the case may be, either recall the person concerned or terminate his functions withthe consular post.

174

2 .If the sending State refuses or fails within a reasonable time to carry out its obligations underparagraph 1 of this article, the receiving State may, as the case may be, either withdraw theexequatur 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 beforearriving in the territory of the receiving State or, if already in the receiving State, before entering on hisduties 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 giveto the sending State reasons for its decision.

Article 24

1 .The Ministry for Foreign Affairs of the receiving State or the authority designated by thatMinistry shall be notified of:

(a ) the appointment of members of a consular post, their arrival after appointment to the consularpost, their final departure or the termination of their functions and any other changes affectingtheir 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 postforming part of his household and, where appropriate, the fact that a person becomes or ceases tobe such a member of the family;

(c) the arrival and final departure of members of the private staff and, where appropriate, thetermination of their service as such;

(d ) the engagement and discharge of persons resident in the receiving State as members of a consularpost 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 toconsider 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 andmembers of the private staff, other than nationals of the receiving State, and to members of theirfamilies forming part of their households irrespective of nationality, the necessary time and facilitiesto enable them to prepare their departure and to leave at the earliest possible moment after thetermination of the functions of the members concerned. In particular, it shall, in case of need, place attheir disposal the necessary means of transport for themselves and their property other than propertyacquired in the receiving State the export of which is prohibited at the time of departure.

175

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 propertycontained 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 ofsubparagraph (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, hasanother consular post in the territory of that State, that consular post may be entrusted with thecustody of the premises of the consular post which has been closed, together with the property containedtherein and the consular archives, and, with the consent of the receiving State, with the exerciseof 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.

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 thereceiving 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 thebuilding occupied by the consular post and at the entrance door thereof, on the residence of the head ofthe 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 andusages of the receiving State.

Article 30

1 .The receiving State shall either facilitate the acquisition on its territory, in accordance with itslaws and regulations, by the sending State of premises necessary for its consular post or assist the latter inobtaining accommodation in some other way.

2 .It shall also, where necessary, assist the consular post in obtaining suitable accommodation for itsmembers.

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 usedexclusively for the purpose of the work of the consular post except with the consent of the head of theconsular post or of his designee or of the head of the diplomatic mission of the sending State. Theconsent of the head of the consular post may, however, be assumed in case of fire or otherdisaster requiring prompt protective action.

176

3 .Subject to the provisions of paragraph 2 of this article, the receiving State is under a specialduty to take all appropriate steps to protect the consular premises against any intrusion or damage and toprevent 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 oftransport 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 impedingthe performance of consular functions, and prompt, adequate and effective compensation shall be paid tothe sending State.

Article 32

1 .Consular premises and the residence of the career head of consular post of which the sendingState or any person acting on its behalf is the owner or lessee shall be exempt from all national, regionalor municipal dues and taxes whatsoever, other than such as represent payment for specific servicesrendered.

2 .The exemption from taxation referred to paragraph 1 of this article shall not apply to such dues andtaxes if, under the law of the receiving State, they are payable by the person who contracted with thesending State or with the person acting on its behalf.

Article 33

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 forreasons of nation al security, the receiving State shall ensure freedom of movement and travel in itsterritory to all members of the consular post.

Article 35

1 .The receiving State shall permit and protect freedom of communication on the part of theconsular post for all official purposes. In communicating with the Government, the diplomaticmissions and other consular posts , wherever situated, of the sending State, the consular post mayemploy all appropriate means, including diplomatic or consular couriers, diplomatic or consular bagsand messages in code or cipher. However, the consular post may install and use a wirelesstransmitter only with the consent of the receiving State.

2 .The official correspondence of the consular post shall be inviolable. Official correspondencemeans all correspondence relating to the consular post and its functions.

3 .The consular bag shall be neither opened nor detained. Nevertheless, if the competent authoritiesof the receiving State have serious reason to believe that the bag contains something other than thecorrespondence, documents or articles referred to in paragraph 4 of this article, they may requestthat the bag be opened in their presence by an authorized representative of the sending State. If thisrequest is refused by the authorities of the sending State, the bag shall be returned to its place oforigin.

4 .The packages constituting the consular bag shall bear visible external marks of their character andmay 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 thenumber of packages constituting the consular bag. Except with the consent of the receiving Statehe shall be neither a national of the receiving State, nor, unless he is a national of the s endingState, a permanent resident of the receiving State. In the performance of his functions he shall be

177

protected by the receiving State. He shall enjoy personal inviolability and shall not be liable to anyform of arrest or detention.

6 .The sending State, its diplomatic miss ion s and its consular posts may designate consularcouriers ad hoc. In such cases the provisions of paragraph 5 of this article shall also apply exceptthat the immunities therein mentioned shall cease to apply when such a courier has delivered tothe 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 toland at an authorized port of entry. He shall be provided with an official document indicating thenumber 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 itsmembers 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 haveaccess to them. Nationals of the sending State shall have the same freedom with respect tocommunication 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 theconsular post of the sending State if, within its consular district, a national of that State is arrestedor committed to prison or to custody pending trial or is detained in any other manner. Anycommunication addressed to the consular post by the person arrested, in prison, custody or detentionshall be forwarded by the said authorities without delay. The said authorities shall inform the personconcerned 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 legalrepresentation.

They shall also have the right to visit any national of the sending State who is in prison, custodyor detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrainfrom taking action on behalf of a national who is in prison, custody or detention if he expressly opposessuch action.

2 .The rights referred to in paragraph 1 of this article shall be exercised in conformity with thelaws and regulations of the receiving State, subject to the proviso, however, that the said laws andregulations must enable full effect to be given to the purposes for which the rights accorded underthis article are intended.

Article 37

If the relevant information is available to the competent authorities of the receiving State, suchauthorities shall have the duty:

(a ) in the case of the death of a national of the sending State, to inform without delay theconsular post in whose district the death occurred;

(b ) to inform the competent consular post without delay of any case where the appointment of aguardian or trustee appears to be in the interests of a minor or other person lacking full capacity who is anational of the s ending State. The giving of this information shall, however, be without prejudice tothe 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 theterritorial sea or internal waters of the receiving State, or if an aircraft registered in the sending

178

State suffers an accident on the territory of the receiving State, to inform without delay theconsular 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 bythe 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 thelaws 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 thereceipts 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 appropriatesteps to prevent any attack on their person, freedom or dignity.

Article 41

1 .Consular officers shall not be liable to arrest or detention pending trial, except in the case of agrave 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 becommitted to prison or be liable to any other form of restriction on their personal freedom savein execution of a judicial decision of final effect.

3 .If criminal proceedings are instituted against a consular officer, he must appear before thecompetent authorities. Nevertheless, the proceedings shall be conducted with the respect due to himby reason of his official position and, except in the case specified in paragraph 1 of this article, in amanner which will hamper the exercise of consular functions as little as possible. When, in thecircumstances mentioned in paragraph 1 of this article, it has become necessary to detain aconsular 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 ofcriminal proceedings being instituted against him, the receiving State shall promptly notify the headof the consular post. Should the latter be himself the object of any such measure, the receiving Stateshall 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 judicialor administrative authorities of the receiving State in respect of acts performed in the exercise of consularfunctions.

2.The provisions of paragraph 1 of this article shall not, however, apply in respect of a civilaction either

179

(a ) arising out of a contract concluded by a consular officer or a consular employee in which he didnot 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 avehicle, vessel or aircraft.

Article 44

1 .Members of a consular post may be called upon to attend as witnesses in the course of judicial oradministrative proceedings . A consular employee or a member of the service staff shall not, except inthe cases mentioned in paragraph 3 of this article, decline to give evidence. If a consular officer shoulddecline 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 theperformance of his functions. It may, when possible, take such evidence at his residence or at theconsular post or accept a statement from him in writing.

3 .Members of a consular post are under no obligation to give evidence concerning mattersconnected with the exercise of their functions or to produce official correspondence and documentsrelating thereto. They are also entitled to decline to give evidence as expert witnesses with regard to thelaw of the sending State.

Article 45

1 .The sending State may waive, with regard to a member of the consular post, any of theprivileges and immunities provided for in articles 41, 43 and 44.

2 .The waiver shall in all cases be express, except as provided in paragraph 3 of this article, and shallbe 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 mightenjoy immunity from jurisdiction under article 43 shall preclude him from invoking immunity fromjurisdiction 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 proceedingsshall not be deemed to imply the waiver of immunity from the measures of execution resultingfrom 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 theirhouseholds shall be exempt from all obligations under the laws and regulations of the receiving State inregard 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 isnot a permanent employee of the sending State or who carries on any private gainful occupation in thereceiving 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, beexempt from any obligations in regard to work permits imposed by the laws and regulations ofthe 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 carryon any other gainful occupation in the receiving State, be exempt from the obligation s referred to inparagraph 1 of this article.

180

Article 48

1 .Subject to the provisions of paragraph 3 of this article, members of the consular post withrespect to services rendered by them for the sending State, and members of their families forming part oftheir households, shall be exempt from social security provisions which may be in force in the receivingState.

2 .The exemption provided for in paragraph 1 of this article shall apply also to members of theprivate 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 athird State.

3 .Members of the consular post who employ persons to whom the exemption provided for inparagraph 2 of this article does not apply shall observe the obligations which the social securityprovisions of the receiving State impose upon employers.

4 .The exemption provided for in paragraphs 1 an d 2 of this article shall not preclude voluntaryparticipation in the social security system of the receiving State, provided that such participationis permitted by that State.

Article 49

1 .Consular officers and consular employees an d members of their families forming part of theirhouseholds shall be exempt from all dues and taxes, personal or real, national, regional ormunicipal, 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 Stateand capital taxes relating to investments made in commercial or financial undertakings in thereceiving State;

(e) charges levied for specific services rendered;

(f) registration, court or record fees, mortgage dues and stamp duties, subject to the provisions ofarticle 32 .

2 .Members of the service staff shall be exempt from dues and taxes on the wages which theyreceive for their services.

3 .Members of the consular post who employ persons whose wages or s alaries are not exemptfrom income tax in the receiving State shall observe the obligations which the laws and regulationsof that State impose upon employers concerning the levying of income tax.

181

Article 50

1 .The receiving State shall, in accordance with such laws and regulations as it may adopt, permitentry of and grant exemption from all customs duties, taxes, and related charges other than chargesfor 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 hishousehold, including articles intended for his establishment. The articles intended for consumption shallnot 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 thisarticle in respect of articles imported at the time of first installation.

3 .Personal baggage accompanying consular officers and members of their families forming part oftheir households shall be exempt from inspection. It may be inspected only if there is serious reasonto believe that it contains articles other than those referred to in subparagraph (b) of paragraph 1 of thisarticle, or articles the import or export of which is prohibited by the laws and regulations of thereceiving State or which are subject to its quarantine laws and regulations. Such inspection shallbe carried out in the presence of the consular officer or member of his family concerned.

Article 51

In the event of the death of a member of the consular post or of a member of his family forming partof his household, the receiving State:

(a ) shall permit the export of the movable property of the deceased, with the exception of any suchproperty 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, andduties on transfers, on movable property the presence of which in the receiving State was duesolely to the presence in that State of the deceased as a member of the consular post or as a member of thefamily of a member of the consular post.

Article 52

The receiving State shall exempt members of the consular post and members of their familiesforming part of their households from all personal services, from all public service of any kindwhatsoever, and from military obligations such as those connected with requisitioning, militarycontributions and billeting.

Article 53

1 .Every member of the consular post shall enjoy the privileges and immunities provided in thepresent Convention from the moment he enters the territory of the receiving State on proceeding totake up his post or, if already in its territory, from the moment when he enters on his duties with theconsular 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 presentConvention from the date from which he enjoys privileges and immunities in accordance with paragraph1 of this article or from the date of their entry into the territory of the receiving State or from the date oftheir 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 andimmunities and those of a member of his family forming part of his household or a member of

182

his private staff shall normally cease at the moment t when the person concerned leaves the receivingState or on the expiry of a reasonable period in which to do so, whichever is the s sooner, but shallsubsist until that time, even in case of armed conflict. In the case of the persons referred to inparagraph 2 of this article, their privileges and immunities shall come to an end when they cease tobelong 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, theirprivileges 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 theexercise 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 formingpart of his household shall continue to enjoy the privileges and immunities accorded to them untilthey 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 visaif a visa was necessary, w while proceeding to take up or return to his post or when returning to thesending g State, the third State shall accord to him all immunities provided for by the other articles ofthe present t Convention as may be required to ensure his transit or return. The same shall apply in thecase of any member of his family forming part of his household enjoying such p privileges andimmunities who are accompanying the consular officer or travelling separately to join him or toreturn to the sending State.

2 .In circumstances similar to those specified in paragraph 1 of this article, third States shall nothinder the transit through their territory of other members of the consular post or of members oftheir families forming part of their households.

3 .Third States shall accord to o official correspondence and to other official communications intransit, including messages in code or cipher, the same freedom and protection as the receiving g Stateis bound to accord under the present Convention. They shall accord to consular couriers who havebeen granted a visa, if a visa was necessary, and to consular bags in transit, the same inviolabilityand 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 thepersons mentioned respectively in those paragraphs, and to official communication s and toconsular 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 suchprivileges and immunities to respect the laws and regulations of the receiving State. They alsohave 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 ofconsular functions.

3 .The provisions of paragraph 2 of this article shall not exclude the possibility of offices of otherinstitutions or agencies being installed in part of the building in which the consular premises aresituated, provided that the p remises assigned to them are separate from those used by the consularpost.

In that event, the said offices s hall not, for the purposes of the present Convention, be consideredto form part of the consular premises.

183

Article 56

Members of the consular post shall comply with an y requirements imposed by the laws andregulations of the receiving State, in respect of insurance against third party risks arising from the use ofany vehicle, vessel or aircraft.

Article 57

1 .Career consular officers shall not carry on for personal profit any professional or commercialactivity 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 gainfuloccupation in the receiving State;

(b ) to members of the family of a person referred to in subparagraph (a) of this paragraph or tomembers of his private staff;

(c) to members of the family of a member of a consular post who themselves carry on anyprivate gainful occupation in the receiving State.

Article 58

1 .Articles 28, 29, 30, 34, 35, 36, 37, 38 and 39, paragraph 3 of article 54 and paragraphs 2 and 3 ofarticle 55 s hall apply to consular posts headed by an honorary consular officer. In addition, thefacilities, privileges and immunities of such consular posts shall be governed by articles 59, 60, 61 and62.

2 .Articles 42 and 43, paragraph 3 of article 44 , articles 45 and 53 and paragraph 1 of article 55shall apply to honorary consular officers. In addition, the facilities, privileges and immunities ofsuch 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 ofthe family of an honorary consular officer or of a consular employee employed at a consular postheaded by an honorary consular officer.

4 .The exchange of consular bags between two consular posts headed by honorary consular officersin 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 aconsular post headed by an honorary consular officer against any intrusion or damage and to prevent anydisturbance 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 thesending State is the owner or lessee shall be exempt from all national, regional or municipal duesand 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 suchdues and taxes if, under the laws and regulations of the receiving State, they are payable by the personwho contracted with the sending State.

184

Article 61

T he consular archives and documents of a consular post headed by an honorary consular officershall be inviolable at all times and wherever they may be, provided that they are kept separatefrom other papers and documents and, in particular, from the private correspondence of the head of aconsular post and of any person working with him, and from the materials, books or documentsrelating to their profession or trade

Article 62

The receiving State shall, in accordance with such laws and regulations as it may adopt, permitentry of, and grant exemption from all customs duties, taxes, and related charges other than chargesfor storage, cartage and similar services on the following articles, provided that they are for the officialuse 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 articlessupplied 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 thecompetent authorities. Nevertheless, the proceedings shall be conducted with the respect due to him byreason of his official position and, except when he is under arrest or detention, in a manner whichwill hamper the exercise of consular functions as little as possible. When it has become necessaryto detain an honorary consular officer, the proceedings against him shall be instituted with the minimumof delay.

Article 64

T he receiving State is under a duty to accord to an honorary consular officer such protection asmay 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 anyprofessional or commercial activity in the receiving State, shall be exempt from all obligations under thelaws 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 anemoluments 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 allpublic services of any kind whatsoever and from military obligations such as those connected withrequisitioning, 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 byconsular agents not designated as head s o f consular post by the sending State.

185

2 .The conditions under which the consular agencies referred to in paragraph 1 of this article may carryon their activities and the privileges and immunities which may be enjoyed by the consular agents incharge 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 theexercise of consular functions by a diplomatic mission.

2 .The names of members of a diplomatic mission assigned to the consular section or otherwisecharged with the exercise of the consular functions of the miss ion shall be notified to the Ministryfor 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 usagesof the receiving State or by relevant international agreements.

4 .The privileges and immunities of the members of a diplomatic mission referred to in paragraph 2 ofthis article s hall continue to be governed by the rules of international law concerning diplomaticrelations.

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 receivingState shall enjoy only immunity from jurisdiction and personal inviolability in respect of officialacts performed in the exercise of their functions, and the privileges provided in paragraph 3 of article44. So far as these consular officers are concerned, the receiving State shall likewise be bound by theobligation laid down in article 42. If criminal proceedings are instituted against such a consularofficer, the proceedings shall, except when he is under arrest or detention, be conducted in amanner 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 thereceiving State and members of their families, as w ell as members of the families of consularofficers referred to in paragraph 1 of this article, shall enjoy facilities, privileges and immunities onlyinsofar as these are granted to them by the receiving State. Those members of the families ofmembers of the consular post and those members of the private staff who are themselves nationalsof or permanently resident in the receiving State shall likewise enjoy facilities, privileges andimmunities only insofar as these are granted to them by the receiving State. The receiving Stateshall, however, exercise its jurisdiction over those persons in such a way as not to hinder unduly theperformance of the functions of the consular post.

Article 72

1 .In the application of the provisions of the present Convention the receiving State shall notdiscriminate 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 restrictivelybecause 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 isrequired by the provisions of the present Convention.

186