Professional Documents
Culture Documents
JUDICIAL POWER
DOCTRINE
AND
POLITICAL
QUESTION
MTC
- They are
administrative bodies performing quasi-judicial functions.
1.
2.
3.
2.
2.
1.
2.
3.
4.
2.
2.
2.
3.
Constitution of Sovereignty:
(Amendatory Process)
Article
XVII
AMENDMENT
-refers to a change that adds, reduces or deletes without
altering the basic principle involved.
Proposal
2.
Ratification
MODES OF
REVISIONS
-affects only the specific provision being amended.
-isolated or piecemeal changes in the Constitution.
Ex. Lowering of the voting age.
1.
PROPOSING
AMENDMENTS
OR
2.
Constitutional convention
a.
b.
3.
2.
Initiative on Statutes
3.
Q. Ethical basis?
2. SPECIAL LAWS
1. GENERAL LAW
Ex. Act No. 3083- applies to any money claims arising from
contracts with the government whether express or implied.
Q. Where?
IMPLIEDLY-2 ways:
1.
10
2.
UNINCORPORATED
AGENCIES:
agencies have no charter.
These
11
12
13
1. Birth
2. Naturalization
Loss and Re-Acquisition of Philippine Citizenship
1. Naturalization
2. Repatriation
2. As to process
14
1. As to how it results
2. As to voluntariness
Ex:
Ex:
15
16
17
This is no self-executing.
Initiative on Statutes
Implemented Article VI. Sec 1
Refers to petitions proposing to enact a national legislation
Valid
Valid.
Bar Q: What is initiative? What is Referendum?
18
19
Composition of CONGRESS
Senator
Representative
(1) Citizenship
Natural born
(2) LIteracy
(3) Voter
Registered voter
(4) Age
(5) Residence
2 years residence
(6) Term
6 years, 2 consecutive
term-limit
Term: 3 years
Kinds of Congressmen:
District representatives
Party-list representatives
this absorbed the sectoral representatives
Art VI, Sec 5(2) x x x for 3 consecutive terms after the
ratifications of this constitution, of the seats allocated to
the party-list representatives shall be filled as provided by
law, by selection or election from the labor, peasant, urban
poor, indigenous cultural communities, women, youth, and
such other sectors as may be provided by law, except the
religious sector.
[other sectors: fisher folks, elderly, handicapped (Sec 5,
RA7941)].
PUF LICE HWY O
Xpn: Religious sector
Qualifications:
20
labor
party
vs.
party list system would not only dilute, but also prejudice
the chance of the marginalized and underrepresented
contrary to the laws intention to enhance it. It would gut the
substance of the party-list system. Instead of generating
hope, it would create a mirage. Instead of enabling the
marginalized, it would further weaken them and aggravate
their marginalization.
Q: Is it open to all?
A: No. It is not open to all but only to the marginalized and
the underrepresented.
21
The religious sector may not be represented in the partylist system or registered as a political party.
Art VI, Sec 5(2) x x x from the labor, peasant urban poor
x x x and such other sectors as may be provided by law,
except religious sector
22
See RA 7941.
The three (3) seat limit
to monitor
objectives;
bureaucratic compliance
with program
23
24
People v Jalosjos
Requisites:
A: YES. Congress has the discretion under Art VI, Sec 15.
It is allowed to remain in session provided only that 30
days before the opening of the next session, it shall
adjourn (compulsory adjournment).
25
Therefore:
Matter or Right before conviction, punishable by penalty
lower than reclusion perpetua
Exception: charged with offense punishable by
RP or death.
Intendment
Implication
Equitable
considerations
26
The right against self incrimination (Art III sec 17) may
be invoked.
In aid of legislation
Bengzon Jr vs. Senate Blue Ribbon Committee
Senator Enrile made a privileged speech on the alleged
takeover of the SOLOIL Inc. by Ricardo Lopa, a relative of
President Auino, and asked the Senate to look into the
possible violation of the law, particularly with regard to
RA3019, the Anti-Graft and Corrupt Practices Act. The
matter was referred to the Senate Blue Ribbon Committee.
Not an inquiry for inquirys sake.
27
Section 21
Whentoexercised
the Congress
or any of its
- pertainsExeption:
to the power
conduct abyquestions
hour; the
committees
wheninformation
conductingininquiries
in aid
of legislation
aim of which
is to obtain
the pursuit
of the
(legislative
contempt),
one
can
be
held
in
detention/sent
to
congress oversight function
prision.
- in pursuit of Congress oversight function
Q: How long can one be held in detention for legislative
contempt?
- attendance
is meant to be discretionary
A: For
as longseeks
as he torefuses
to cooperate,
is not limited
- congress
merely
be informed
on ithow
to the
duration
of the sessionthe
of statutes
Congress.
Thus,
department
heads
are implementing
which
it a person
holds the key to his own freedom. (Arnault vs. Nazareno)
has issued.
28
Organization
Q:
A: 25
How
many
members?
Senate President ex officio chairman
12 Senators
Example:
Senate composition:
K4 = 10
Electoral Tribunals
KNP = 8
LOP = 4
LAKAS = 2
Formula to determine seats per party in the
Commission on Appointments:
# of senators of party
Total # of senators
12 is the # of CoA seats
Simply put, it is the # of senators of a Party DIVIDED by 2
Follow the same formula for HOR component just use the
# of congressmen.
Therefore:
K4 = 5
KNP = 4
LOP = 2
LAKAS = 1
Q: What if there are decimal places?
29
30
a.
b.
c.
Appropriations bill
Private bills
Revenue or Tariff bills
2 rules:
1) One-subject-one-title rule
31
3.
32
no deliberations yet
In the committee to which the bill was referred to, it may die
a natural death if said committee sits on it.
If the members of the committee endorse the bill to the
plenary, it will be calendared for 2nd reading.
Second Reading
The bill is sent back to the plenary.
In the plenary, it will be discussed in its entirety; there will
be sponsorship speech, interpellations, deliberations;
amendments may also be introduced.
Third Reading
Requirement: 3 days before the scheduled 3 rd reading.
Printed copies of the bill will have to be distributed to each
member of the house.
Here, there are no more deliberations, discussions, or
amendments.
There is only voting; the yeas and nays must be entered in
the journal.
33
Art VI. Sec 26(2) Upon the last reading of a bill x x x the
vote thereon shall be taken immediately thereafter, and the
yeas and nays entered in the Journal.
-The yeas and nays on any question at the request of
1/5 of the members present
Art VI, Sec 16(4) Each house shall keep a journal of its
proceedings x x x and the yeas and nays on any question
shall, at the request of 1/5 of the members present, be
entered in the journal.
-The yeas and nays upon re-passing a bill over the
Presidents veto.
speaker
Senate president
34
HELD: The court went beyond the enrolled bill and looked
into the Journal to determine whether theres legal insertion
or not.
Kinds of Veto
Item Veto or Line Veto Art VI, Sec 27, par 2 The
President shall have the power to veto any particular item
or items in an appropriation, revenue, or tariff bill, but the
veto shall not affect the item or items to which he does not
object.
bill
The president may not veto a bill without vetoing the entire
bill. The executive must veto a bill in its entirety or not at
all. He cannot be an editor crossing our provisions which
she dislikes. (Bengzon vs. Drilon)
Exceptions: Selective veto is allowed in 3 kinds o bill (ART)
Appropriation bills
Revenue Bills
Tariff Bills
Grounds for Vetoing Ordinance by the Chief Executive
Sec. 55 of LGC par. A
[UP]
Ultra-vires/
prejudicial to public welfare
Sec 55 of LGC par. B: on Item/line veto:
[PAL]
Appropriation Ordinance
Adopting a local development plan
Ordinance
Authorizing
money/creating Liability
Payment
of
35
Punong Baranggay
36
- Enumeration is exclusive!
37
PRESIDENTIAL SUCCESSION
ARTICLE VII, Sec 8 In case of death, permanent
disability, removal from office or resignation of the
President, the Vice President shall become the President to
serve the unexpired term. D-D-R-R
4 INSTANCES:
(1) Death
(2) permanent Disability
(3) Removal
(4) Resignation
-in such instances, VP shall take over as
President.
- The President can only be removed by means
of impeachment. Se.2, Art.XI
- ARTICLE XI, Sec. 2 : the list of impeachable
officer is exclusive!
(1) President
(2) Vice President
(3) Members of the Supreme Court
(4) Members of the Constitutional
Commission
(5) Ombudsman
- Hence, the provision in the law creating the
Sandiganbayan (1980) is already doubtful! (The law
creating Sandiganbayan provides that SB Justices may
only be removed by impeachment.)
- Grounds:
(a) culpable violation of the Consitution
(b) treason
(c) bribery
(d) graft and corruption
(e) high crimes
(f) betrayal of public trust
Q: Was Estrada impeached?
A: Yes!
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa
(4) Resignation
Estrada vs. Desierto
(Did Erap resign?)
- Elements of Resignation
(a) there must be an intent to resign, which is
coupled with:
(b) act of relinquishment
- Form of Resignation: the validity of a
resignation is not governed by any formal requirement as
to form it can be oral or written; express or implied as
long as the resignation is clear, it must be given effect.
- TOTALITY OF CIRCUMSTANCES TEST AND
CONSTRUCTIVE RESIGNATION Estrada did not write
any formal letter of resignation before leaving Malacanang.
Thus, whether or not he resigned is to be determined from
his acts and omissions before, during, and after January
20,2001 or by the totality of prior, contemporaneous and
posterior facts and circumstantial evidence bearing a
material relevance on the issue using this test, his
resignation cannot be doubted.
In his final statement, he (a) acknowledged Arroyos oathtaking as President; (b) emphasized he was leaving
Malacanang for the sake of peace and order not because
of some inability; (c) expressed his gratitude to the people
for the opportunity to serve them, etc.
38
39
5.
40
Bayan vs Zamora
Case involving ratification of Visiting Forces
Agreement (VFA) with US.
Issue: Is VFA a treaty or executive agreement?
41
42
(4)
Other officers of the government whose
appointments are vested in him in this Constitution
EX: Chairmen and members of CSC, Comelec, COA (by
express provision)
Regular members of JBC (ARTICLE VII, Sec. 8, Par.
2)
EXCEPTION: Judges, Justices, Ombudsman
(by the creation of the JBC, their appointments no longer
require confirmation)
Sectoral representatives in Congress (Teresita
Quintos deles et al vs. Commision on Constitutional
Commission)
SECOND SENTENCE
43
REGULAR
44
Acting Appointments
permanent in nature
merely temporary
requires
confirmation
by
Commission on Appointments
the
Q: To what positions?
A: (1) Constitutional Commissions COA, Comelec, CSC
(2) Office of the Ombudsman
(3) Secretaries
(4) Undersecretaries
- Appointment is discretionary.
- The essence of an appointment in an acting capacity is
its temporary nature. It is a stop-gap measure intended to
fill an office for a limited time until the appointment of a
permanent occupant to the office. In case of vacancy in a
n office occupied by an alter ego of the President, such as
the office of a department secretary, the President must
necessarily appoint an alter ego of her choice as acting
secretary before the permanent appointee of her choice
could assume office.
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa
45
46
47
CONTROL
FORBIDDEN OFFICE
exercised
over
all
executive
referred to in the seconddepartments
sentence bureaus, and offices
Q: What is CONTROL?
he may not be validly appointed
more of an inhibition
more of a prohibition
GENERAL SUPERVISION
CONTROL POWER
48
GANZON VS. CA
Other Limitations
49
PARDONING POWER
ARTICLE VII, Sec.19 Except in cases of impeachment,
or as otherwise provided in this Constitution, the President
may grant reprieves, commutations, and pardons and remit
fines and forfeitures, after conviction by final judgment.
He shall also have the power to grant amnesty with the
concurrence of a majority of all the Members of the
Congress.
FIVE MATTERS COVERED
(1)
(2)
(3)
(4)
(5)
To grant reprieves
To grant commutations
To grant pardons
To remit fines and forfeitures
To grant amnesty
AMNESTY
50
51
52
INTERNATIONAL
EXECUTIVE
more or less
Q: Is VFA a treaty?
TREATY-MAKING POWER
ARTICLE VII, Sec. 21 No treaty or international
agreement shall be valid and effective unless concurred in
by at least 2/3 of all the Members of the Senate.
53
54
55
I.
General Considerations:
as ex
executing
Factoran)
(7)
]
- Term:
The regular members of the Council
shall be appointed by the President for a term of 4 years
with the consent of the Commission on Appointments.
Thus, certain provisions under Art. II are selfEg.: Sec. 16 (See Oposa v.
The 1st sections are entitled Principles, while the rest are
entitled Policies
However, there seems to be no clear distinction
between what are Principles and what are Policies.
II.
56
A:
NO! This clause should not be lifted out
of context. Look at the 1st sentence of the provision that
the civilian authority is supreme over the military. Thus, the
AFPs role must be understood within the context of civilian
supremacy.
57
VI.
A:
people
A:
NO! This is an exception to
the rule n involuntary servitude:
Military
service
to
defend the State
Penal punishment
Assumption
of
jurisdiction of DOLE in
labor cases
Mariners and pilots
Minor children under the
patria
potestas
of
parents
58
constitutionality of
said
ordinances, invoking their
preferential
rights
as
subsistence fishermen to the
use of our communal marine
resources.
HELD:
The preferential
rights
of
subsistence
fishermen to the use of
marine resources is not
absolute. Marine resources,
per the Regalian Dontrine
and under Art. XII, Sec. 2,
belongs to the State, and
their
exploration,
development and utilization
shall be under the States full
control and supervision. It is
a policy enshrined in the
Constitution that the State
has the duty to protect and
advance the right of the
people to a balanced and
healthful ecology in accord
with the rhythm and harmony
of nature. The ordinances
are meant precise to this, so
that the enjoyment of our
resources
may
be
guaranteed for the present
and future generations. The
right to a balanced and
healthful ecology carries with
it a correlative duty to refrain
from
impairing
the
environment.
VII.
[1997])
HELD: This economic policy
does not rule out the entry of
foreign investments, goods,
and services, nor does it
contemplate
economic
exclusion or mendicancy in
the international community.
Aside from envisioning a
trade policy based on
equality and reciprocity, the
fundamental law encourages
industries
that
are
competitive
in
bothe
domestic
and
foreign
markets,
thereby
demonstrating a clear policy
against a sheltered domestic
trade environment, but one in
59
4.
Provisions on Education
Academic Freedom Art. XIV, Sec. 5 (2)
Academic freedom shall be enjoyed in all
institutions of higher learning.
Note that the provision
institutions of higher learning
says
Q:
What
is
academic
A:
Freedom?
2.
3.
2.
Failure
to
meet minimum
academic
requirements
prescribed for
the school or
for the subject;
Violation
of
the schools
rules
of
discipline
60
indigenous
peoples
(IPs) as a distinct sector
in the Philippine society
(2) Grants
them
the
ownership
and
possession of their
ancestral domains and
ancestral lands, and
defines the extent of
these
lands
and
domains,
SALIENT POINTS
1.
Nature of RA 8371(Separate
Opinion of J. Puno)
RA 8371:
(1) Recognizes
the
existence
of
the
indigenous
cultural
communities (ICCs) or
61
Sec.
3(a),
IPRA
Ancestral
Domain
all
areas
belonging to
ICCs/ IPs held
under a claim
of ownership,
occupied or
possessed by
ICCs/IPs by
themselves or
through their
ancestors,
communally or
individually
since
time
immemorial,
continuously
until
the
present,
except when
interrupted by
war,
force
majeure
or
displacement
by
force,
deceit, stealth
or
as
a
consequence
of government
projects or any
other
voluntary
dealings with
government
and/or private
individuals or
corporations
It
comprise
lands, inland
waters,
coastal areas,
and
natural
resources
therein,
including
ancestral
lands, forests,
pasture,
residential,
agricultural
and
other
lands whether
alienable or
not, hunting
grounds,
burial
grounds,
worship areas,
bodies
of
water, mineral
and
other
natural
resources.
(2) Ancestral
Land - Sec.
3(b), IPRA
These
are
lands held by
the ICCs/IPs
under
the
same
conditions as
ancestral
domains
except
that
these
are
limited
to
lands and that
these land are
not
merely
occupied and
possessed but
are
also
utilized
by
62
them under
claims
of
individual or
traditional
group
ownership.
Thus,
Ancestral
Domain
is
a
broader concept
it
includes
Ancestral Lands
4.
5.
Ownership
by
Acquisitive
Prescription v. Ownership by
Native Title (Separate Opinion of
J. Kapunan)
Ownership by Acquisitive
Prescription
Involves
a
conversion of the propertys
character from alienable
public l and to private land
Thus, there is a
transfer for title from the
State to a private person
Meaning, the land
is originally public land, which
is converted to private
Note: This requires
that the land is alienable
Public
Land
Art. XII,
sec. 3
Lands of
the public
domain
are
classified
into
agricultur
al, forest
63
or timber,
mineral
lands,
and
national
parks
Of these,
only
agricultur
al lands
are
alienable
Requirement
for
Acquisitive
Prescription the
private individual
must
have
possessed the land
open, continuously,
exclusively,
adversely,
and
notoriously, in the
concept of an
owner, for either of
the
following
periods:
(1) 30 years
bad faith
(2) 10 years
good faith
7.
NO!
In
Cario
v.
Insular Government, the SC
has held that when as far
back as testimony or memory
goes, the land has been held
by individuals under a claim
of private ownership, it will be
presumed to have been held
in the same way from before
the Spanish conquest, and
never to have been public
land.
Native title is an
exception to jura regalia.
Art. XII, Sec 2. All lands of
the public domain, waters,
minerals, coal, petroleum,
and other mineral oils, all
forces of potential energy,
fisheries, forest or timber,
wildlife, flora and fauna and
other natural resources are
owned by the State
This
is
the
recognition of the Doctrine of
Jura Regalia
ELECTION LAW
Significant Laws
BP 881 Omnibus Election Code
RA 6646 Electoral Reform Law of 1987
RA 7166
RA9006 Fair Election Act
RA 9189 Absentee Voters Act of 2003
Election Process divided into 3 stages:
64
(1) Pre-election
(2) During election
(3) Post Election
PRE-ELECTION STAGE
Registration of Voters
Q:
A:
VOTERS QUALIFICATIONS
Art. V, Sec. 1 Suffrage may be exercised by all citizens
of the Philippines not otherwise disqualified by law, who are
at least eighteen years of age and who shall have resided
in the Philippines for at least one year and in the place
wherein they propose to vote for at least six months
preceding the election. No literacy, property or other
substantive requirement shall be imposed on the exercise
of suffrage.
(1) citizens of the Philippines
(2) not otherwise disqualified by law
(3) at least 18 years of age
(4) resident of the Philippines for at least one year and of
the place wherein they propose to vote for at least six
months immediately preceding the elections
Election Period: 90 days before the day of the election and
shall end 30 days thereafter
-Registration
Art. V. Sec 1
-Political Parties
Art. IX-C, Sec 2(5)
Section 8, BP 881
-
Failure of Elections
Sec. 6 OEC
Sec. 4 RA 7166
Mitmug v. COMELEC
Pre-Proclamation
Sec. 241,242,243 OEC
Sec. 15, RA 7166
Effects of Disqualification
Sec. 6, RA 7166
Guerrero v. COMELEC
Loong v. COMELEC
Salcedo v. COMELEC
Tecson v. COMELEC
Sec. 4 (
Sec. 17
Sec. 2(2
Counter
-
Q:
Is there an exception to the residence
qualification?
A:
MACALINTAL v. COMELEC
Exception to Residence qualification of a voter
HELD: Under the RA 9189 ABSENTEE VOTERS ACT OF
2003, overseas absentee voters are allowed to vote for
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa
EXIT POLLS
The reason for securing the sanctity/secrecy of ballots is to
avoid vote buying through voter identification. What is
forbidden is the association of voters with their respective
votes for the purpose of assuring that votes have been cast
in accordance with the instruction of a third party.
Exit polls conducted by ABS-CBN does not violate the
sanctity of ballots. The contents of the ballots are not
exposed. The revelation is not compulsory but voluntary.
65
Also, voters are not required to reveal their names. (ABSCBN v. COMELEC)
Q:
A:
A:
MULTI-PARTY SYSTEM
We are supposed to have a multi-party system as provided
under Art. IX-C, Sec. 6 A free and open party system
shall be allowed to evolve according to the free choice of
the people, subject to the provisions of this Article.
ELECTION PERIOD
Q:
A:
66
CANDIDATE
Sec. 79(a) Omnibus Election Code the term
CANDIDATE refers to any person aspiring for or seeking
an elective public office, who has filed a certificate of
candidacy by himself of through an accredited political
party, aggroupment, or coalition of parties.
Q:
Does Pichays as itanim sa senado even before
the elections and campaign period violate Sec. 80 of the
OEC?
Q:
A:
No. At that time, Pichay has not yet filed his
certificate of candidacy. He is not yet a candidate within
the meaning of the law. Therefore, it cannot be considered
as an election campaign.
FILING OF CERTIFICATE OF CANDIDACY
Sec.76. Omnibus Election Code Ministerial duty of
receiving and acknowledging receipt The Commission,
provincial election supervisor, election registrar or officer
designated by the Commission or the board of election
inspectors under the succeeding section shall have the
ministerial duty to receive and acknowledge receipt of the
certificate of candidacy.
It is a ministerial duty on the part of the election official to
receive and acknowledge receipt of the certificate of
candidacy. The question of whether or not a person is
disqualified belongs to another tribunal in an appropriate
disqualification case.
Q:
Ka Roger went to Laguna to file COC. The
election officer refused because he seeks to achieve goals
through violence. Valid?
A:
No. It is the ministerial duty on the part of the
election official to receive and acknowledge receipt of the
certificate of candidacy. The question of whether or not a
person is disqualified belongs to another tribunal in an
appropriate disqualification case.
PERIOD
Sec. 73, 1st sentence, OEC No person shall be eligible
for any elective public office unless he files a sworn
certificate of candidacy within the period fixed herein xxx
The certificate of candidacy must be filed within the period
prescribed by law.
Late filing not allowed
WITHDRAWAL
Can you withdraw the certificate of candidacy?
A:
Yes. A person who has filed a certificate of
candidacy may, prior to the election, withdraw the same by
submitting to the office concerned a written declaration
under oath. (Sec. 73, 2nd sentence, OEC)
MONSALE v. NICO
On the last day of filing of certificate of candidacy. March
31, Jose Monsale withdrew his certificate of candidacy.
April 1, campaign started. On April 2, he wanted to run
again so he filed a written declaration withdrawing his
withdrawal.
HELD: The withdrawal of the withdrawal of the certificate
of candidacy made after the last day of filing is considered
as filing of a new certificate of candidacy. Hence, it was not
allowed since it was filed out of time.
EFFECT OF
CANDIDACY
FILING
OF
CERTIFICATE
OF
Appointive Officials
Sec. 66. OEC Candidates holding appointive office or
position Any person holding a public appointive office or
position, including active members of the Armed Forces of
the Philippines, and officers and employees in the
government-owned or controlled corporations, shall be
considered ipso facto resigned from his office upon the
filing of his certificate of candidacy.
Q:
X, a municipal treasurer filed a certificate of
candidacy for governor. What is the effect?
A:
He is considered ipso facto resigned.
Q:
Is there a need to resign?
A:
NO! The appointive official is ipso facto resigned.
Ipso facto means no need to resign.
QUINTO vs COMELEC
-sustained the constitutionality of sec.66 of OEC.
No violation of equal protection clause. There is a valid
classification based on substantial distinction between
those holding appointive and elective offices.
67
Q:
A:
PNOC-EDC v. NLRC
HELD: The OEC does not distinguish between employees
of GOCCs which have original charters and those that do
not have one.
Elective Officials
Sec. 67, OEC Candidates holding elective office xxx
has already been repealed by the Repealing Clause of the
Fair Election Act under Sec. 14, RA 9006 Repealing
Clause. Sec 67 and 85 0f the EOC xxx are hereby
repealed.
Q:
Q:
A:
Secton 38, COMELEC Resolution 7767 (30
Nov 2006), Implementing Rules of the Fair Election Act
Effect of Filing Certificate of Candidacy of Elective Officials
Any elective official, whether national or local, who has
filed a certificate of candidacy for the same or other office
shall not be considered resigned from his office.
FARIAS v. EXECUTIVE SECRETARY
HELD: The provision of the Fair Election Act (RA 9006) to
the extent that it repealed Sec.67 of OEC is constitutional.
Q:
Vice-governor filed a certificate of candidacy for
governor. What is the effect?
A:
He is NOT ipso facto considered resigned. Sec.
67 OEC has been repealed by the FAIR ELECTION ACT
(RA 9006). Any elective official, national or local shall not
be considered as resigned from their elective office.
A:
Q:
A:
SUBSTITUTION OF CANDIDATES
A:
Q:
What are the GROUNDS for substitution of
candidates?
A:
68
MIRANDA v. ABAYA
FACTS: In the 1998 election, mayor Miranda of Isabela,
already served 8 consecutive terms, yet he still filed a
certificate of candidacy. As a result, Abaya filed a
disqualification case. COMELEC then disqualified Miranda
and cancelled his certificate of candidacy. The son of
Miranda, Joel, upon nomination of their political party, filed
a certificate as a substitute. Joel Miranda won.
HELD: There was no valid substitution. COMELEC did not
only disqualify Miranda but also cancelled his certificate of
candidacy. Therefore, he cannot be validly substituted. It
is as if he was not a candidate.
Even on the most basic and fundamental
principles, it is already understood that the concept of a
substitute presupposes the existence of the person to be
substituted, for how can a person take the place of
somebody who does not exist or who never was. The court
has no other choice but to rule that in all instances
enumerated in Sec.77 of the OEC, the existence of a valid
certificate of candidacy seasonably filed is a requisite sine
quo non.
All told, a disqualified candidate may only be
substituted if he had a valid certificate of candidacy in the
first place because if the disqualified candidate did not
have a valid and seasonably filed COC, he is and was not
a candidate at all. If a person was not a candidate, he
cannot be substituted under Sec. 77 of the OEC.
The purpose of the law in requiring the filing of the COC
and in fixing the time limit therefore are:
(a) To enable the voters to know at least 60 days
before the regular election, the candidates
among whom they are to make the choice and
(b) To avoid confusion and inconvenience in the
tabulation of the votes cast
Q:
Q:
A:
Mayor.
LABO DOCTRINE
The thrust is what to do with the votes cast for a
disqualified candidate. Should they be considered as stray
votes?
SC:
No! That would disenfranchise the majority. The
votes cast for the disqualified are not stray votes they are
valid votes only that the candidate was later on found to be
disqualified.
It would have been different if his disqualification
was so apparent, so notorious, so much so that the people,
notwithstanding that they knew him to be disqualified, they
still voted for him in which case the votes cast for him shall
be considered as protest votes. Protest votes are
considered as stray votes. But not in this case, where the
people of Baguio voted for Labo only to find out that he is
disqualified.
You cannot apply Labo Doctrine in Party-List because of
Section 10, RA 7941
CAYAT v. COMELEC
FACTS: Rev. Fr. Nardo Cayat ran for Mayor. Palileng, his
opponent, found out that Cayat, before the elections, was
previously convicted of acts of lasciviousness although he
was granted probation.
His candidacy was then
questioned in a disqualification case invoking Section 40 pf
the LGC. (Disqualification The following persons are
disqualified from running for any elective local position: (a)
those sentenced by final judgment for an offense involving
moral turpitude or for an offense punishable by one (1) year
or more of imprisonment, within (2) years after serving
sentence ; xxx) . COMELEC disqualified Cayat on the
ground of conviction of an offense involving moral
turpitude. However, Cayat alleged that he did not receive a
copy of the judgment. That decision disqualifying Cayat
became final even 2 weeks before the election. Still, Cayat
won in the election. Palileng claimed that since Cayat is
disqualified, he should be the one proclaimed.
HELD: The Court agreed and did not apply the doctrine
of the rejection of the second placer. The one who
obtained the second highest number of votes was the one
actually proclaimed. This is very peculiar because here,
there is only one candidate. Since Cayat was disqualified,
it is as if he is not a candidate. Hence, there is no second
placer here.
69
(2)
Section 69, OEC Nuisance candidates. - The
Commission may motu proprio or upon a verified petition of
an interested party, refuse to give due course to or cancel a
certificate of candidacy if the candidate is a nuisance
candidate.
Q:
Who is NUISANCE CANDIDATE?
A:
A nuisance candidate is a candidate who has no
bona fide intention to run, his purpose is merely to put the
election process in mockery or disrepute or to cause
confusion among the voters by the similarity of the names
of the registered candidates or by other circumstances or
acts intended to prevent a faithful determination of the true
will of the electorate. (Bautista v. COMELEC)
Period to file a petition
Within five (5) days from the last day of filing of the
certificate of candidacy assuming that COMELEC did not
act motu proprio.
(3)
Section 78, OEC Petition to deny due course
to or cancel a certificate of candidacy. - A verified petition
seeking to deny due course or to cancel a certificate of
candidacy may be filed by the person exclusively on the
ground that any material representation contained therein
as required under Section 74 hereof is false. Xxx
Period to file a petition
Within twenty-five (25) days from the time the candidate
filed his certificate of candidacy/ from the date the
candidate alleged to have made misrepresentation in the
COC filed.
LOONG v. COMELEC
FACTS: Loong was a candidate for Vice-Governor in
ARMM. There was an election held but there was yet no
proclamation. Eventually, it was found out that Loong was
still underage. Can the petition to disqualify Loong on the
ground of material misrepresentation prosper?
HELD: No. The petition was filed out of time. The
disqualification case under Sec. 78 should be filed within
25 days from the date the candidate who made the
misrepresentation filed his certificate of candidacy, not on
the date of discovery. The 25-day period is mandatory.
Q:
A:
There is a GAP in the law, which must be
addressed by Congress.
SALCEDO v. COMLELEC
HELD: Material misrepresentation refers to the
QUALIFICATIONS of the elective official for the elective
office and NOT to any innocuous mistake. There must be
70
POST ELECTION
PRE-PROCLAMATION CASE
Q:
After election, but before proclamation, what is
the remedy?
A:
Pre-proclamation case. But this presupposes
that there was election
Q:
A:
71
72
fixed by law for the closing of the voting, or after the voting
and during the preparation and the transmission of the
election returns or in the custody or canvass thereof, such
election results in a failure to elect, and in any of such
cases the failure or suspension of election would affect the
result of the election, the Commission shall, on the basis of
a verified petition by any interested party and after due
notice and hearing, call for the holding or continuation of
the election not held, suspended or which resulted in a
failure to elect on a date reasonably close to the date of the
election not held, suspended or which resulted in a failure
to elect but not later than thirty days after the cessation of
the cause of such postponement or suspension of the
election or failure to elect.
SITUATIONS
(1) No election
The election in any polling place has
not been held on the date fixed on
account of FVTFA
(2) Election is suspended
The election in any polling place has
been suspended before the hour fixed
by law for the closing of the voting on
account of FVTFA
(3) There is a failure to elect
After the voting and during the
preparation and transmission of the
election returns or to the custody or
canvass thereof, such election results
in a failure to elect on account of
FVTFA; nobody emerged as winner
BANAGA v. COMELEC
Failure of election is the same with petition to annul
election returns
General Rule: xxx All such election cases shall be heard
and decided in division, provided that motions for
reconsideration of decisions shall be decided by the
Commision en banc. (Art IX-C, Section 3)
Q:
A:
Q:
Where to file a petition to declare a failure of
election?
A:
COMELEC EN BANC. The majority of the
Commission may grant the petition and schedule special
election in areas affected.
(Section 4, RA 7166 Postponement, Failure of
election and special Elections The postponement,
declaration of failure of election and the calling of special
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa
73
ELECTION PROTEST
- who really won in the election?, determination of real choice
of electorate
-MTC (Original)
(trial courts of limited jurisdictio
-COMELEC (Appellate) (Art.
Sec. 2[2])
DUMAYAS v. COMELEC
Election Protest is a contest between the defeated and
winning candidates on the ground of frauds or irregularities
in the casting and counting of the ballots or in the
preparation of returns. It resolves the question of who
actually obtained the plurality of the legal votes and
therefore is entitled to hold the office.
74
75
ADMINISTRATIVE LAW
Related Laws:
1. Civil Service Law
2. RA 6770 Ombudsman Act
3. RA 7160 Local Government Code
CIVIL SERVICE LAW
Q: When you want to file administrative complaint against
public officer, where shall you file the complaint (original
jurisdiction)?
A: Under Civil Service Law, Original jurisdiction is vested in
the Secretary or Head of Office, Agency or Bureau as the
case maybe.
Q: In LGUs where do you file?
A: In Local chief executive.
Appeal here goes to Civil Service Commission.
From CSC, the appeal goes to Court of Appeals by virtue
of its expanded appellate jurisdiction.
Q: Can you file directly against public official in CSC?
A: Yes. It has bot original and appellate jurisdiction over
admin cases of employees.
RA 6770 Ombudsman Act of 1989
-the
Ombudsman(In
its
Administrative
jurisdiction) has administrative disciplinary authority over all
public officers, whether elective or appointive, national or
local. Except impeachable officers, the members of
Congress and members of Judiciary.
-Ombudsman has concurring jurisdiction with
CSC. From decision of Ombudsman in its administrative
jurisdiction, the appeal is filed before the Supreme Court.
But this was later on declared unconstitutional by SC.
FABIAN vs DESIERTO
Henceforth, from the decision of Ombudsman the
appeal goes to CA and not in SC.
On Question of Availability of APPEAL:
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa
Vasquez;
Quimbo
vs
76
Layno vs Sandiganbayan
Two important definitions of Administrative Law
-
It implements or enforces
Ex: COMELEC - main function is to enforce the laws
relative to the conduct of election.
- This is an executive function.
77
OF
THE
REPUBLIC
OF
THE
2 COMPONENTS:
(1) Corporate governmental entity, through which the
functions of government are exercised throughout the
Philippines.
(2) Various arms through which political authority is made
effective in the Philippines.
78
INSTRUMENTALITY
refers to any agency of the National
Government, not integrated within the
department framework vested with special
functions or jurisdiction by law, endowed
with some if not all corporate powers,
administering special funds, and enjoying
operational autonomy, usually through a
charter.
this term includes regulatory agencies,
chartered institutions and GOCC's. (Sec.2
[16], Introductory Provisions, E.O. 292)
REGULATORY AGENCY
refers to any agency expressly vested with
jurisdiction to regulate, administer, or
adjudicate matters affecting substantial
rights and interests of private persons, the
principal powers of which are exercised by a
collective body, such as a commission,
board or council. (Sec. 2[4] Introductory
Provisions, E.O. 292)
Ex: PRC, NLRC, SEC, Insurance
Commission
CHARTERED INSTITUTIONS
refers to any agency organized or operating
under a special charter, and vested by law
with functions relating to specific
constitutional policies or objectives.
this term includes the state universities and
colleges and the monetary authority of the
state. Section 2 [12] Introductory Provisions,
E.O. 292)
Ex: BSP
GOVERNMENT-OWNED
OR
CONTROLLED
CORPORATION
refers to any agency organized as a stock or
non-stock corporation, vested with functions
relating to public needs whether
governmental or proprietary in nature, and
owned by the government directly or
through its instrumentalities either wholly or
where applicable as in the case of stock
corporations to the extent of fifty-one (51%)
percent of its capital stock xxx (Section 2[13]
Introductory provisions, E.O. 292)
79
Legislative
Process
Supplemental
Power
Jurisdiction Rules of
Interpretative
Contingent
Q. Other names?
A. (1) Rule-making power of an agency
(2) Power of Subordinate Legislation
Delegation of Powers
Conferment of Jurisdiction
QUASI- LEGISLATIVE ADMINISTRATIVE AGENCY
QUASI JUDICIAL
Administrative Regulations
Procedure
Due
Contempt
Appeals
80
81
82
SELECTION
How is public officer chosen?
2 ways:
1. Election
2. Appointment
ABOLITION VS REMOVAL
In abolition, what is abolished is the office itself,
while in removal, it is the occupant that is removed, but the
office remains.
83
APPOINTMENT in focus
Nature of appointment
1. Executive on character
2. Discretionary
LUEGO VS CSC
Felimon Luego was appointed by Mayor Solon as
Administrative Officer II. His appointment was described
as permanent, but CSC approved it on a temporary basis
subjecting it to the final action to be taken on the protest
filed by Felicula Tuazo. Subsequently, CSC found Tuazo to
be better qualified than Luego and directed that Tuazo be
instead appointed. Luego questioned this.
SC: CSC has no authority to revoke said appointment
simply because it believed that Tuazo was better qualified,
for that would have constituted an encroachment on the
discretion vested solely in the City Mayor.
Appointment is essentially a discretionary power and must
be performed by the power on which it is vested. The only
condition being that the appointee should possess the
qualification required by law. If he does, then the
appointment cannot be faulted on the ground that there are
others better qualified who should have been preferred.
LUEGO DOCTRINE:
This is a political question involving consideration
of wisdom which only the appointing authority may
determine. For as long as the appointee has the minimum
requirements, the CSC and the SC are powerless to render
that a better one is more qualified.
REMONTE VS CSC:
The head of an agency who is the appointing
power is the one who is most knowledgeable to decide who
can best perform the function of an office.
FLORES VS DRILON
When the US-Phils treaty expired, Congress
enacted RA 7227, creating the SBMA. The Charter
provided that for the first year of operation, the President
shall appoint the Mayor of Olongapo City as head chairman
and CEO of SBMA. Thus, then Mayor Gordon assumed
the positions.
SC: The Charter violates:
1. Art IX-B, Section 7, part 1:
84
Rules:
1. It applies only in cases of promotion.
PRINCIPLE OF VACANCY
2 PRINCIPLIES:
ABILA VS CSC
When Amado Villafuerte retired from his position
as Admin Officer IV in DOH-Qeuzon City, the Officer-inCharge appointed Alex Abila, who had been the Acting
Asst. Civil Security Officer, as his successor. This was
questioned by Florentina Aleria, the Admin Officer III of
DOH.
85
EXCEPTIONS:
FLORES VS DRILON
2. Color of title.
QUALIFICATION AS AN ENDOWMENT
a. citizenship
- this is the most important
- only Filipinos may hold public office
b. residence
86
Domicile of Choice
-
87
Q: What offenses?
Religious Affiliations
--cannot be a valid disqualification to hold public office
1. Moral turpitude
2.
Punishable by one year or more of
imprisonment
DISQUALIFICATIONS:
Sec. 40, LGC. Disqualifications. The following persons
are disqualified from running for any elective local position:
1. Those sentenced by final judgment for an offense
involving moral turpitude or for an offense punishable by
one year or more of imprisonment within two years after
serving the offense;
2. Those removed from office as a result of an
administrative offense;
3. Those convicted by final judgment for violating an oath
of allegiance to the Republic;
MARQUEZ JR VS COMELEC
88
BORJA VS COMELEC
89
90
SCOPE
Art. IX-B, sec. 2(1) The Civil Service embraces all
branches, subdivisions, instrumentalities and agencies of
the government, including the GOCC with original charters.
KINDS OF APPOINTMENTS
1. Permanent extended to one who possesses all the
qualifications including civil service eligibility.
2. Temporary - extended to one who possesses all the
qualifications but without the civil service eligibility.
91
one year
but it may even be shorter
1. Career Service
2. Non-career Service
BAR Question:
What are the characteristics pf career positions as well as
non-career positions?
1. Career
a. Entrance is based on merit and fitness to be
determined based on competitive examination or it is
based on highly technical qualifications;
b. There is security of tenure;
b. Tenure is:
1. Limited to a period specified by law;
2. Coterminous with that of the
appointing authority or subject to his pleasure; or
92
GRINO VS CSC
The position of a provincial attorney is both highly
technical and primarily confidential position. But its
predominant feature is primarily confidential. Hence, he
can be removed based on loss of trust or confidence.
However his staff is highly technical. He holds the position
co-terminous with the pleasure of the appointing authority.
There is no removal but only expiration of term.
PROXIMITY RULE
- This is the test to determine whether or not the position is
primarily confidential or not. The distance between the
positions of the appointing authority and the employee is
considered.
CSC VS SALAS
Salas was an employee of PAGCOR, a GOCC
with an original charter. He was a supervisor of the dealers
in the casino. He was suspected in engaging in proxy
betting. There was a discreet investigation conducted of
his act. He was later removed on the ground of loss of
trust and confidence. His defense was that he cannot be
removed from office on the ground that under the
Constitution, no employee of the Civil Service shall be
removed except for causes provided by law. On the other
hand, PAGCOR contends that under its charter, all
positions are primarily confidential and hence may be
removed in the ground of loss of confidence. CSC affirmed
his dismissal. On appeal, CA reversed and applied the
proximity rule.
Secretary/head of bureau-CSC-CA
CSCCA
93
d. reprimand;
e. admonition
EXCLUSIO UNIUS EST INCLUSIO ALTERIUS The
suspension against Lapid is clearly not among those
enumerated as immediately executory. The clear import of
these provisions, taken together, is that all other
decisions of the Office of the Ombudsman which impose
penalty outside than those which are enumerated are not
final and unappealable, hence not immediately executory.
An appeal timely filed will suspend or stay immediate
execution of the decision.
FABIAN VS DESIERTO
Direct appeal to the SC has been declared
unconstitutional. Its enactment was in violation of Art. VI
Sec. 30 of the Constitution which provides that no law shall
be passed increasing the appellate jurisdiction of the SC
without its advice and concurrence. The provision in the
Ombudsman Act has the effect of increasing the appellate
jurisdiction of the SC without its advice and concurrence.
b. dismissal;
c. suspension for more than 30 days or
a fine equivalent to more than 30 day salary;
Appeal is available.
c. censure;
d. reprimand;
e. admonition
Appeal will not lie; the decision is final and executory
by express provision of the law.
Appeal is not a constitutional right but merely a
statutory right.
Why? Not part of the Constitution
Q: X was charged administratively, she was later on
exonerated. May the complainant appeal?
94
CSC VS DACOYCOY
Dacoycoy was the head of a government
vocational school in Samar. Two of his sons were
extended permanent appointment under his administrative
supervision although he was not the one who neither
appointed nor recommended them. A case was filed
against him for violation of the law on nepotism. CSC found
him guilty. The penalty was dismissal.
As the party
adversely affected, he appealed to CA. CA exonerated
him. If we will follow the Paredes ruling, there is no more
appeal and the complainant cannot appeal because is
merely a complaining witness.
SC: CSC can appeal because it was their decision that
was reversed by the CA. To this extent only, CSC became
the party adversely affected. By this ruling, the Paredes
Doctrine, up to this extent, is abandoned. The phrase
party adversely affected refers to the government
employee against whom the administrative case is filed for
the purpose of a disciplinary action which may take the
form of suspension, demotion in rank or salary, etc. and not
included are the cases where the penalty imposed is
suspension for not more than 30 days or fine in an amount
not exceeding 30 days salary. (PAREDES VS CSC)
BEJA, SR VS CA
Preventive suspension is not a penalty by itself; it
is imposed only during the pendency of an administrative
investigation. It is merely a measure of precaution so that
the employee who is charged may be separated for
obvious reasons, from the scene of his alleged
misfeasance, ehilr the same is being investigated. Thus,
preventive suspension is distinct from the administrative
penalty of removal from office such as the one mentioned
in Sec 8 (d) of PD 807. While preventive suspension may
be imposed on a respondent during the investigation of the
charges against him, the removal from office is a penalty
which may only be meted out upon him at the termination
of the investigation or the final disposition of the case.
GLORIA VS CA
Preventive suspension pending investigation is
not a penalty. It is simply a means of preventing the latter
from interfering or intimidating the witnesses against him.
YABOT VS OMBUDSMAN VASQUEZ
An administrative case was filed against ViceMayor Yabot by an American doctor. He was placed under
preventive suspension for 60 days. Yabot contends that he
was already suspended and hence, can no longer be
suspended again.
SC: The first suspension that was imposed was not the
penalty. It is merely a preventive suspension. The second
suspension was the penalty. The two suspensions are of
different nature. The service of preventive suspension
cannot be credited with the service of suspension as
penalty.
LAYNO VS SANDIGANBAYAN
PREVENTIVE SUSPENSION (pending investigation)
95
Also, the right to due process of the people who voted for
him is likewise violated.
A preventive suspension that lasted for 5 years
becomes an indefinite suspension and therefore violative of
due process.
A preventive suspension is not an action by itself
but merely an incident to an action.
To know what law is applicable in case of a preventive
suspension, determine first if administrative or
criminal case.
A. ADMINISTRATIVE CASE
1. Civil Service Law
Period - 90 days
3. Ombudsman Act
GLORIA VS CA
During the teachers strike, the public school
teachers in this case did not report for work.
Accordingly, they were administratively charged and
placed under preventive suspension.
The
investigation concluded before their 90 day
suspension and they were found guilty. On appeal,
Merit Systems and Protection Board, later affirmed by
the CSC, dismissed their claim. Before the CA, they
asked that they be paid for their salaries during their
suspension beyond 90 days. This was granted.
Hence, Sec. Gloria questioned this.
Period 6 months
Case Gloria vs CA
IN
AN
96
Q: Period?
A: 60 days for every administrative charge
97
GANZON vs. CA
JURISDICTION
Appointive Officials
Q: Where do you file an administrative complaint
against local appointive officials?
A: From Local chief executive Civil Service
Commission Court of Appeals
Elective Officials
Q: where do you file an administrative complaint
against local elective offificals?
A: (1) Barangay official in a
a.
b.
98
99
3.
a. allowed by law
b. allowed by the primary
functions of their position
(CIVIL LIBERTIES UNION
vs. EXECUTIVE SECRETARY)
100
5.
6.
101
102
Pedro
Manuel
Jose
District I (10,000)
5,000
5,000
103
104
1st
to
5th
member.. Reporma
6th
Member.. Lakas NUCD
7th
Member.. Reporma
8th
Member.. Lakas NUCD
sanggunian
Sanggunian
Sanggunian
Sanggunian
Initiatory
Special Recall Election
105
106
AUTONOMOUS REGIONS
Article X, Section 15 There shall be created
autonomous regions in Muslim Mindanao and in the
Cordilleras consisting of provinces, cities, municipalities,
and geographical areas sharing common and distinctive
historical and cultural heritage, economic and social
structures, and other relevant characteristics within the
framework of this Constitution and the national sovereignty
as well as territorial integrity of the Republic of the
Philippines.
ADMINISTRATIVE REGIONS
Mere grouping of provinces for administrative
purposes. They are not considered as political and
territorial subdivision. There is a need for a plebiscite to be
a political subdivision.
E.g. Region 1
Q: Who has the power to create administrative regions?
A: It has been traditionally exercised by the President in
line with his supervisory powers over the LGUs.
LIMBORA vs. MARGELIN
Concept of Local Autonomy
Decentralization of Administration
- Central government delegates administrative power
to local government in order to broaden the base of
the government.
SC:
This cannot be done. The MMDA is not a political
unit; not a LGU; nor a metropolitan political subdivision.
The chairman was not elected by the people. It is the LGU
that possesses legislative and police power.
DUAL NATURE OF LGU
1. Body politic
2. Body corporate
DUAL FUNCTION OF LGU
1. Acting as body politic- governmental
2. Acting as a corporate entity representing the
inhabitants- proprietary
TWO KINDS OF PROPERTY OF LGU
1. Properties for public service owned in the
governmental capacity e.g. streets
2. Patrimonial property owned in their proprietary
capacity e.g. north cemetery
DACANAY Case
Property owned for public service cannot be a
subject of a contract.
CONDITIONS BEFORE A PROPERTY OWNED FOR
PUBLIC SERVICE BE CONVERTED TO PATRIMONIAL
PROPERTY
1. Continuous non use for public service
2. Positive act from legislative branch
withdrawing use of property from public
service
MAKASIANO vs. COMELEC
In this case, there was a positive act from
Congress but the same is not enough because the two
requirements must be met.
CREATION, DIVISION, MERGER, ABOLITION, OR
SUBSTANTIAL ALTERATION OF BOUNDARY
Article X, Section 10 No province, city,
municipality, or barangay may be created, divided, merged,
abolished, or its boundary substantially altered, except in
accordance with the criteria established in the Local
Government Code and subject to approval by a majority of
107
1.
SC:
Resolution
- merely a dec
body
- temporary
- no reading i
majority of san
108
* Two views:
a.) Traditional view only states are subject of
international law.
- only states have rights which may be
directly enforced or have obligation
for which
it may be held directly accountable under international law.
b.) Modern view not only states are proper
subjects of international law.
- international organizations (ie. United
Nations) are also proper subjects
of international law.
- to a limited extent, the individual is
now considered as proper subject of
international law.
Govt. of HK special administrative region (represented
by Phil. DOJ) vs. Hon. Olalia
- the modern trend in public international law is
the primacy place on the worth of the individual person and
the sanctity of human rights.
109
2.
2 Schools of Thought
a. Constitutive School of Thought
of Recognition- recognition of a
state is a legal act for as long
conditions of fact exist, it must be
given recognition. It is not a matter
of will to whether or not give a
recognition. For as long as
conditions of fact exist, an entity
may demand recognition and must
be accorded recognition.
b. Declaratory School- recognition
of state is a political act. It is a
matter of policy and discretion
whether to give recognition or not.
Recognition of Governments-
2 TYPES:
a.
b.
people
Territory
Government
Sovereignty or Independence or capacity to
enter into relations(Montevideo Convention)
De
Factorecognition
is
provisional; limited to certain
juridical transaction
De Jure- recognition is more or
less permanent; brings about full
diplomatic relations
b.
110
5.
of
according
recognition
to
Act of State Doctrine- the courts of law of one state are not
competent to pass judgment of an act of another state
committed in its territory.
- it is a separate body.
- international criminal
states, who commit the
concern.
3.
Recognition of Belligerency
This may be understood in 2 senses:
a.
b.
Taada vs Angara
-ratification of GATT treaty which created the
WTO. Purpose of GATT Treaty is free exchange of goods
and services between and among nations. Parties must do
away with trade barriers like imposing import or export
quotas to promote trade liberalization.
AUTO-LIMITATION of SOVEREIGNTY
interpretation of Treaty;
any question in ILaw;
existence of any fact which if
established would constitute a
breach of international obligation;
and
111
4.
trial
Human Rights
- those liberties, immunities, and
benefits which all human beings should
be able to claim as of right of the
society in which they live by accepted
contemporary values.
- those fundamental and inalienable
rights which are essential for life as a
human being.
112
113
International Armed
Conflicts
IHL
- protects individ
alike)
- may permit of s
situations of publi
- tailored primarily
to
the
114
their principa
arbitrary behavior
- human rights
complex and inclu
BAR 1993:
Reden, Jolan and Andy,
Filipino tourists, were in Bosnia-Herzegovina when
hostilities erupted between the Serbs and the Moslems.
Penniless and caught in the crossfire, Reden,
Jolan and Andy, being retired generals,
offered
their
services to the Moslems for a handsome salary, which offer
was accepted. When the Serbian National Guard
approached Sarajero, the
Moslem civilian population
spontaneously took up arms to resist the invading
troops. Not finding time to organize, the Moslems
wore armbands to identify themselves,
vowing
to
observe the laws and customs of war. The three Filipinos
fought side by side with the Moslems. The Serbs
prevailed resulting in the capture
of Reden, Jolan
and Andy, and part of the civilian fighting force.
1) Are Reden, Jolan and Andy considered
combatants thus entitled to treatment as prisoners of
war?
NO. Reden, Jolan and Andy are not
combatants because they are mercenaries. They offered
their services to the Moslems for a handsome salary.
They are soldiers of fortune. They are not
members of the armed forces but took part in the hostilities.
They are non-privileged combatants and are not entitled to
treatment as prisoners of war.
2) Are the captured civilians likewise
prisoners of war?
YES. The captured civilians are
prisoners of war. They fall under the category of levee
en masse. When the Serbian National Guard approached
Sarjero, the Moslem civilian population spontaneously took
up arms and resist the
invading troops without
having time to organize. The Moslems wore armbands to
identify themselves, vowing to observe the laws and
customs of war.
Civilian objects may not be
attacked.
-using civilians to shield military targets
is prohibited
- it is prohibited for combatants to pose
as civilians
- starvation of civilians as a method of
combat is prohibited
- it is prohibited to attack objects that
are indispensable to the
survival of civilian population
115
116
CUSTOM vs USAGE
Both involve habitual, repetitious performance of an act
over considerable period of time;
Custom can be a source of Internationally accepted
principle whereas a usage cannot.
Opinio Juris- the conviction that it is obligatory and right.
If an act that is habitual, repetitious and has conviction that
it is obligatory is a CUSTOM. Absent opinion juris, what is
involve is Usage.
General Principles of Law observed by civilized nations:
1.
2.
3.
4.
estoppel;
res alios acta
prescription;
stare decisis(de cheeses) a general
principle of law but is not recognized in
international law because decisions in
internatiol court are binding only between
parties.
117
offenses
118
at the
extradition
119
Ex.
A
group
of
demonstrators, unarmed, numbering 10,000
participated in by
students, urban poor dwellers and religious
members shouting ibagsak
ang gobyerno!
120
SC:
The more compelling state interest
must be upheld to prevent the escape of
potential
extraditee which can be precipitated by premature
information of the basis for the request of his extradition.
- especially since,
extradition, an extraditee is always presumed
to be a flight risk
in
SC:
Mayor Bagatsing is wrong. Any act of
the government alleged to have
infringed
upon
fundamental freedoms comes to court with a heavy
121
longer immediate.
122
are)
TERRITORY
Terrestrial or Land Domain:
-Modes of acquiring land territory
1.
2.
3.
4.
Discovery
and
Occupation of territory
which is terra nullius;
*Doctrine of Effective
Occupation;
Cession;
Prescription;
Conquest
or
123
Subjugation; and
5. Accretion
Internal Waters form part of Terrestrial not
maritime. Here, right to innocent passage cannot
be invoked unless right of arrival under stress:
Rivers;
Lake;
Streams or brooks;
Canals;
Ports; and
harbors
Maritime Domain
1.
2.
3.
Exclusive
Economic
Zone200miles from low water mark.
The coastal state has exclusive
jurisdiction to exploit the sea,
seabed, subsoil and other marine
areas within 200 miles.
INTERNATIONAL WATERS OR
HIGH SEAS- beyond the 200 mile
exclusive economic zone. Takes
the legal status of res communes,
form part of common heritage of
mankind. Not susceptible of
appropriation.
The regime governing the use of
high seas is MARE LIBERUM the
freedom of the high seas.
Freedoms in high seas:
a. Navigation;
b. Fishing;
c. Mining;
d. Laying down
water cables;
and
e. Freedom to do
scientific
research
Q: WHO has jurisdiction over a vessel sailing in the HIGH
SEAS?
A: GENERAL RULE : Flag State: the state whose
nationality the vessel carries which is determined by
registration of the vessel.
EXCEPTIONS:
a. Pirate vessels (enemy of all mankind)
b. If vessel isi engage in slave trade;
c. Vessel is sailing without flag or under false
or refused to show flag when required;
d. If vessel is engaged in unauthorized
broadcast directed against coastal state;
and
e. Under doctrine of hot pursuit: it presupposes
that there was a foreign vessel that entered
in the internal waters, territorial sea or
contiguous zone of another state and that
such state has reasonable grounds to
believe that foreign vessel has committed a
violation of its law in which case that other
state may pursue such vessel even if it
reaches in high seas. The pursuit once
commence must be uninterrupted until it
enters territorial waters of another state.
CONTINENTAL SHELF- comprises of the sea bed and
subsoil that extend beyond territorial sea throughout the
natural prolongation of territory to the outer age of
territorial margin.
Right of Innocent Passage- right of continuous and
expeditious navigation of a foreign vessel through the
territorial sea of the state for the purpose of traversing that
sea without entering the internal waters or calling at a road
stead or port facility outside internal waters.
*Foreign vessesls here include not only merchant but also
foreign naval vessels, in fact even submarines.
Q: what about passage through a strait?
A: strait is a narrow body of water separating 2 islands.
When a foreign vessel passes through a strait, it is invoking
its right to transit passage. From one part of the open sea
to another part of the open sea a foreign vessel passes
through a strait.
Right of Transit Passage is similar with a right of
innocent passage. The former only refers to strait passage
whereas the latter is passage thru territorial sea.
124
3.
4.
ARCHIPELAGO PRINCIPLE
Emphasizes the unity of land and waters. It is a
body of water studded with islands or a group of islands
surrounded by water.
Identify archipelagic area:
1. Identify the outermost points
2. Draw imaginary baselines connecting the
points so that all the islands within those line
will be integrated as 1 whole.
Spratyls: part 22(49:00)
FUNDAMENTAL
RIGHTS
INTERNATIONAL LAW
(SPID)
1.
2.
3.
4.
5.
OF
STATES
IN
Justified Interventions
1.
2.
HEAD OF STATE;
DIPLOMATS (ABSOLUTE immunity from criminal cases
even if not related to office; in civil and administrative
cases also EXCEPT:
(Art.32, Vienna Convention on Diplomatic Relation)A real
action involving private immovable property situated in
territory of receiving state Unless he holds it on behalf of
sending state for purposes of the mission;
action relating to succession in which the diplomatic agent
is involved as executor, administrator, heir or legatee as
private person and not on behalf of sending state;
action relating to any professional or commercial activity
exercised by DA outside of his official functions.
CONSULS and CONSULAR OFFICIALS- they are only
immune from local criminal jurisdiction if the offense was in
connection with the performance of their official functions.
As to arrest, they are immune for minor offenses.
EX-TERRITORIALITY- thing situated in one place and yet
withdrawn from jurisdiction of the state because it is the
extension of territories they belong under international
customs. e.g. embassy premises.
FOREIGN VESSELS : English and French Rule
FOREIGN ARMIES- depend on provision of treaty allowing
them to stay in foreign shores.
2.
3.
DRAGO DOCTRINE
-intervention for the purpose of collecting contractual debt
is prohibited
125
4.
Law on Treaties
2.
2.
3.
126
2.
3.
4.
5.
2.
3.
7.
127
BILL OF RIGHTS
Valid Warrantless Search
I.
II.
People vs Mengote
People vs Doria
McFadden Case
2.
3.
1.
2.
3.
Must be pre-announced;
Must be stationary not roving;
Must be limited to visual search
not intrusive;
OF
and
RA 4200
128