POLITICAL LAW

Sheila Pusheen notes

(use at your own risk; this reviewer is highly compressed; please correct if there
are errors)

THE 1987 CONSTITUTION

NATURE AND CONCEPT OF A CONSTITUTION

Definition
– body of rules and maxims in accordance with which the powers of sovereignty
are habitually exercised
– the written instrument enacted by direct action of the people by which the
fundamental powers of the government are established, limited and defined,
and by which those powers are distributed among the several departments for
their safe and useful exercise for the benefit of the body politic

Purpose
– to prescribe the permanent framework of a system of government
– to assign to the several departments their respective powers and duties
– to establish certain first principles on which the government is founded

Classifications
". written - one whose precepts are embodied in one document or set of
documents
$. unwritten - consists of rules which have not been integrated into a single,
concrete form but are scattered in various sources
%. enacted / conventional - formally struck off at a definite time and place,
following a conscious or deliberate effort taken by a constituent body or ruler
&. evolved / cumulative - the result of political evolution, not inaugurated at any
specific time but changing by accretion rather than by any systematic method
'. rigid - one that can be amended only by a formal and usually difficult process
(. flexible - one that can be changed by ordinary legislation

PARTS OF A CONSTITUTION
". Constitution of Liberty
○ series of prescriptions setting forth the fundamental civil and political
rights of the citizens and imposing limitations on the power of the
government as a means of securing the enjoyment of those rights
○ e.g. Art. III Bill of Rights
$. Constitution of Government
 ○ provisions outlining the organization of the government, enumerating its
powers, laying down certain rules relative to its administration and
defining the electorate
○ e.g. Arts. VI, VII, VIII, IX Legislative, Executive, Judicial, Constitutional
Commissions
%. Constitution of Sovereignty
○ provisions pointing out the modes or procedure in accordance with which
formal changes in the Constitution may be made
○ e.g. Art XVII

AMENDMENTS AND REVISIONS

Definitions
". Amendment
○ isolated or piecemeal change merely by adding, deleting, or reducing
without altering the basic principles involved
○ affects only the specific provision being changed
$. Revision
○ a revamp or rewriting of the whole instrument altering the substantial
entirety of the Constitution
○ change that alters a basic principle in the Constitution
○ affects several provisions

Tests to determine whether change is amendment or revision (Lambino case)

". quantitative test
○ asks whether the proposed change is so extensive in its provisions as to
change directly the ‘substantial entiretyʼ of the Constitution by the
deletion or alteration of numerous existing provisions
○ court examines only the number of provisions affected and does not
consider the degree of the change
$. qualitative test
○ inquires into the qualitative effects of the proposed change in the
Constitution
○ asks whether the change will accomplish such far reaching changes in the
nature of our basic governmental plan as to amount to a revision

Steps in the amendatory or revision process

". Proposal, which may come from any of the following:
○ Constituent Assembly
– Congress by a vote of 3/4 of all its members
◆ understood as referring to 3/4 of Senate and 3/4 of the HOR
○ Constitutional Convention
– either by
◆ Congress upon 2/3 vote of all its members
 – to call for a ConCon
◆ majority votes of all members of Congress
– to submit to the Electorate the question of calling a ConCon,
by plebiscite
○ Peopleʼs Initiative
– amendments only
– upon petition of at least 12% of total number of registered voters, of
which every legislative district must be represented by at least 3% of
registered voters therein
– full text of the proposed amendments attached in the petition
$. Ratification
– proposed amendment or revision should be ratified by majority in a
plebiscite which should be held not earlier than 60 days nor later than 90
days after the approval of Congress, ConCon, or certification by
COMELEC
– requisites for valid ratification:
◆ held in a plebiscite conducted under Election Law
◆ supervised by COMELEC
◆ where only registered voters take part
– Doctrine of Proper Submission: because the Constitution itself prescribes
the time frame within which the plebiscite is to be held, there will no
longer arise the question of whether the time given to the people to
determine the merits and demerits of the proposed amendment is
adequate
◆ all amendments must be submitted for ratification in one plebiscite
only. The people have to be given a proper frame of reference in
arriving at their decision

METHODS OF INTERPRETING THE CONSTITUTION

". verba legis
○ wherever possible, the words used in the Constitution must be given their
ordinary meaning except where technical terms are employed
$. ratio legis est anima
○ where there is ambiguity, the words of the Constitution should be
interpreted in accordance with the intent of the framers
%. ut magis valeat quam pereat
○ the Constitution is to be interpreted as a whole

BASIC CONCEPTS

DECLARATION OF PRINCIPLES AND STATE POLICIES

Doctrine of Constitutional Supremacy
 – if a law or contract violates any norm of the Constitution, that law or contract,
whether promulgated by the legislative or the executive branch or entered into
by private persons for private purposes, is null and void and without any force
and effect
– the Constitution is deemed written in every statute and contract

Republican State
– a state wherein all government authority emanates from the people and is
exercised by representatives chosen by the people
– manifestations:
". ours is a government of laws and not of men
$. rule of majority (Plurality in elections)
%. accountability of public officials
&. bill of rights
'. legislature cannot pass irrepealable laws
(. separation of powers

State policy on war

– State renounces war as an instrument of national policy
○ does not denounce defensive war
– voting requirements:
". 2/3 vote of both Houses
$. In joint session
%. Voting separately

Independent foreign policy and a nuclear-free Philippines

– State shall pursue an independent foreign policy
– in its relations with other states, the paramount consideration shall be national
sovereignty, territorial integrity, national interest, and the right to self-
determination
– Philippines, consistent with the national interest, adopts and pursues a policy
of freedom from nuclear weapons in its territory
○ only for weapons

Policies of the State on the following

". Working women
○ Sec. 14, Art. XIII: “The State shall protect working women by providing
safe and healthful working conditions, taking into account their maternal
functions, and such facilities and opportunities that will enhance their
welfare and enable them to realize their full potential in the service of the
nation.”
$. Ecology
○ Sec. 16, Art. II: “The State shall protect and advance the right of the
 ○
people and their posterity to a balanced and healthful ecology in accord
with the rhythm and harmony of nature.”
%. Symbols of statehood
○ Flag of the Philippines (Art. XVI, Sec. 1)
○ Name of the country, National Anthem, and National Seal (Art. XVI, Sec. 2)
&. Cultural minorities
○ Recognition and Promotion of Rights of Indigenous Cultural Communities
(Art. II, Sec. 22)
○ Protection of Ancestral Lands of Indigenous Communities (Art. XII, Sec. 5)
○ Application of Principles of Agrarian Reform and Stewardship to
Indigenous Communities and Landless Farmers (Art. XIII, Sec. 65)
○ Preservation and Development of the Culture, Traditions, and Institutions
of Indigenous Communities (Art. XIV, Sec. 17)
'. Science and technology
○ Priority to Education, Science and Technology, Arts, Culture, and Sports
(Art. II, Sec. 17)
○ Development of national talents consisting of Filipino scientists,
entrepreneurs, professionals, managers, high-level technical manpower
and skilled workers and craftsmen (Art. XII, Sec. 14)
○ Mandate on educational institutions (Art. XIV, Sec. 3(4))
○ Priority to research and development, invention, innovation of science and
technology (Art. XIV, Sec. 10)
○ Incentives, tax deductions, and scholarships to encourage private
participation in programs of basic and applied scientific research (Art. XIV,
Sec. 11)
○ Encouragement of widest participation of private groups, local
governments, and organizations in the generation and utilization of
science and technology (Art. XIV, Sec. 12)

Constitutional provision on transparency in matters of public concern

". policy of full public disclosure of government transactions (Art. II, Sec. 28)
$. right to information on matters of public concern (Art. III, Sec. 7)
○ check leonen dissent, health of President
%. access to the records and books of account of the Congress (Art. VI, Sec. 20)
&. submission of Statement of Assets, Liabilities, and Net worth (Art. XI, Sec. 17)
'. access to information on foreign loans obtained or guaranteed by the
government (Art. XII, Sec. 21)

Doctrine of Incorporation
– rules of International Law form part of the law of the land and no legislative
action is required to make them applicable in a country
– Philippines is bound by generally accepted principles of international law,
which are considered to be automatically part of our own laws
 ○ applicable in PH

Doctrine of Transformation
– generally accepted rules of international law are not per se binding upon the
State but must first be embodied in legislation enacted by the lawmaking body
and so transformed into municipal law

SOVEREIGNTY
– supreme and uncontrollable power inherent in a State by which the State is
governed
– characteristics:
". permanent
$. exclusive
%. comprehensive
&. absolute
'. indivisible
(. inalienable
o. imprescriptible
– distinction between imperium and dominium
○ imperium: stateʼs authority to govern
◆ includes passing laws governing a territory, maintaining peace and
order over it, and defending it against foreign invasion
○ dominium: capacity of the state to own or acquire property
– Doctrine of Auto Limitation
○ while sovereignty has traditionally been deemed absolute and all-
encompassing on the domestic level, it is subject to restrictions and
limitations voluntarily agreed to by the Philippines, expressly or impliedly
as a member of the family of nations
◆ e.g. doctrine of incorporation
○ Tanada vs Angara; limitations on sovereignty:
◆ imposed by the very nature of membership in the family of nations
◆ imposed by treaty stipulations
– civilian supremacy: civilian authority is, at all times, supreme over the military
○ relevant Constitutional provisions:
". by the installation of the President, the highest civilian authority, as
the commander-in-chief of all the AFP (Art. VII, Sec. 18)
$. Through the requirement that members of the AFP swear to uphold
and defend the Constitution

STATE IMMUNITY
– The State may not be sued without its consent (Art. XVI, Sec. 3)
– all states are sovereign equals and cannot assert jurisdiction over one another,
consonant with the public international law principle of par in parem non habet
 –

imperium
○ includes head of the State
○ public officials, for acts done in the performance of their official functions
or within the scope of their authority
◆ if the judgment against such will require the state itself to perform an
affirmative act to satisfy the same, the suit may be regarded as
against the state itself
– exception:
". officer is charged in his official capacity for acts that are
unlawful and injurious to the rights of others, or in bad faith
$. officer is being sued not in his official capacity but in personal
capacity, although acts may have been committed while
occupying a public position

Exception to State Immunity from suit

– a State may be sued if it gives consent, whether express or implied
○ waiver of State immunity under the VFA pertains only to criminal
jurisdiction; applicable only to US personnel under VFA and not to special
civil actions such as a petition for issuance of a writ of Kalikasan
○ remedy against acts of foreign govt: ask his own government to espouse
his cause through diplomatic channels

Forms of consent
". express (embodied in a duly enacted statute)
○ General law
◆ Act No. 3083 and CA 327 as am. by S. 49-50, PD 1445
– money claims arising from contracts which could serve as a basis
of civil action between private parties to be first filed with COA
before filed in court
– COA must act upon the claim within 60 days
– rejection of the claim authorizes the claimant to elevate the matter
to the SC on certiorari
◆ Art. 2180, NCC
– tort committed by special agent
◆ Art. 2189, NCC
– LGUs liable for injuries or death caused by defective condition of
roads or public works under their control (jur)
◆ Sec. 22(2), RA 7160, LGC of 1991
– LGUs have power to sue and be sued
◆ Sec. 24 of LGC
– LGUs and their officials are not exempt from liability for death or
injury or damage to property
○ Special law
 ◆ PD 1620
– an express waiver by IRRIʼs Director General is the only way by
which it may relinquish or abandon immunity
$. Implied consent
○ when State commences litigation, it becomes vulnerable to counterclaim
○ when State enters into a business contract

Capacities of the State when entering into contracts

". in jure gestionis
– by right of economic or business relations; commercial or proprietary acts
– may be sued
– Restrictive Theory of State Immunity: State may be said to have
descended to the level of an individual and can thus be deemed to have
tacitly given its consent to be sued only when it enters into business
contracts
$. in jure imperii
– by right of sovereign power and in the exercise of sovereign functions
– no implied consent to be sued
– note: in expropriation, where property has been taken without the
payment of just compensation, the defense of immunity from suit cannot
be set up in an action for payment by owner

Rules on liability
– by consenting to be sued, State does not necessarily admit that it is liable
○ rule on liability of the ff:
". public officers, by their acts without or in excess of jurisdiction
◆ any injury caused by him is his own personal liability and cannot
be imputed to the State
◆ illegal acts of government agents do not bind the State;
government is never estopped from questioning the acts of its
officials, more so if they are erroneous or irregular
$. government agencies
◆ establish whether or not the State has given its consent
%. government
◆ doctrine of State immunity is available

When is a suit considered against the State

". Republic is sued by name
$. suit is against an unincorporated government agency performing propriety
functions
○ governmental functions: immunity is upheld
○ for incorporated government agencies: test of suability depends on their
charters
 %. suit is on its face against an officer, but the ultimate liability will belong to the
government

Rule on garnishment and interests

– government funds are not subject to garnishment
– EXCEPTION:
○ law or ordinance has been enacted appropriating a specific amount to pay
a valid government obligation
○ funds belonging to government corporations, which: can sue and be sued;
deposited with a bank
– government cannot be made to pay interest
– EXCEPTION:
". exercise of the power of eminent domain
$. erroneous collection of taxes
%. government agrees to pay interest pursuant to law

SEPARATION OF POWERS
Doctrine of Separation of Powers
– legislation belongs to the Congress, implementation to the executive, and
settlement of legal controversies and adjudication of rights to the judiciary
– each is prevented from invading the domain of the others

Purposes
". secure action
$. forestall over-action
%. prevent despotism
&. obtain efficiency

Principle of Blending of Powers

– an instance when powers are not confined exclusively within one department
but are assigned to or shared by several departments
– examples:
". power of appointment: can be exercised by each department over its own
administrative personnel
$. General Appropriations Law – President prepares the budget which serves
as the basis of the bill adopted by Congress
%. amnesty granted by President requires the concurrence of the majority of
all the members of the Congress
&. power of the COMELEC to deputize law enforcement agencies and
instrumentalities of the government for the purpose of ensuring free,
orderly, honest, peaceful and credible elections

CHECKS AND BALANCES

 – allows one department to resist encroachments upon its prerogatives, or to
rectify mistakes or excesses committed by the other departments
– test whether a power has been validly exercised: whether the power has been
constitutionally conferred upon the department claiming its exercise
○ EXCEPTION: Doctrine of Necessary Implication
◆ exercise of the power may be justified in the absence of an express
conferment, because the grant of express power carried with it all
other powers that may be reasonably inferred from it

Executive check
". to legislative - through veto power
$. to judiciary
– through power of pardon: may set aside the judgment of the judiciary
– power of appointment: appoint members of the Judiciary

Legislative check
". to executive
– override the veto of the President
– reject certain appointments made by the president
– revoke the proclamation of martial law or suspension of the privilege of
the writ of habeas corpus
– impeachment
– determine the salaries of the president or vice president
$. to judiciary
– revoke or amend the decisions by either:
◆ enacting a new law
◆ amending the old law, giving it certain definition and interpretation
– impeachment of SC members
– define, prescribe, apportion jurisdiction of lower courts:
◆ prescribe qualifications of lower court judges
◆ impeachment
◆ determination of salaries of judges

Judicial check
– SC may declare acts of both the legislature and executive as unconstitutional
or invalid so long as there is grave abuse of discretion amounting to lack or
excess of jurisdiction

DELEGATION OF POWERS
Non-delegation of power
– a delegated power cannot be re-delegated
– a further delegation, unless permitted by the sovereign power, would
constitute a negation of duty in violation of the trust reposed in the delegate
 –

mandated to discharge it directly

Permissible delegations
". delegation to the People through initiative and referendum
$. emergency powers delegated by Congress to the President
○ Requisites:
◆ there must be war or other national emergency
◆ delegation is for a limited period only
◆ subject to restrictions as Congress may prescribe
◆ emergency powers must be exercised to carry a national policy
declared by Congress
○ different from the power of President to declare a state of national
emergency, which does not require delegation
%. Congress may delegate Tariff powers to the President
○ Tariff and Customs Code is the enabling law that grants such powers
&. delegation to administrative bodies
○ power of subordinate legislation/quasi-legislative powers
○ since Congress cannot provide for these due to lack of opportunity or
competence
○ includes making of supplementary rules and regulations
'. delegation to local governments: grant of authority to prescribe local
regulations

Tests to determine validity of delegation of legislative power (Defensor-Santiago

vs COMELEC)
". Completeness Test
○ the law must be complete in all essential terms and conditions when it
leaves the legislature, so that there will be nothing left for the delegate to
do when it reaches him except to enforce it
$. Sufficient Standard Test
○ fixes a standard, limits of which are sufficiently determinate, or at least
determinable to which the delegate must conform in the performance of
his functions
○ maps out boundaries of the delegateʼs authority and indicating the
circumstances under which it is to be pursued and effected

FUNDAMENTAL POWERS OF THE STATE

– to be exercised generally by the Legislature
– may be delegated to:
○ President
○ administrative agencies
○ local government units
○ quasi-public corporation (only eminent domain)
Police power
Concept
– power of the state to promote public welfare by restraining and regulating the
use of liberty and property
– most pervasive, the least limitable, and most demanding of the three
fundamental powers
– justification is found in the Latin maxims salus populi est suprema lex (the
welfare of the people is the supreme law) and sic utere tuo ut alienum non
laedas (so use your property as not to injure the property of others)
– rests upon public necessity and upon the right of the State and of the public
to self-protection; expands and contracts with the changing needs

Aspects
". public health
$. public morals
%. public safety
&. public welfare

Requisites for valid exercise (NTC v Phil Veterans)

". Lawful subject
○ interests of the public generally, as distinguished from those of a
particular class, require the exercise of the police power
◆ jur. when private property is used for a public purpose and is affected
with public interest, it ceases to be juris privati only and becomes
subject to regulation
$. Lawful means
○ means employed are reasonably necessary for the accomplishment of the
purpose and not unduly oppressive upon individuals
◆ jur. personal rights and those pertaining to private property will not be
permitted to be arbitrarily invaded
◆ must also be evident that no other alternative for the accomplishment
of the purpose less intrusive of private rights can work

Requisites for valid exercise of police power by delegate

". express grant by law
○ MMDA cannot exercise police powers, no express grant
$. must not be contrary to law
%. within territorial limits of LGUs
○ except: when exercised to protect water supply (jur)

Eminent domain
Concept
 – power of the sovereign state to take, or to authorize the taking of private
property for public use without the ownerʼs consent, conditioned upon
payment of just compensation

Conditions for the exercise of eminent domain

". taking of private property
$. for public use
%. payment of just compensation
&. observance of due process
○ there must be a valid offer to buy the property and refusal of said offer

Requisites for valid taking

". expropriator must enter a private property
$. entry must be for more than a momentary period
%. must be under warrant or color of legal authority
&. property must be devoted to public use or otherwise informally appropriated
or injuriously affected
'. utilization of property must be in such a way as to oust the owner and deprive
him of beneficial enjoyment of the property

Nature of property to be taken

– all private property capable of ownership, including services
○ except: money, choses in action

Requisites before LGU can exercise right of eminent domain

". ordinance is enacted by the local legislative council authorizing the local chief
executive to exercise the power of eminent domain or pursue expropriation
proceedings over a particular private property
$. power of eminent domain is exercised for public use, purpose or welfare, or for
the benefit of the poor and the landless
%. there is payment of just compensation
&. a valid and definite offer has been previously made to the owner of the
property sought to be expropriated, but said offer was not accepted

Public use
– does not necessarily mean “use by the public at large”
– whatever may be beneficially employed for the general welfare satisfies the
requirement
– notion of public use now includes the broader notion of indirect public benefit
or advantage (vicarious advantage)

Just compensation
– full and fair equivalent of the property taken from the private owner (ownerʼs
 –
loss) by the expropriator
– FMV + consequential damages (damages to the other interest of the owner
attributed to the expropriation) - consequential benefits (increase in the value
of other interests attributed to new use of the former property)
– period to determine: at the date of the filing of the complaint
○ except: at time of taking, where filing occurs after actual taking and owner
would be given undue incremental advantages
– owner is entitled to payment of interest from the time of taking until just
compensation is actually paid to him
○ including taxes paid by him from time of the taking until transfer of title
– constitutional mandate

Effect of abandonment of intended use of property expropriated

– if expropriator failed to use the property pursuant to the purpose stated in the
petition, it should file another petition for the new purpose
– If not, expropriator should return the said property to its private owner, if the
latter desires to reacquire the same
– cause: absence of essential element of public use

Taxation
What are taxes
– enforced proportional contributions from persons and property, levied by the
State by virtue of its sovereignty for the support of the government and public
needs

Tax vs license fee

– tax is levied in exercise of taxation power; whereas license is imposed in
exercise of police power
– the purpose of tax is to generate revenues; whereas license is primarily for
regulatory purposes

Concept of taxation
– process by which the government, through its legislative branch, imposes and
collects revenues to defray the necessary expenses of the government, and to
be able to carry out, in particular, any and all projects that are supposed to be
for the common good
– includes the power to destroy
○ only if used as a valid implement of the police power in discouraging and
prohibiting certain things or enterprises inimical to public welfare
– obligation based on law

Scope of legislative discretion

". whether to tax in the first place
 $. whom or what to tax
%. for what public purpose
&. amount or rate of the tax

Limitations on the power of taxation

– inherent
". public purpose
$. non-delegability
%. territoriality or situs of taxation
&. exemption of government from taxation
'. international comity
– Constitutional
". due process of law
$. equal protection clause
%. uniformity, equitability and progressive system of taxation
◆ uniformity: operates with same force and effect in every place where
the subject is found
◆ progressive: tax rate increases as the tax base increases
&. non-impairment of contracts
'. non-imprisonment for non-payment of poll tax
(. revenue and tariff bills must originate in the House of Representatives
o. non-infringement of religious freedom
s. delegation of legislative authority to the President to fix tariff rates,
import and export quotas, tonnage and wharfage dues
t. tax exemption of properties actually, directly and exclusively used for
religious, charitable and educational purposes
"u. majority vote of all the members of Congress required in case of
legislative grant of tax exemptions
"". non-impairment of SCʼs jurisdiction in tax cases
"$. tax exemption of revenues and assets of, including grants, endowments,
donations or contributions to educational institutions

Double taxation
– taxing the same property twice when it should be taxed only once
– taxing the same person twice by the same jurisdiction for the same thing
– direct duplicate taxation
○ two taxes must be imposed on the same subject matter
○ for the same purpose
○ by the same taxing authority
○ within the same jurisdiction
○ during the same taxing period
○ of the same kind or character
Tax Exemptions
– either constitutional or statutory
– strictly construed against the taxpayer
– revocability
". if granted gratuitously – revocable
$. if granted for valuable consideration – irrevocable

NATIONAL TERRITORY
Territory
– fixed portion of the surface of the Earth inhabited by the people of the State
– an element of a State
– area over which a state has effective control

Composition of Philippine Territory

". The Philippine archipelago
○ body of water studded with islands which is delineated in the Treaty of
Paris, as amended by the Treaty of Washington and the Treaty with Great
Britain
○ consists of:
◆ terrestrial
◆ fluvial
◆ aerial domains
○ including:
◆ territorial sea
◆ seabed
◆ subsoil
◆ insular shelves
◆ other submarine areas
$. All other territories over which the Philippines has sovereignty or jurisdiction
○ any territory that presently belongs or might in the future belong to the
Philippines through any of the accepted international modes of acquiring
territory

Rule regarding embassies

– foreign embassies are subject to Philippine authorities
– ground occupied by an embassy is not in fact the territory of the foreign State
(jur)
○ the lawfulness or unlawfulness of acts committed therein is determined by
the territorial sovereign

Archipelagic Doctrine
– waters around, between, and connecting the islands of the archipelago,
regardless of their breadth and dimensions, form part of the internal waters of
 –

the Philippines
○ connect the outermost points of our archipelago with straight baselines
and consider all the waters enclosed thereby as internal waters
○ RA 3046 as am. by RA 9522; defines the baselines of territorial sea of
Philippines
○ Spratlys and Scarborough shoal fall under #2 of composition of territory of
PH

LEGISLATIVE DEPARTMENT

LEGISLATIVE POWER
Scope and limitations
– power to propose, enact, amend and repeal laws

Limitations
– substantive
○ express:
". Bill of Rights
$. on Appropriations
%. on Taxation
&. on Constitutional appellate jurisdiction of SC
'. no law granting a title of royalty or nobility shall be enacted
(. no specific funds shall be appropriated or paid for use or benefit of
any religion, sect
◆ except for priests etc., assigned to AFP, penal institutions, etc.
○ implied:
". prohibition against irrepealable laws
$. non-delegation of powers
– procedural
○ only one subject, to be stated in the title of the bill
○ 3 readings on separate days
◆ printed copies of the bill in its final form to be distributed to its
members 3 days before its passage
– except if President certifies to its immediate enactment to meet a
public calamity or emergency
◆ upon last reading, no amendment shall be allowed
◆ vote thereon shall be taken immediately
◆ yeas and nays entered into the Journal
○ appropriation bills, revenue bills, tariff bills, bills authorizing the increase
of public debt, bills of local application and private bills shall originate
exclusively in HOR
Principle of non-delegability; exceptions
– see discussion on delegation of powers (1st H.O.)

CHAMBERS OF CONGRESS; COMPOSITION;

QUALIFICATIONS

Senate
– 24 senators elected at large
– qualifications:
". natural-born citizen
$. at least 35 years on the day of election
%. able to read and write
&. registered voter
'. resident of PH for not less than 2 years immediately preceding day of
election
– term is 6 years
– shall not serve more than 2 consecutive terms
○ voluntary renunciation shall not be considered as interruption

House of Representatives
– not more than 250 members, consisting of:
○ district representatives
○ party-list representatives
– qualifications:
○ natural-born citizen
○ at least 25 years on the day of election
◆ except youth party-list representatives
○ able to read and write
○ registered voter in the district in which he shall be elected
◆ except for party-list
○ resident in the district for a period not less than 1 year immediately
preceding day of election
– term is 3 years
– shall not serve more than 3 consecutive terms

District representatives and questions of apportionment

– those who are elected from legislative districts apportioned among provinces,
cities, MM area
– each city with a population of at least 250k / a province shall at least have one
representative
○ province need not have 250k population
 ○city that has just attained 250k population is entitled to a district only in
the immediately following election
○ each district shall comprise, as far as practicable, contiguous, compact
and adjacent territory
◆ prevention of gerrymandering
– formation of 1 legislative district out of separate territories for the
purpose of favoring a candidate or a party
– questions on validity of an apportionment law is a justiciable question
○ reapportionment may be made thru a special law
○ does not require a plebiscite for creation of a district through
reapportionment
○ power to increase membership in Congress and reapportion cannot be
delegated

Party-list system
– mechanism of proportional representation in the election of representatives to
the HoR from national, regional and sectoral parties or organizations or
coalitions registered with the COMELEC
– party-list representatives shall constitute 20% of total number of
representatives in HOR

How to participate in party-list system:

– register by filing a verified petition with COMELEC not later than 90 days
before election
– verified by its president or secretary stating its desire to participate in the
party-list system as a national, regional or sectoral party or organization or
coalition
○ for already registered, file a manifestation not later than 90 days
– grounds for refusal or cancellation:
". it is a religious sect or denomination etc. organized for religious purposes
$. advocates violence or unlawful means to seek its goal
%. it is a foreign party or organization
&. receiving support from any foreign entity or govt, whether directly or
indirectly, for partisan election purposes
'. violates or fails to comply with laws, rules, regulations relating to elections
(. declares untruthful statements in petition
o. ceased to exist for at least one year
s. failed to participate in the last 2 preceding elections
t. failed to obtain at least 2% votes cast in the 2 preceding elections for
constituency in which it was registered

Guidelines in determining who may participate in party-list elections (Atong

paglaum case)
". 3 different groups may participate:
○ National
○ Regional
◆ regional and national parties do not need to organize along sectoral
lines; do not need to represent any marginalized an underrepresented
sector
○ Sectoral parties or organizations
◆ majority of the members must belong to sector they represent
◆ may either represent:
– marginalized and underrepresented
◆ labor, peasant, fisherfolk, urban poor, indigenous cultural
communities, handicapped, veterans, and overseas workers
– lacking in well-defined political constituencies
◆ professionals, the elderly, women, and the youth
○ Political parties, only if:
◆ they register under the party-list system
◆ do not field candidates in legislative district
– if they field candidates in legislative district elections
◆ can only participate only through its sectoral wing that must
separately register under the party-list system
$. as to nominees
○ national and regional: must be bona-fide members
○ sectoral:
◆ must belong to their respective sectors, OR
◆ must have a track record of advocacy of their respective sectors
○ qualifications:
◆ natural born citizen
◆ registered voter
◆ resident of PH for at least 1 year immediately preceding day of
elections
◆ able to read and write
◆ bona fide member of the party or organization which he seeks to
represent at least 90 days preceding election day
◆ at least 25 years of age
– for youth sector nominees, 25-30yrs old only
○ if some of their nominees are disqualified, party is not DQʼd, provided
◆ they have at least 1 nominee who remains qualified
○ any elected party-list representative who changes his party-list group or
sectoral affiliation during his term shall forfeit his seat
◆ change of political party or sectoral affiliation within 6 months before
an election
– not be eligible for nomination as party-list representative under
new party or organization
 ◆ in case of vacancy, shall be automatically occupied by next
representative from list of nominees submitted to COMELEC

Formula in allocation of additional seats to party-list groups

– number of seats available to party-list representatives
○ based on the ratio of party-list representatives to the total number of
representatives
○ (# of seat available to legis districts / 0.8) x 0.20 = number of seats
available
– after determining the number of seats, follow the ff guidelines (S.11, RA 7941)
". parties, organizations, and coalitions shall be ranked from the highest to
the lowest based on the number of votes they garnered during the
elections
$. those receiving at least 2% of total votes cast for the party-list system
shall be entitled to one guaranteed seat each
%. those garnering sufficient number of votes, according to the ranking in #1,
shall be entitled to additional seats in proportion to their total number of
votes until all the additional seats are allocated
◆ 2% threshold inapplicable for additional seats
◆ computation of additional seats (whole integers)
– % of votes garnered by party-list is multiplied by the available
seats (avail seats = max reserved - guaranteed seats)
&. each party, organization, or coalition shall be entitled to not more than 3
seats

LEGISLATIVE PRIVILEGES, INHIBITIONS, AND

DISQUALIFICATIONS
– immunity from arrest
○ congressmen shall be privileged from arrest with respect to offenses
punishable by not more than 6 years, while Congress is in session
○ they may still be charged
– legislative privilege
○ no member shall be questioned or held liable in any forum other than his
respective Congressional body for any debate or speech in Congress or in
any committee
○ protection shall apply only on an outside forum (not against Congress
itself)
○ speech or debate must be made in the performance of duty, while in
session
◆ congress still considered in session if recess is between a regular or
special session; not if it is the 30 days compulsory recess

Inhibitions
 ". from “personally” appearing as counsel before any court of justice or before
the Electoral Tribunals, or quasi-judicial or other administrative bodies
○ during his term of office
$. upon assumption of office, all members of the Congress must make a full
disclosure of their financial and business interests
○ notify the House concerned of a potential conflict in interest that may
arise from filing of a proposed legislation of which they are authors
○ during term
%. cannot intervene in any matter before any office of the govt
○ for his pecuniary benefit
○ where he may be called upon to act on account of his office

Disqualification
". incompatible office
○ may not hold any other office or employment in the Government, during
his term without forfeiting his seat
○ except: if holds the other office in ex-officio capacity
$. forbidden office
○ cannot be appointed to any office which have been created, or the
emoluments thereof increased during the term for which he was elected
◆ allowed only after term, or upon re-election
○ even if he is willing to forfeit his seat, he may not be appointed

QUORUM AND VOTING MAJORITIES

– quorum: number which enables a body to transact its business and gives such
body the power to pass a law or ordinance or any valid act that is binding
– members of Congress outside of the country shall not be included in
computing a quorum
○ only the total of those within the jurisdiction of the State
○ cannot compel absent members to attend sessions if reason of absence is
legitimate
– where yeas and nays required to be taken
". upon last and third readings of a bill
$. at the request of 1/5 of the members present
%. in repassing a bill over the veto of the President
– instances when Congress is voting separately
". choosing the President in case of a tie
$. determining Presidentʼs inability to discharge the powers and duties of his
office
%. confirming nomination of Vice-President
&. declaring the existence of a state of war in joint session
'. proposing Constitutional amendments
– instances when Congress is voting jointly
 ". when revoking or extending the proclamation suspending the privilege of
writ of habeas corpus
$. when revoking or extending the declaration of martial law

Voting majorities
– majority of Congress
". elect the Senate President or House of Representatives Speaker
$. Commission on Appointments ruling
%. passing a law granting any tax exemption
&. election of officers
– other than majority
". to suspend or expel a member in accordance with its rules and
proceedings: 2/3 of all its members
$. to enter the Yeas and Nays in the Journal: 1/5 of members present
%. to declare the existence of a state of war: 2/3 of both houses in joint
session voting separately

DISCIPLINE OF MEMBERS
– a political question
– each house may punish its members for disorderly behavior
– may suspend (not more than 60 days) or expel a member
○ with concurrence of 2/3 of all its members
– may also be suspended by the Sandiganbayan or by the Office of the
Ombudsman
○ suspension prescribed under RA 3019 (this is mandatory)
○ not a penalty but a preliminary preventive measure
○ precautionary measure to prevent the accused public officer from
frustrating his prosecution
○ incidental to the criminal proceedings before the court

PROCESS OF LAW-MAKING
". proposals and suggestions will come from the President, government
agencies, private individuals, interest groups and legislators
$. a bill will be filed with Secretary General of either House (HB) or Senate (SB)
%. first reading
○ reading of the title/author
○ referral to appropriate committee
○ committee will study and recommend
○ if favorable, a report will be submitted through Committee of Rules
◆ if unfavorable, Bill is laid on the table
◆ author shall be informed
○ Committee on rules will include the Bill in the calendar of business
&. second reading
 ○ sponsorship
○ period of debate
○ period of amendments
○ after these 3, there shall be a voting
○ if favorable, calendar for third reading
◆ if unfavorable, transmit to archives
'. third reading
○ distribution of Bill in final form
○ roll call vote
○ if approved, transmittal for action to the other house
◆ if disapproved, transmit to archives
(. the other house shall go through step #3-5
o. in case of conflicting provisions, a Bicameral Conference Committee is
constituted to reconcile differences
s. ratification of conference committee report
○ bill shall be printed in engrossed form
t. enrolment of Bill
"u. transmitted for presidential action, may either
○ approve
◆ shall take effect 15 days after publication in OG or in at least 2
national newspapers of general circulation
○ veto
◆ bill shall be returned to originating house with explanation
– house may accept the veto, or
– override veto by 2/3 votes of both houses
◆ shall take effect after publication
○ no action
◆ 30 days after receipt, Bill lapses into law
◆ shall take effect after publication

ELECTORAL TRIBUNALS AND THE COMMISSION ON

APPOINTMENTS
Nature
". Electoral Tribunal
○ composition:
◆ 3 SC justices, designated by CJ
◆ 6 members of Chamber concerned, chosen on the basis of
proportional representation from political parties and parties under
party-list system
○ non-partisan court
○ independent from Congress
 ◆decisions are reviewable by SC under R.65
○ enjoys security of tenure
◆ may not be terminated except for a just cause
– expiration of Congressional term of office
– death or permanent disability
– resignation from the political party he represents in the tribunal
– formal affiliation with another political party
– removal from office for other valid reasons
$. Commission on Appointments
○ composition:
◆ Senate President as ex-officio chairman
◆ 12 Senators
– a political party must have at least 2 senators to be able to have a
representative in CA
◆ 12 members of the HoR
◆ not mandatory to fill all members, only required is majority
○ independent of the Congress
◆ Congress cannot by law prescribe that the appointment of a person to
an office created by such be subject to confirmation by CA

Powers
". Electoral Tribunal
○ sole judge of all contests relating to the election, returns, and
qualifications of their respective members
◆ only after the winning candidate have beed duly proclaimed, taken
oath, assumed functions of office
○ pass upon qualifications of party-list nominees after proclamation and
assumption of office
○ rule-making power
$. Commission on Appointments
○ confirms or rejects appointments made by the President, to wit:
◆ heads of the Executive departments
– Vice-President who is appointed to the post
◆ ambassadors, other public ministers, or consuls
◆ officers of the AFP from the rank of colonel or naval captain
◆ other officers whose appointments are vested in him by the
Constitution
○ rules on appointments extended by President to the above-mentioned
while Congress is not in session
◆ only effective until disapproval by the CA or until the next adjournment
of Congress
○ rules on voting
◆ CA shall rule by a majority vote of all the members
 ◆ chairman shall only vote in case of tie
◆ CA shall act on all appointments within 30 session days from their
submission to Congress

POWERS OF CONGRESS
– general plenary power
– specific power of appropriation
– taxation and expropriation
– legislative investigation
– question hour

Legislative inquiries and oversight functions

Legislative inquiries
– Senate, HOR or any of its respective committees may conduct inquiries in aid
of legislation in accordance with its duly published rules of procedure
○ rights of persons appearing in, or affected by, such inquiries shall be
respected
○ every Congress must publish its rules of procedure
◆ senate: upon expiry of term of 12 senators
○ congress may not summon President except in impeachment cases
○ may no longer punish the witness in contempt after its final adjournment
◆ if incarcerated by Senate, it is indefinite because the Senate, with its
staggered terms as an institution, is a continuing body
○ may no longer inquire into the same justiciable controversy already before
the court
– scope: indefinite; field of inquiry is very broad and may cover administrative,
social, economic, political problem (inquiries), discipline of members, etc.
– “in aid of legislation” does not mean that there is pending legislation regarding
the subject of the inquiry
○ if purpose of investigation is to determine existence of violations, it is in
aid of prosecution, and beyond scope of powers
– appearance by dept heads is mandatory
○ unless of President, or Executive Secretary, acting for the President
– different with question hour:
○ heads of departments may appear before and be heard by such House on
any matter pertaining to their departments
◆ upon their own initiative, with consent of President, or upon the
request of either House, as provided by the rules of each House
○ this is in pursuit of oversight functions

Oversight functions
– all activities undertaken by Congress to enhance its understanding of and
 –
influence over the implementation of legislation it has enacted
– scope:
". monitor bureaucratic compliance with program objectives
$. determine whether agencies are properly administered
%. eliminate executive waste and dishonesty
&. prevent executive usurpation of legislative authority
'. assess executive conformity with the congressional perception of public
interest
– categories:
". scrutiny
◆ to determine economy and efficiency of the operation of government
activities
◆ may request information and report from the other branches of
government and give recommendations or pass resolutions for
consideration of the agency involved through:
– Power of appropriation and budget hearing
– Question Hour
– Power of Confirmation
$. Congressional Investigation
◆ more intense digging of facts through inquiries in aid of legislation
%. Legislative Supervision
◆ connotes a continuing and informed awareness on the part of
congressional committee regarding executive operations in a given
administrative area
◆ allows Congress to scrutinize the exercise of delegated law-making
authority
– legislative veto is unconstitutional

Non-legislative
Informing function
– conduct legislative inquiries and investigation and its oversight power
– auxiliary power to ensure that the laws it enacts are faithfully executed

Power of impeachment
– impeachment: method by which persons holding government positions of high
authority, prestige, and dignity and with definite tenure may be removed from
office for causes closely related to their conduct as public officials
– impeachable officers:
". President
$. Vice-President
%. Members of the Supreme Court
&. Members of the Constitutional Commissions
'. Ombudsman
– grounds:
". Culpable violation of the Constitution
◆ wrongful, intentional or willful disregard or flouting of the fundamental
law
$. Treason
%. Bribery
&. Graft and Corruption
'. Other high crimes
(. Betrayal of public trust
◆ acts which are just short of being criminal but constitute gross
faithlessness against public trust, tyrannical abuse of power,
inexcusable negligence of duty, favoritism, and gross exercise of
discretionary powers
– steps in impeachment process:
○ initiating impeachment case
". verified complaint filed by any member of the HOR or any citizen upon
resolution of endorsement by any member of HOR
◆ If filed by at least 1/3 of all members of HOR, the same shall constitute
the Articles of Impeachment, and trial by the Senate shall forthwith
proceed
$. inclusion in the order of business within 10 session days
%. referred to the proper committee within 3 session days from inclusion
&. committee, after hearing, and by majority vote of all its members, shall
submit its report to HOR together with the corresponding resolution
'. Placing on calendar the Committee resolution within 10 days from
submission;
(. discussion on the floor of the report
o. vote of at least 1/3 of all the members of HOR shall be necessary
◆ either to affirm a favorable resolution with the Articles of
Impeachment
◆ override its contrary resolution
○ Trial and Decision in impeachment proceedings
". Senators take an oath or affirmation
◆ when the President shall be impeached, the Chief Justice shall
preside, otherwise the Senate President shall preside
$. a decision of conviction must be concurred in by at least 2/3 of all the
members of Senate
– when initiated? takes place by the act of filing of the impeachment complaint
and referral to the House Committee on Justice
○ one-year bar rule: another complaint may not be filed against the same
official within a 1 year
– effects of conviction in impeachment
". removal from office
 $. disqualification to hold any other office under the Republic
%. party convicted shall be liable and subject to prosecution, trial and
punishment according to law

INITIATIVE AND REFERENDUM

– initiative:
○ power of the people to propose amendments to the Constitution or to
propose and enact legislation
○ kinds:
". Initiative on the Constitution – refers to a petition proposing
amendments to the Constitution
$. Initiative on statutes – refers to a petition to enact a national
legislation
%. Initiative on local legislation – refers to a petition proposing to enact a
regional, provincial, municipal, city, or barangay law, resolution or
ordinance
○ modes:
". Indirect Initiative – exercise of initiative by the people through a
proposition sent to Congress or local legislative body for action
$. Direct Initiative – people themselves filed the petition with COMELEC
and not with Congress
○ ra 6735 is inadequate in covering system of initiative on amendments to
Constitution
◆ only detailed process for initiatives on national and local laws
– referendum:
○ power of the electorate to approve or reject legislation through an election
called for that purpose
○ kinds:
". referendum on Statutes - refers to a petition to approve or reject a
law, or part thereof, passed by Congress
$. referendum on Local Law – refers to a petition to approve or reject a
law, resolution or ordinance enacted by regional assemblies and local
legislative bodies
– ff. cannot be subject of initiative and referendum
". no petition embracing more than 1 subject shall be submitted to the
electorate.
$. statutes involving emergency measures cannot be subject to referendum
until 90 days after their effectivity

EXECUTIVE DEPARTMENT

QUALIFICATIONS, ELECTION, AND TERM OF THE

PRESIDENT AND VICE-PRESIDENT
– qualifications:
". natural-born citizen of PH
$. registered voter
%. able to read and write
&. at least 40 years of age on the day of the election
'. resident of PH for at least 10 years immediately preceding such election
– election:
○ elected by direct vote of the people
○ shall not be eligible for any re-election
◆ except for VP, may serve for more than 2 successive terms
○ Congress shall be the canvassing board for returns of election for
President and VP
– term of office:
○ 6 years
○ no person who has succeeded as President and has served as such for
more than 4 years shall be qualified for election to the same office at any
time

PRIVILEGES, INHIBITIONS, AND DISQUALIFICATIONS

Presidential immunity
– President is immune from suit during his incumbency
– rules:
○ during tenure
". President is immune from suit during his tenure
$. an impeachment complaint may be filed against him during his tenure
%. President may not be prevented from instituting suit
&. there is nothing in our laws that would prevent the President from
waiving the privilege
'. heads of departments cannot invoke the Presidentʼs immunity
○ after tenure
◆ once out of office, even before the end of the 6-year term, immunity
for non-official acts is lost
◆ cannot be claimed to shield a non-sitting President from prosecution
for alleged criminal acts done while sitting in office
– principle of command responsibility
○ superior is made responsible for crimes committed by his subordinates for
failing to prevent or punish the perpetrators
○ elements:
". existence of a superior-subordinate relationship between the accused
as superior and the perpetrator of the crime as his subordinate
 $. superior knew or had reason to know that the crime was about to be
or had been committed
%. superior failed to take the necessary and reasonable measures to
prevent the criminal acts or punish the perpetrators thereof
○ president may be held accountable under this principle; being the
commander-in-chief, he possesses control over the military

Presidential privilege
– power of President and high-level executive branch officers to withhold
certain types of information from Congress, the courts, and ultimately the
public
– claim of the executive privilege may be valid or not depending on the ground
invoked to justify it and the context in which it is made
○ any executive issuance tending to unduly limit disclosures of information
in such investigations necessarily deprives the people of information
which, being presumed to be in aid of legislation, is presumed to be a
matter of public concern
– persons who can invoke:
". President
◆ President may not authorize subordinates to exercise such power
$. Executive Secretary, upon proper authorization from the President
◆ must state that the authority is “By order of the President”
– requirements in invoking the privilege
". there must be a formal claim of the privilege
$. claim has specific designation and description of the documents within its
scope and with the precise and certain reasons for preserving their
confidentiality
– kinds:
". State secret privilege: invoked by President on the ground that the
information is of such nature that its disclosure would subvert crucial
military or diplomatic objectives
$. Informerʼs privilege: privilege of the government not to disclose the
identity of persons who furnish information in violations of law to officers
charged with the enforcement of the law
%. Generic privilege for internal deliberation: attaches to intra-governmental
documents reflecting advisory opinions, recommendations and
deliberations comprising part of a process by which governmental
decisions and policies are formulated
&. Presidential communications privilege
◆ pertains to communications, documents or other materials that reflect
presidential decision-making and deliberations that the President
believes should remain confidential
◆ applies to decision-making of the President
 ◆ elements
– protected communication must relate to a “quintessential and
non-delegable presidential power”
– communication must be authored or “solicited and received” by a
close advisor of the President or the President himself; advisor
must be in “operational proximity” with the President
– remains a qualified privilege that may be overcome by a showing
of adequate need, such that the information sought “likely
contains important evidence” and by the unavailability of the
information elsewhere by an investigating authority
'. Deliberative process privilege
◆ includes advisory opinions, recommendations and deliberations
comprising part of a process by which government al decisions and
policies are formulated
◆ applies to decision-making of executive officials

Inhibitions and Disqualifications

– applies to President, VP, Cabinet members and deputies or assistants
– rules:
". shall not receive any other emolument from the government or any other
source
$. shall not hold any other office or employment during their tenure (S.13 Art.
VII), unless:
◆ otherwise provided in the Constitution (e.g. VP can be appointed as a
Cabinet Member without the need of confirmation by CA; Sec. of
Justice sits in the Judicial and Bar Council)
◆ positions are ex-officio and they do not receive any salary or other
emoluments therefore
– must not be construed as applying to posts occupied by the
Executive officials without additional compensation in an ex-
officio capacity, as provided by law and as required by the primary
functions of the said officialʼs office
%. shall not practice, directly or indirectly, any other profession during their
tenure
&. shall not participate in any business
'. shall not be financially interested in any contract with, or in any franchise,
or special privilege granted by the Government, including GOCCs
(. shall avoid conflict of interest in conduct of office
o. shall avoid nepotism

POWERS OF THE PRESIDENT

General executive and administrative powers
 – executive power
○ power to enforce and administer laws
○ control of all executive departments, bureaus and offices
○ faithful execution clause: President is not above the laws but is obliged to
obey and execute them
○ scope:
". executive power is vested in the President of the Philippines
$. not limited to those set forth in the Constitution
%. privilege of immunity from suit is personal to the President
– administrative power
○ power concerned with the work of applying policies and enforcing orders
as determined by proper governmental organs
○ enables the President to fix a uniform standard of administrative efficiency
and check the official conduct of his agents
◆ President has the continuing authority to reorganize the national
government, which includes the power to group, consolidate bureaus
and agencies, to abolish offices, to transfer functions, to create and
classify functions, services and activities and to standardize salaries
and materials

Power of appointment
In general
– selection of an individual who is to exercise the functions of a given office
– may be made verbally but it is usually done in writing (commission)e
– executive in nature; political question
– elements in making a valid, complete, effective appointment
". authority to appoint and evidence of exercise of the authority
$. transmittal of the appointment paper signed by the President and
evidence of the transmittal
◆ there should be evidence that the President intended the appointment
paper to be issued (MRO)
%. a vacant position at the time of appointment
◆ incumbent must first be legally removed, or appointment validly
terminated
&. receipt of the appointment paper and Acceptance by the appointee who
possesses all the qualifications and none of disqualifications
◆ possession of the original appointment paper is not indispensable to
authorize an appointee to assume office
– different from a designation: imposition of additional duties on a person
already in the public service
○ only acting or temporary; no security of tenure; temporary designation
cannot exceed 1 year
Limitations on the exercise/power
". spouse and relatives by consanguinity or affinity within the 4th civil degree of
the President shall not, during his “tenure” be appointed as:
○ members of the Constitutional Commissions
○ member of the Office of Ombudsman
○ secretaries
○ undersecretaries
○ Chairmen or heads of bureaus or offices, including government-owned or
controlled corporations and their subsidiaries
$. appointments made by acting-President shall remain effective unless revoked
within 90 days from assumption of office by elected President
%. 2 months immediately before the next Presidential elections (2nd Monday of
May), and up to the end of his “term” (June 30), a President, or Acting
President shall not make appointments
○ except: temporary appointments to executive positions, when continued
vacancies will prejudice public service

Types of appointment
". appointments made by an Acting President
$. midnight appointment
– prohibitions:
◆ those made for buying votes: those appointments made within 2
months preceding the Presidential election; similar to those which are
declared election offenses in OEC
◆ those made for partisan considerations: consists of the so-called
“midnight” appointments
– only applies to presidential appointments (not to judicial appointments)
◆ except if CSC issues rules and regulations prohibiting local chief
executives from making appointments during the last days of their
tenure
– appointment ban shall be applied to appointments made before or during
such ban
%. regular Presidential Appointments, with or without the confirmation by the CA
– appts. that need prior recommendation or nomination by JBC
◆ members of the Supreme Court and all lower courts
◆ Ombudsman and his 5 deputies
– appts that requires confirmation of CA
". heads of executive departments
◆ appointment of cabinet secretaries requires confirmation (except
VP as member of cabinet)
$. ambassadors, other public ministers and consuls
%. officers of AFP from the rank of colonel or naval captain
◆ PNP of equivalent ranks and the Philippine Coast Guard is not
 ◆
included
&. other officers of the government whose appointments are vested in
the President in the Constitution
◆ chairmen and members of the CSC, COMELEC and COA
◆ regular members of the JBC
– appointing procedure for those need CA confirmation (anytime before 4
steps, President can withdraw):
". nomination by the President
$. confirmation by the CA
%. issuance of commission
&. acceptance by the appointee
◆ for those that do not need confirmation only appointment and
acceptance
&. ad-interim Appointments
– power of the President to make appointments during the recess of
Congress
– shall be effective only until disapproval by the CA or until the next
adjournment of the Congress
– permanent in nature
◆ takes effect immediately and can no longer be withdrawn by Preside
– different from appointments in acting capacity which is temporary

Power of control and supervision

Doctrine of qualified political agency
– save in matters on which Constitution or circumstances require the President
to act personally, executive and administrative functions are exercised through
executive departments headed by cabinet secretaries, whose acts are
presumptively the acts of the President unless disapproved by the latter
– exceptions:
". acts are disapproved or reprobated by the President
$. President is required to act in person by law or by the Constitution
– acts of cabinet secretary is presumed to be of the President; remedy against
the act is a petition before the courts and not an appeal to the President

Executive departments and offices

– Department Heads may exercise power of control in behalf of the President
including the power to reverse the judgment of an inferior officer
○ SOJ may reverse the judgment of a prosecutor and direct him to withdraw
information already filed
○ Executive Secretary when acting “by authority of the President” may
reverse the decision of another department secretary

Local government units

 – power of the President over LGUs is only of general supervision
– can only interfere in the affairs and activities of a LGU if he finds that the latter
acted contrary to law
○ any directive seeking to alter the wisdom of a law-conforming judgment
on local affairs of a LGU is a patent nullity, because it violates the principle
of local autonomy and doctrine of separation of powers

Emergency powers
– Congress may grant the President emergency powers subject to the following
conditions:
". there is a war or other national emergency
◆ rebellion
◆ economic crisis
◆ pestilence or epidemic
◆ typhoon
◆ flood
◆ other similar catastrophe of nationwide proportions
$. grant of emergency powers must be for a limited period
%. grant of emergency powers is subject to such restrictions as Congress
may prescribe
&. emergency powers must be exercised to carry out a National policy
declared by Congress
– self-liquidating unless sooner withdrawn

Commander-in-chief powers
Calling out powers
– call the armed forces to prevent or suppress lawless violence, invasion, or
rebellion
– whenever it becomes necessary (discretionary)
○ declaration of a state of emergency gives no new power to President, nor
to the police; does not authorize warrantless arrests or control of media
○ does not require the President to declare a state of rebellion to exercise
her calling out power
– does not need any congressional authority for its exercise
– exclusively belongs to the President

Declaration of martial law and suspension of the privilege of the writ of habeas
corpus; extension
– joint power of President and Congress
– guidelines in declaration of martial law
". there must be an invasion or rebellion
$. public safety requires the proclamation of martial law all over the
Philippines or any part thereof
 %. duration: not more than 60 days; shall be automatically lifted unless
extended by Congress
&. duty of the President to report to Congress: within 48 hours personally or
in writing
'. authority of Congress to affirm or revoke or allow the lapse or extend the
effectivity of proclamation: by majority vote of all of its members voting
jointly (within 24 hours from proclamation)
– limitations:
". does not suspend the operation of the Constitution
$. does not supplant the functioning of the civil courts or legislative
assemblies
%. does not authorize conferment of jurisdiction over civilians where civil
courts are able to function
◆ civilians cannot be tried by military courts if the civil courts are open
and functioning (Open Court Doctrine)
&. does not automatically suspend the privilege of the writ of habeas corpus
– factual determination by President reviewable by SC if attended with grave
abuse of discretion
○ actual use of AFP is not subject to judicial review

Suspension of the privilege of the writ of habeas corpus

– what is suspended is the privilege, not the writ
○ writ: an order from the court commanding a detaining officer to inform the
court if he has the person in custody, and what his basis is in detaining
that person
○ privilege: portion of the writ requiring the detaining officer to show cause
why he should not be tested
– requisites:
". there must be an invasion or rebellion
◆ must be actual, not merely imminent
$. public safety requires the suspension
– limitations:
". applies only to persons judicially charged for rebellion or offenses inherent
in or directly connected with invasion
$. anyone arrested or detained during suspension must be charged within 3
days
◆ otherwise, he should be released
%. right to bail shall not be impaired
– constitutional validity of proclamation of martial law or suspension of the
privilege is first a political question in the hands of Congress before it
becomes a justiciable one in the hands of the Court

Extension
 – upon initiative of the President, the Congress may extend such proclamation
or suspension for a period to be determined by the Congress
○ if the invasion or rebellion shall persist and public safety requires it
○ Congress shall vote jointly; at least majority vote of all its Members for
extension
– Constitution does not specify the number of times that the Congress is
allowed to approve an extension of martial law or the suspension of the
privilege

Executive clemency
Nature and limitations
– pardon: an act of grace, which exempts individual on whom it is bestowed
from punishment, which the law inflicts for a crime he has committed
– discretionary
– non-delegable and must be exercised by President personally

Limitations
". can be granted only after convictions by final judgment
– amnesty
$. cannot be granted in cases of civil or legislative contempt
%. cannot absolve convict of civil liability
&. cannot be granted in cases of Impeachment
'. cannot be granted for violations of Election laws without favorable
recommendations of the COMELEC
(. cannot restore public offices forfeited

Forms of executive clemency

". pardons
– classification:
◆ absolute or conditional
– absolute: one extended without any conditions; totally
extinguishes criminal liability (must be accepted whether he likes
or not)
– conditional: one under which the convict is required to comply
with certain requirements (offender has right to reject)
◆ plenary or partial
– plenary: extinguishes all the penalties imposed upon the offender,
including accessory disabilities
– partial: does not extinguish all the penalties; partially extinguishes
criminal liability
– effect of grant from President
◆ frees the individual from all the penalties and legal disabilities
imposed upon him by the sentence
 – RPC: pardon shall not exempt culprit from the payment of civil
indemnity
◆ restores to him all his civil and political rights
– shall not work the restoration of the right to hold public office, or
right of suffrage, unless such rights be expressly restored by the
terms
$. reprieves
– postponement of sentence to a date certain, or stay of execution
%. commutations
– reduction or mitigation of the penalty, remittances and fines
– a pardon in form but not in substance
– merely reduces the penalty for reasons of public interest
&. remission of fines and forfeitures
– merely prevents the collection of fines or the confiscation of forfeited
property
– it cannot have the effect of returning property which has been vested in
third parties or money already in the public treasury
– may not be limited by any act of Congress
'. amnesty
– grant of general pardon to a class of political offenders either after
conviction or even before the charges is filed
– granted to President but with the concurrence of the legislature
– requisites:
◆ concurrence of a majority of all the members of Congress
◆ previous admission of guilt
– effect: total extinguishment of the criminal liability and of the penalty and
all its effects (as though he had committed no offense)
(. probation
– a disposition under which a defendant after conviction and sentence is
released
◆ subject to conditions imposed by court and to supervision of a
probation officer
– special privilege granted by the State to a penitent qualified offender, who
does not possess the disqualifications under the Probation law (Probation
law is not a penal law)
o. parole
– release from imprisonment but without full restoration of liberty
◆ still under custody of law but not in confinement
– suspension of the sentence granted by a Parole Board after serving the
minimum term of the indeterminate sentence penalty,
◆ pardon not graned
◆ prescribes the terms upon which the sentence shall be suspended
Diplomatic power
– sources:
". Constitution
$. status of sovereignty and independence
– scope of foreign relations powers of Pres.
". negotiate treaties and other international agreements
◆ requires concurrence of Senate (limited to this, not ratification);
actions:
– approve with 2/3 majority
– disapprove outright
– approve conditionally, with suggested amendments
◆ if re-negotiated and suggestions are incorporated, the treaty
will go into effect without need of further approval
◆ it is within the authority of President to refuse to submit a treaty to
Senate or refuse to ratify it
◆ treaty vs exec agreement
– T: intl agreements which involve political issues or changes of
national policy and those involving intl arrangements of a
permanent character
– E: intl agreements involving adjustment of details carrying out well
established national policies and traditions and involving
arrangements of a more or less temporary nature
◆ executive agreements do not require legislative concurrence
– a “treaty” within the meaning of that word in international law and
constitutes enforceable domestic law
– requisites under Vienna Convention:
". agreement must be between states
$. written
%. must be governed by international law
$. appoint ambassadors, other public ministers, consuls
%. receive ambassadors and other public ministers accredited to PH
&. contract and guarantee foreign loans on behalf of PH
'. deport aliens
◆ subject to restrictions as may be provided by law as regards to
grounds
◆ in absence of any legislative restriction, President may still exercise
– decision is final and executory
◆ alien is entitled to a full and fair hearing (due process limitation)
– except for summary deportation in overstaying and expiration of
passport
◆ alien has the right to apply for bail
(. decide that a diplomatic officer who has become Persona non grata be
recalled
 o. recognize governments and withdraw recognition

Powers relative to appropriation measures

". recommends the appropriation for the operation of the Government as
specified in the budget
$. may, by law, be authorized to augment any item in the general appropriations
law for his respective office from savings in other items of his respective
appropriations
%. 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
&. execute or implement GAA through a program of expenditures to be approved
by the President

Delegated powers
– see 1st handout

Residual powers
– executive power is more than the sum of specific powers so enumerated
– whatever power inherent in the government that is neither legislative nor
judicial has to be executive
– implied from the grant of executive power and which are necessary for the
President to comply with his duties under the Constitution

Veto powers
– general veto: if President disapproves a bill enacted by Congress, he should
veto the entire bill; not allowed to veto separate items of a bill
○ except: item-veto is allowed in case of appropriation, revenue, and tariff
bills
◆ except:
". doctrine of inappropriate provisions: a provision that is constitutionally
inappropriate for an appropriation bill may be singled out for veto even
if it is not an appropriation or revenue item
$. executive impoundment: refusal of the President to spend funds
already allocated by Congress for specific purpose; failure to spend or
obligate budget authority of any type
– pocket veto: not applicable in PH; instances:
". when President fails to act on a bill
$. when reason he does not return the bill to Congress bec. it is not in
session

RULES OF SUCCESSION
Vacancy before the beginning of the term of the President
". death, permanent disability of President-elect
– VP-elect shall become President
$. failure to elect the President
– VP shall act as President until Pres. shall have been chosen and qualified
%. no President and VP chosen and qualified / died or become permanently
disabled
– Senate President, or in case of inability, the Speaker of the House shall act
as President until a President or VP shall have been chosen and qualified
– Congress shall by law provide for the manner in which one who is to act as
President shall be selected, until a President or a Vice- President shall
have qualified, in case of death, permanent disability or inability of the
officials

Vacancy during the incumbency of the President

". death, permanent disability, removal from office, resignation of President
○ VP shall become the President to serve the unexpired term
$. death, permanent disability, removal from office, resignation of both President
and VP
○ Senate President, or in case of inability, the Speaker of the House shall act
as President until a President or VP shall have been chosen and qualified

Rules on presidential inability to discharge powers and duties

". when President transmits to Senate President and Speaker of the House his
written declaration that he is unable to discharge the powers and duties of his
office
○ powers and duties shall be discharged by VP as acting President
$. when majority of all members of Cabinet transmit to Senate President and
Speaker of the House their written declaration that President is unable to
discharge the powers and duties of his office
○ VP shall immediately assume powers and duties as Acting President

Procedure
". at 10{00 A.M. of 3rd day after vacancy occurs: Congress shall convene in
accordance with its rules without need of call
$. within 7 days: Congress shall enact a law calling for a special election to elect
a President and a VP
○ held not earlier than 45 days nor later than 60 days from the time of call
○ bill calling such special election shall be deemed certified; becomes law
upon its approval on 3rd reading by Congress
%. appropriations for said special election shall be charged against any current
appropriations and shall be exempt from requirements under the Constitutition
&. convening of Congress and special election cannot be suspended or
 &.
postponed
'. no special election shall be called if vacancy occurs within 18 months before
date of next presidential elections

JUDICIAL DEPARTMENT

CONCEPTS
Judicial power
– duty of the courts of justice to settle actual controversies involving rights,
which are legally demandable and enforceable and to determine whether or
not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government
– vested in one Supreme Court and such lower courts as may be established by
law

Judicial review
– power of SC to determine the constitutionality of a law, treaty, ordinance,
presidential issuance, and other governmental acts
– when a law or a provision of law is null because it is inconsistent with the
Constitution, the nullity cannot be cured by reincorporation or reenactment of
the same or a similar law or provision
Requisites
". actual case
– an existing case or controversy which is both ripe for resolution and
susceptible of judicial determination
– not conjectural or anticipatory
– that which seeks to resolve hypothetical or feigned constitutional
problems
$. proper party
– one who has sustained or is in immediate danger of sustaining an injury as
a result of the act complained of; must show that:
◆ he has suffered some actual or threatened injury as a result of the
allegedly illegal conduct of the government
◆ injury is fairly traceable to the challenged action
◆ injury is likely to be redressed by a favorable action
– exception to actual injury: question is of transcendental importance
(determined by:)
◆ character of funds or other assets involved in the case
◆ presence of a clear case of disregard of a constitutional or statutory
prohibition by the public respondent agency or instrumentality of
government
 ◆ lack of any other party with a more direct and specific interest in
raising the questions being raised
%. earliest opportunity
– raise it in a pleading before a competent court that can resolve the same
– exceptions:
◆ criminal case: may be brought at any stage of the proceedings
according to discretion of the judge (trial or appeal)
◆ civil case: may be brought anytime if the resolution of the
constitutional issue is inevitable in resolving the main issue
◆ when the jurisdiction of the lower court is in question except when
there is estoppel
&. necessity of deciding constitutional questions / lis mota
– cause of the suit or action
– shows that the case cannot be resolved unless the constitutional question
raised is determined by the Court

Operative fact doctrine

– the law is recognized as unconstitutional but the effects of the
unconstitutional law, prior to its declaration of nullity, may be left undisturbed
as a matter of equity and fair play
– invocation of this doctrine is an admission that the law is unconstitutional
– applies to executive acts subsequently declared as invalid
– doctrine of relative constitutionality: where the constitutionality of certain
rules may depend upon the times and get affected by the changing of the
seasons

Political question doctrine

– political question: those questions which, under the Constitution, are to be
decided by the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the legislative or executive
branch of the government
– power of judicial review cannot be exercised when the issue is a political
question
– effect by reason of expanded definition of judicial power
○ when the grant of power is qualified, conditional or subject to limitations,
the issue of whether the prescribed qualifications or conditions have been
met or the limitations respected is justiciable—the problem being one of
legality or validity, not its wisdom
○ when political questions are involved, Constitution limits the delimitation
as to WON there has been a grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of the official whose action is being
questioned
JUDICIAL INDEPENDENCE AND AUTONOMY
– Constitutional safeguards that guarantee judicial independence
". SC is a constitutional body and may not be abolished by law
$. members are only removable by impeachment (?? quo warranto >
Serreno)
%. SC may not be deprived of its minimum and appellate jurisdiction
◆ appellate jurisdiction may not be increased without its advice or
concurrence
◆ Congress shall have the power to define, prescribe, and apportion
jurisdiction of courts below SC
&. SC has administrative supervision over all inferior courts and personnel
'. SC has exclusive power to discipline judges/justices of inferior courts
(. members of the judiciary enjoy security of tenure
o. members of the judiciary may not be designated to any agency performing
quasi-judicial or administrative functions
s. salaries of judges may not be reduced
◆ judiciary enjoys fiscal autonomy
t. SC alone may initiate the promulgation of the Rules of Court
"u. SC alone may order temporary detail of judges
"". SC can appoint all officials and employees of the Judiciary
– fiscal autonomy
○ contemplates a guarantee of full flexibility to allocate and utilize resources
with the wisdom and dispatch that the needs require
◆ power and authority to deny, assess and collect fees
◆ fix rates of compensation not exceeding the highest rates authorized
by law for compensation
◆ pay plans of the government
◆ allocate and disburse such sums as may be provided by law or
prescribed by it in the course of the discharge of its functions
– judicial privilege (deliberative process privilege)
○ privilege against disclosure of information or communications that formed
the process of judicial decisions
○ applies to confidential matters like:
". raffle of cases
$. actions taken in each case in the Courtʼs agenda
%. deliberations of the Members in court sessions on case matters
pending before it
&. court records which are predecisional and deliberative
'. confidential information secured by justices, judges, court officials
and employees in the court of their official functions
(. records of cases that are still pending for decision
○ may be waived only by the SC
APPOINTMENTS TO THE JUDICIARY
– appointed by the President of the Philippines from among a list of at least
three nominees prepared by the Judicial and Bar Council (JBC) for every
vacancy
○ need no confirmation from CA

Qualifications of members of the judiciary

– of proven competence, integrity, probity and independence
– SC:
". natural born citizen of the Philippines
$. at least 40 years of age
%. judge of a lower court or engaged in the practice of law in PH for 15 years
or more
– lower collegiate courts and lower courts
". natural born citizen of the Philippines
$. member of the Philippine Bar
%. Congress may prescribe other qualifications

Judicial and Bar Council

Composition
". Chief Justice, as ex-officio chairman
$. Secretary of Justice, as an ex-officio member
%. representative of Congress, as an ex-officio member
○ from either Senate or House
&. representative of the Integrated Bar
'. a Professor of law
(. a Retired member of the SC
o. private sector representative

Powers
– recommend appointees to the judiciary
○ duty to submit a list of nominees before start of the Presidentʼs mandatory
90-day period to appoint is ministerial
○ selection of candidates included in the list lies within its discretion
– may exercise such functions as the SC may assign to it

THE SUPREME COURT

Composition
– Chief Justice
– 14 Associate Justices
– may sit en banc, or in its discretion, in divisions of 3, 5, or 7 members
Powers and functions
". original jurisdiction over the ff:
○ cases affecting ambassadors, other public ministers and consuls
○ petition for certiorari, prohibition and mandamus
○ petition for quo warranto
○ petition for habeas corpus
$. appellate jurisdiction
○ may review, revise, reverse, modify, or affirm final judgments and orders of
lower courts:
◆ cases involving constitutionality or validity of any treaty, international
or executive agreement, law, presidential decree, proclamation, order,
instruction, ordinance, or regulation
◆ cases involving legality of any tax, impost, assessment, or toll, or any
penalty imposed in relation thereto
◆ cases in which jurisdiction of any lower court is in issue
◆ criminal cases where penalty imposed is reclusion perpetua or higher
◆ cases where only a question of law is involved
%. temporary assignment of judges of lower courts to other stations
○ as public interest require
○ shall not exceed 6 months
&. order change of venue or place of trial, to prevent a miscarriage of justice
'. rule making power
○ scope:
◆ protection and enforcement of constitutional rights
◆ pleadings, practice and procedure in all courts
◆ admission to the practice of law
◆ the Integrated Bar
◆ legal assistance to the underprivileged
○ limitations:
◆ should provide a simplified and inexpensive procedure for the speedy
disposition of cases
◆ should be uniform for all courts of the same grade
◆ should not diminish, increase, or modify substantive rights
(. power of appointment
○ appoints all officials and employees of the judiciary in accordance with the
Civil Service Law
o. power of administrative supervision
○ administrative supervision over all courts and the personnel thereof
◆ only SC en banc has jurisdiction to discipline or dismiss judges of
lower courts
◆ disciplinary action/dismissal: majority vote of SC Justices who took
part in the deliberations and voted
 ◆ administrative jurisdiction over a court employee belongs to the SC,
regardless of whether the offense was committed before or after
employment in the Judiciary
○ does not have jurisdiction to impose the proper disciplinary action against
civil registrars (COC of sharia courts are also circuit registrars)
s. presidential electoral tribunal
○ SC, sitting en banc, shall be the sole judge of all contests relating to
election, returns, and qualifications of the President or VP, and may
promulgate its rules for the purpose
t. submit annual report of operations and activities of judiciary to Congress,
within 30 days from opening of each regular session

CONSTITUTIONAL COMMISSIONS

COMMON PROVISIONS
– consists of:
". Civil Service Commission
$. Commission on Elections
%. Commission on Audit
– decides any matter by majority vote of its members within 60 days from
submission

INSTITUTIONAL INDEPENDENCE SAFEGUARDS

". constitutionally-created; may not be abolished by statute of its judicial
functions
$. each is conferred certain powers and functions which cannot be reduced by
statute
%. each is expressly described as independent
&. Chairmen and members are given fairly long terms of office for 7 years
'. Chairmen and members cannot be removed except by impeachment
(. Chairmen and members may not be reappointed or appointed in an acting
capacity
o. Salaries of chairmen and members are relatively high and may not be
decreased during continuance in office
s. enjoy fiscal autonomy
t. Each commission may promulgate its own procedural rules
"u. Chairmen and members are subject to certain disqualifications and
inhibitions calculated to strengthen their integrity
"". Commissions may appoint their own officials and employees in accordance
with Civil Service Law

POWERS AND FUNCTIONS

– COMELEC
". enforce and administer all laws and regulations relative to the conduct of
an election, plebiscite, initiative, referendum, and recall
$. exercise:
– exclusive original jurisdiction over all contests relating to the election,
returns and qualifications of all elective:
◆ regional
◆ provincial
◆ city officials
– exclusive appellate jurisdiction over all contests involving:
◆ elective municipal officials decided by trial courts of general
jurisdiction
◆ elective barangay officials decided by courts of limited jurisdiction
– contempt powers
◆ can exercise only in relation to its adjudicatory or quasi- udicial
functions
– pre-proclamation controversy: quasi-judicial/ administrative
powers
– jurisdiction over contests (after proclamation): judicial
functions
– may issue writs of certiorari, prohibition, and mandamus in exercise of
its appellate functions
%. decide all questions affecting elections:
– determination of number and location of polling places
– appointment of election officials and inspectors
– registration of voters
◆ questions involving the right to vote fall within the jurisdiction of
ordinary courts
&. deputize law enforcement agencies and instrumentalities of the
government for exclusive purpose of ensuring free, orderly, honest,
peaceful and credible elections
– with concurrence of the President
'. registration of political parties, organizations, or coalitions and
accreditation of citizensʼ arms of the COMELEC
(. file, upon a verified complaint, or on its own initiative, petitions in court for
inclusion or exclusion of voters; investigate and prosecute cases of
violations of election laws, including acts or omissions constituting
election frauds, offenses and malpractices
– DOJ conducts PI of election offenses concurrently with COMELEC
o. recommend to Congress effective measures to minimize election
spending, including limitation of places where propaganda materials shall
be posted, and to prevent and penalize all forms of election frauds,
offenses, malpractices, and nuisance candidacies
 s. recommend to President the removal of any officer or employee it has
deputized, or the imposition of any other disciplinary action, for violation
or disregard of, or disobedience to its directive, order, or decision
t. submit to President and Congress a comprehensive report on the conduct
of each election, plebiscite, initiative, referendum, or recall
– COA
". examine, audit and settle all accounts pertaining to revenue and receipts
of, and expenditures or uses of funds and property owned or held in trust
or pertaining to government
$. keep general accounts of government and preserve vouchers and
supporting papers
%. authority to define the scope of its audit and examination, establish
techniques and methods required therefore
&. promulgate accounting and auditing rules and regulations, including those
for prevention and disallowance
– CSC
○ establish a career service
○ adopt measures to promote morale, efficiency, integrity, responsiveness,
progressiveness and courtesy in the civil service
○ strengthen the merit and rewards system
○ integrate all human resources development programs for all levels and
ranks
○ institutionalize a management climate conducive to public accountabilty
○ power to hear and decide administrative cases instituted before it directly
or on appeal, including contested appointments

COMPOSITION AND QUALIFICATION OF MEMBERS

– COMELEC
○ composition
◆ chairman
◆ 6 commissioners
– term is 7 years, without reappointment; vacancy, only for the
unexpired term (same with all below)
○ qualifications
◆ natural-born citizen
◆ at least 35 at time of appointment
◆ college degree holder
◆ not a candidate in any election immediately preceding appointment
◆ majority of members and chairman shall be members of Philippine Bar
engaged in practice of law for at least 10 years
– COA
○ composition
◆ chairman
 ◆2 commissioners
○qualifications
◆ natural-born citizen
◆ at least 35 years old at the time of appointment
◆ CPA with not less than 10 years of auditing experience / member of
Philippine Bar who has been engaged in the practice of law
◆ not a candidate in any election immediately preceding appointment
– CSC
○ composition
◆ chairman
◆ 2 commissioners
○ qualifications
◆ natural-born citizen
◆ at least 35 years at time of appointment
◆ with proven capacity for public administration
◆ not a candidate for any elective position in election immediately
preceding appointment

PROHIBITED OFFICES AND INTERESTS

– no member of a Constitutional Commission shall, during his tenure:
". hold any other office or employment
$. engage in the practice of any profession
%. engage in the active management and control of any business which in
any way may be affected by the function of his office
&. be financially interested, directly or indirectly, in any contract with, or in
any franchise or privilege granted by the Government, any of its
subdivisions, agencies or instrumentalities, including GOCCs or their
subsidiaries

BILL OF RIGHTS

CONCEPT OF BILL OF RIGHTS

– set of prescriptions setting forth the fundamental civil and political rights of
the individual, and imposing limitations on the powers of government as a
means of securing the enjoyment of those rights

Privacy and autonomy

– Bill of Rights cannot be invoked against private individuals
– in absence of governmental interference, the liberties guaranteed by the
Constitution cannot be invoked
– constitutional right to privacy means a protection from interference so that
people may be free to make the most intimate and personal choices of a
 –

lifetime
○ choices are central to personal dignity and autonomy, are also central to
the protection given under the Fourteenth Amendment of the US
Constitution, equivalent of our Due Process Clause

Relation to human rights

– primacy of human rights over the Bill of rights is recognized
– if there is no Constitution or Bill of Rights, the protection accorded to
individuals under the International Covenant on Civil and Political Rights and
the Universal Declaration of Human Rights shall take effect

DUE PROCESS OF LAW

Concept of right to life, liberty and property

". Right to life
– not merely a right to the preservation of life but also to the security of the
limbs and organs of the human body against any harm
– includes the right of an individual to pursue a lawful calling or occupation;
to express, write or even paint his ideas for as long as he does not
unlawfully transgress the rights of others; to exercise his freedom of
choice, whether this in area of politics, religion, marriage, philosophy and
employment, or even in the planning of his family; and in general, to do
and perform any lawful act or activity which, in his judgment, will make his
life worth living
$. Right to liberty
– right of a citizen to be free from the mere physical restraint of his person,
as by incarceration
– embraces the right of the citizen to be free in the engagement of all his
faculties; to be free to use them in all lawful ways
%. Right to property
– right over anything that can come under the right of ownership and be
subject of contract
– represents more than the things a person owns; it includes the right to
secure, use and dispose of them

Kinds of due process

Substantive
– requires the intrinsic validity of the law in interfering with the rights of the
person to his life, liberty, or property
– specific concern of substantive due process is to find out whether a law is a
proper exercise of legislative power
– publication of laws is part of substantive due process
 ○ before a person may be bound by law, he must officially and specifically
informed of its contents
– purpose: restriction on governmentʼs law and rule-making power
– requisites:
". the interests of the public in general, as distinguished from those of a
particular class, require the intervention of the state
$. means employed are reasonably necessary for the accomplishment of the
purpose and not unduly oppressive upon individuals

Procedural
– refers to the regular methods of procedure to be observed before oneʼs life,
liberty or property can be taken away from him
– purpose: serves as a restriction on actions of judicial and quasi-judicial
agencies of the government
– requisites:
". impartial court or tribunal clothed with judicial power to hear and
determine the matters before it
$. jurisdiction properly acquired over the person of the defendant and over
property which is the subject matter of the proceeding
%. opportunity to be heard
◆ either through verbal arguments in court or through submission of
pleadings
&. judgment rendered upon lawful hearing and based on evidence adduced

Judicial
– a day in court
– submission of pleadings and oral arguments
– notice and hearing are both essential

Administrative
– opportunity to explain oneʼs side
– usually through seeking a reconsideration of the ruling or the action taken, or
appeal to a superior authority
– notice and hearing are only required when the administrative body is
exercising quasi-judicial functions
– requisites in admin law H.O.

Levels of scrutiny
". deferential review
– laws are upheld if they rationally further a legitimate governmental interest
◆ without courts seriously inquiring into the substantiality of such
interest and examining alternative means by which the objectives
could be achieved
 $. intermediate review
– substantiality of the governmental interest is seriously looked into and the
availability of less restrictive alternatives is considered
%. strict scrutiny
– focus is on the presence of compelling interest, rather than substantial
governmental interest and on absence of less restrictive means for
achieving that interest

EQUAL PROTECTION OF LAWS

Concept
– all persons or things similarly situated should be treated alike, both as to
rights conferred and responsibilities imposed
– guarantees equality, not identity of rights
– does not forbid discrimination as to persons and things that are different
○ forbids distinctions based on impermissible criteria unrelated to a proper
legislative purpose, or class or discriminatory legislation, which
discriminates against some and favors others when both are similarly
situated

Requisites for valid classification

". must rest on substantial distinctions
$. must be germane to the purpose of the law
– the distinctions which are the bases for classification should have a
reasonable relation to the purpose of the law
%. must not be limited to existing conditions only
&. must apply equally to all members of the same class

Levels of scrutiny
". Strict Scrutiny Test
– refers to the standard for determining quality and amount of governmental
interest brought to justify the regulation of fundamental freedoms
– used to test the validity of laws dealing with regulation of speech, gender,
or race as well as other fundamental rights as expansion from its earlier
applications to equal protection
– requisites:
◆ there is a compelling state interest behind the challenged policy
◆ law or regulation is narrowly tailored to achieve its result
$. Intermediate Scrutiny Test
– requisites:
◆ classification (means) must serve an important governmental
objective (ends)
 ◆ it is substantially related to the achievement of such objective
– example: classification based on sex
%. Rational Basis Test
– requires “only that government must not impose differences in treatment
except upon some reasonable differentiation fairly related to the object of
regulation”
– demands that the classification in the statute reasonably relates to the
legislative purpose
– applied on classifications which do not affect fundamental rights

RIGHT AGAINST UNREASONABLE SEARCHES AND

SEIZURES

Concept of privacy
– right to be left alone
– right to be free from unwarranted exploitation of oneʼs person or from
intrusion into onesʼ private activities in such a way as to cause humiliation to a
personʼs ordinary sensibilities

Concept of a search
– procedure where law enforcement officers, upon probable cause that a crime
has been committed, search a personʼs property
– must be made in the presence of the lawful occupant to the place to be
searched or any member of his family
○ in absence, presence of 2 witnesses of sufficient age and discretion,
residing in the same locality

Requisites of a valid warrant

". must be issued upon determination of probable cause
$. probable cause must be determined by the judge himself and not by applicant
or any other person
%. judge must examine, under oath or affirmation, the complainant and such
witnesses as the latter may produce
○ in the form of searching questions
&. warrant issued must particularly describe the place to be searched and things
to be seized

Warrantless searches
". visual search is made of moving vehicles at checkpoints
– requisites:
◆ establishment of checkpoint must be pronounced
◆ must be stationary, not roaming
 ◆ search must be limited to visual search and must not be intrusive
– exception (extensive search):
◆ if motorist is a law offender
◆ if officers will find evidence pertaining to a crime in the
vehicle
$. search is an incident to a valid arrest
– officer making an arrest may take:
◆ any money or property found upon his person which was used in the
commission of the offense
◆ was the fruit thereof
◆ which might furnish the prisoner with the means of committing
violence or escaping
◆ which might be used as evidence in the trial of the case
%. search of passengers made in airports
– allowed under RA 6235; tickets issued to a passenger shall contain a
condition that his luggages are subject to search and seizure of prohibited
materials or substances
– forms part of the contract between the passenger and the air craft carrier
&. when things seized are within plain view of a searching party (Plain View
Doctrine)
– requisites:
◆ law enforcement officer has a prior justification for an intrusion or is in
a position from which he can view a particular area
◆ discovery of the evidence in plain view is inadvertent
◆ it is immediately apparent to the officer that the item he observes may
be evidence of a crime, contraband, or subject to seizure
– where object seized was inside a closed package, the object itself
is not in plain view
'. stop and frisk
– must precede an arrest
– limited protective search of outer clothing for weapons
◆ a genuine reason must exist in light of a police officerʼs experience
and surrounding conditions to warrant the belief that the person
detained has weapons concealed
(. when there is a valid express waiver made voluntarily and intelligently
– voluntary, unequivocal, specific, intelligently given, uncontaminated by any
duress or coercion
– requisites:
◆ right to waive constitutional right against obstrusive searches exists
◆ person had knowledge, either actual or constructive, of the existence
of such right
◆ he had an actual intention to relinquish such right
o. customs search
 s. exigent and emergency circumstances

Warrantless arrests and detention

". in flagrante delicto
– person to be arrested must commit an overt act indicating that he has just
committed, is actually committing, or is attempting to commit a crime
– such overt act is done in the presence of or within the wiew of the person
making the arrest
– person making the arrest must be personally aware of the commission of
the crime
$. hot pursuit
– when an offense has in fact just been committed and the arresting officer
has probable cause to believe, based on personal knowledge of the facts
and circumstances indicating, that the person to be arrested has
committed it
%. escaped prisoner or detainee
– when the person to be arrested is a prisoner who has escaped from a
penal establishment or place where he is serving final judgment or
temporarily confined while his case is pending, or has escaped while being
transferred from one confinement to another
&. waiver
– when right is waived by person arrested, provided he knew of such right
and knowingly decided not to invoke it
◆ limited to invalid arrest; does not extend to illegal search
'. continuing offenses
– in crimes of rebellion, subversion, conspiracy or proposal to commit such
crimes, and crimes or offenses committed in furtherance thereof, or in
connection therewith
(. arrest after escape or rescue
– if a person lawfully arrested escapes or is rescued, any person may
immediately pursue or retake him without a warrant at any time and in any
place within PH
o. Arrest of accused out on bail

Exclusionary rule
– any evidence obtained in violation of the Constitution shall be inadmissible for
any purpose in any proceeding
○ non-compliance with S.21(a) of RA 9165 will not render the drugs
inadmissible as evidence as long as:
◆ prosecution explains the reasons behind the procedural lapses
◆ the integrity and value of the seized evidence had been preserved

Effects of unreasonable searches and seizures

 ". exclusionary rule
$. criminal liability against the officer
%. does not necessarily follow that property illegally seized will be returned
immediately
○ could remain in custodia legis
○ may be used as evidence against officers responsible for the illegal search
and seizure

Effects of illegal detention

". failure to acquire jurisdiction over the person of an accused
$. criminal liability of law enforcers for illegal arrest
%. any search incident to the arrest becomes invalid thus rendering evidence
acquired as constitutionally inadmissible (leonen case)

FREEDOM OF SPEECH AND EXPRESSION

Concept
Continuum of thought, speech, expression, and speech acts
– right to freedom of expression applies to the entire continuum of speech from
utterances made to conduct enacted, and even to inaction itself as a symbolic
manner of communication
– includes the right to be silent

Purposes of free speech doctrines

". right of the people to participate in public affairs, including right to criticize
government actions
○ the interest of society and the maintenance of good government demand
a full discussion of public affairs
○ debate on public issues should be uninhibited, robust, and wide open,
including even unpleasantly sharp attacks on government and public
officials
$. concept of market place of ideas
○ exposure to the ideas of others allows one to consider, test, and develop
their own conclusions
○ a free, open, and dynamic market place of ideas is constantly shaping new
ones
%. enhances human dignity
&. expression is a marker for group identity
○ voluntary associations provides forums for the development of civil skills,
for deliberation, and for the formation of identity and community spirit,
and are largely immune from any governmental interference
○ free speech is a vehicle to find those who have similar and shared values
 ○
and ideals, to join together and forward common goals
'. protect individuals and minorities against majoritarian abuses perpetrated
through the framework of democratic governance
(. safety valve theory
○ nonviolent manifestations of dissent reduce the likelihood of violence
○ there is a need for peaceful methods in making passionate dissent

Balance between unbridled expression and liberty

– freedom of expression is not absolute
– not an unbridled license that gives immunity for every possible use of
language and prevents the punishment of those who abuse this freedom
– some types of speech may be subjected to some regulation by the State
under its pervasive police power, in order that it may not be injurious to equal
right of others or those of the community or society

Types of regulation
Prior restraint and subsequent punishment
– Prior restraint refers to official governmental restrictions on the press or other
forms of expression in advance of actual publication or dissemination
○ examples of censored contents:
◆ pornography
◆ false or misleading advertisement
◆ advocacy of imminent lawless actions
◆ danger to national security
– Subsequent punishment is the imposition of the State of a punishment after
publication and dissemination
○ not absolute
○ examples:
◆ libel (cyber libel is not a new crime)
◆ obscenity (determination is a judicial function)
◆ criticism of official conduct (must be made with actual malice to
justify recovery of damages)
◆ limitation of free speech in school premises

Content based and content neutral

– content-based
○ restriction is based on the subject matter of the utterance or speech
○ there is presumption of unconstitutionality (burden of proof: govt)
○ test to be used: clear and present danger
– content neutral
○ merely concerned with the incidents of the speech
○ one merely controls the time, place or manner, and under well-defined
standards
 ○ no presumption of unconstitutionality
○ test to be used: intermediate approach

Incitement and advocacy

– the constitutional guarantees of free speech and free press do not permit a
State to forbid or proscribe advocacy of the use of force or of law violation,
except:
○ such advocacy is directed to inciting or producing imminent lawless action
and is likely to incite or produce such action
– only advocacies that constitute an effort to instigate action is punishable
○ advocacy of violation, however reprehensible morally, is not a justification
for denying free speech where the advocacy falls short of incitement and
there is nothing to indicate that the advocacy would be immediately acted
on

Specificity of regulation and overbreadth doctrine

– overbreadth and vagueness doctrine have special application only to free
speech cases
○ through a facial challenge
– overbreadth doctrine
○ permits a party to challenge the validity of a statute even though as
applied to him it is not unconstitutional, but might be applicable to others
not before the court whose activities are constitutionally protected
○ type of facial challenge that prohibits the government from achieving its
purpose by means that sweep unnecessarily broadly, reaching
constitutionally protected as well as unprotected activity
◆ note: only states the regulations must be specific and not overly broad
as to affect constitutionally protected rights

Speech regulation in relation to election

– COMELEC, may, during election period, supervise or regulate media of
communication or information
○ to ensure equal opportunity, time, and space, and the right to reply,
including reasonable, equal rates therefor, for public information
campaigns and forums among candidates
– speech in context of electoral campaigns made by candidates, members of
their political parties or political parties may be regulated as to time, place,
and manner
– cannot be regulated if made by persons who are not candidates or who do not
speak as members of a political party, wherein the speech is an advocacy of a
social issue
○ will be regulated if the speech is for endorsement of a candidate
– requisites of a valid regulation:
 ". should be provided by law
$. reasonable
%. narrowly tailored to meet the objective of enhancing opportunity of all
candidates to be heard and considering the primacy of guarantee of free
expression
&. demonstrably the least restrictive means to achieve that object

Speech regulation in relation to media

– 4 aspects of freedom of the press
○ freedom from prior restraint
◆ apply rules on content-based and content neutral regulations
○ freedom from punishment subsequent to publication
○ freedom of access to information
○ freedom of circulation
– all forms of media, whether print or broadcast, are entitled to the broad
protection of the freedom of speech and expression clause
○ broadcast media shall be restricted in form of requirements of licensing,
allocation of airwaves and application of norms to unprotected speech
○ clear and present danger rule shall be applicable

Judicial analysis, presumptions and levels and types of scrutiny

". Clear and Present Danger test
– whether the words are used in such circumstances and are of such a
nature as to create a clear and present danger that they will bring about
the substantive evils that Congress has a right to prevent. It is a question
of proximity and degree
– danger created must not only be clear and present but also traceable to
the ideas expressed
$. Dangerous Tendency test
– whether speech restrained has a rational tendency to create the danger
apprehended, be it far or remote, thus government restriction would then
be allowed
◆ mere tendency towards the evil is enough
%. Grave-but-Improbable Danger test
– whether the gravity of the evil, discounted by its improbability, justifies
such an invasion of free speech as is necessary to avoid the danger
&. Balancing of interest test
– which of the two conflicting interests demands the greater protection
under the particular circumstances presented:
◆ when particular conduct is regulated in the interest of public order
◆ regulation results in an indirect, conditional and partial abridgement of
speech
'. OʼBrien test
 – applied in situations when “speech” and “non- speech” elements are
combined in the same course of conduct
– whether there is a sufficiently important governmental interest that
warrants regulating the non-speech element, incidentally limiting the
“speech” element
◆ government regulation is valid if:
– it is within the constitutional power of the government
– in furtherance of an important or substantial governmental
interest
– governmental interest is unrelated to the suppression of free
expression
– incidental restriction on the freedom is essential to the
furtherance of that interest
(. Direct Incitement test
– what words did a person utter and what is the likely result of such
utterance?
– very words uttered, and their ability to directly incite or produce imminent
lawless action
o. Roth Test on Obscenity
– whether to the average person, applyingcontemporary community
standards, the dominant theme of the material taken as a whole appeals to
prurient interest
s. Miller test on indecent speech
– whether the work depicts or describes, in a patently offensive way, sexual
conduct specifically defined by the applicable state law
– the work, taken as whole, lacks serious literary, artistic, political, or
scientific value

Special topics in free expression cases

Hate speech
– speech designed to promote hatred on the basis of race, religion, ethnicity, or
national origin
– in U.S., hate speech is a legally protected right
– when should be regulated (according to UN):
○ when the expression calls the audience to act violently
○ when the comments specifically undermine the rights of other people to
express themselves freely

Defamation and libel

– libelous speech does not fall within the ambit of constitutional protection
– criminal libel:
○ public and malicious imputation of a crime, or of a vice or defect, real or
imaginary, or any act, omission, condition, status, or circumstance tending
 ○

to cause the dishonor, discredit, or contempt of a natural or juridical

person, or to blacken the memory of one who is dead
– no liability can attach if the defamatory speech relates to official conduct
○ unless the public official concerned proves that the statement was made
with actual malice
◆ with knowledge that it was false, or with reckless disregard of whether
it was false or not

Sedition and speech in relation to rebellion

– seditious libels
○ writings which tend to overthrow or undermine the security of the
government or to weaken the confidence of the people in the government
are against the public peace
○ is criminal, not only because they tend to incite to a breach of the peace,
but because they are conducive to the destruction of the very government
itself
– essence of seditious libel is to stir up general discontent to the pitch of illegal
courses; to induce people to resort to illegal methods other than those
provided by the Constitution
– when the use of irritating language centers on creating disturbances, the
rationale of free speech cannot apply and the speaker or writer is removed
from the protection of the constitutional guaranty
– apply the clear and present danger doctrine

Obscenity/pornography
– Basic test: whether the material appeals to prurient interests
○ based on Roth and Miller test
– not entitled to constitutional protection; exception in freedom of expression

Commercial speech
– speech or writing on behalf of a business with the intent of earning revenue or
a profit
– a speech that proposes a commercial transaction
– not accorded the same level of protection as that given to other
constitutionally guaranteed forms of expression but is nonetheless entitled to
protection.
– tests WON regulation violates free speech:
". whether the commercial speech concerns a lawful activity and is not
misleading
$. whether government interest asserted to justify the regulation is
“substantial”
%. whether the regulation “directly advances” that government interest
&. whether the regulation is no more extensive than necessary to serve that
 &.
interest

National emergencies
– wave of warnings after declaration of State of National Emergency is
impermissible restraint on freedom of expression
○ NTC urged television and radio networks to “cooperate” with the
government for the duration of the state of national emergency
○ warned that NTC will not hesitate to recommend the closure of any
broadcast outfit that violates rules set out for media coverage during
times when the national security is threatened
○ imposition of standards on media or any form of prior restraint as well as
warrantless searches and seizures were declared unconstitutional

Speech of public officers

– a citizen who accepts public employment “must accept certain limitations on
his or her freedom”
○ depends on the nature of functions discharged by the different
government branches, departments, bureaus, offices, and other
government agencies and instrumentalities
◆ agencies exercising proprietary functions: wider scope of freedom of
expression
◆ governmental functions
– by popular vote: wider scope (protected speech or debate in
Congress or in any committee)
– judiciary: maintain independence, integrity, impartiality, propriety,
equality, competence, and diligence
– military and police: strictest limitation
○ examples:
◆ prohibition against strikes in the government (only for those bodies
which exercises governmental functions)
◆ public accountability and commitment to giving priority to the public
interest demand some level of limitation
– may still voice out their protests against what they believe to be a violation of
their rights and interests

Cognate rights
Freedom of assembly
– right to peaceful assembly to petition the government for a redress of
grievances
– not subject to prior restraint
○ must be exercised in such a way as will not prejudice the public welfare
– permits as restrictions are valid if:
". it is concerned only with the time, place, and manner of assembly
 $. does not vest on the licensing authority unfettered discretion in choosing
the groups which could use the public place and discriminate others
◆ permit can only be denied on the ground of clear and present danger
to public order, safety, convenience, morals or health
– permits shall not be necessary if to be held in:
". a private place
$. in a campus of a GOCC
%. in a freedom park

Freedom of association
– right to form or join unions or associations includes the right not to join, or to
disaffiliate
– ability to strike is not essential to right of association
– right is not absolute; subject to limitations:
○ not allowed if for unlawful purposes
○ prohibition of managerial employees to join unions
○ compulsory membership in IBP

Freedom of information
– right of people to information on matters of public concern
○ includes negotiations leading to the consummation of the transaction
○ access to records, documents and papers
– does not extend to:
". privileged information
$. military and diplomatic secrets
%. information affecting national security
&. investigation of crimes for prosecution of accuseds
'. trade and industrial secrets
– requirement for publication of laws

EMINENT DOMAIN
Concept
– see 2nd H.O.

Just compensation
– see 2nd H.O.

Abandonment of intended use and right of repurchase

– see 2nd H.O.

Expropriation by local government units

 – merely delegated under the LGC
– requisites:
". an ordinance is enacted by the local legislative council
◆ authorizing local chief executive to exercise the power of eminent
domain or pursue expropriation proceeding over a particular private
property
◆ not a resolution, mere expresses sentiment of the municipal council
$. must be for public use, purpose or welfare or for the benefit of the poor or
landless
◆ property already devoted to public use may not be taken for another
public use
%. there must be payment of just compensation
&. a valid and definite offer has been previously made to the owner of the
property sought to be expropriated
◆ in writing, state:
– property sought to be acquired
– reason for the acquisition
– price offered
◆ offer was not accepted
– if accepted: execution of contract of sale
– if accepts for a higher price: local chief executive shall call for a
conference for agreement as to the price
– how can LGU immediately enter the property:
". filling of a complaint for expropriation which is sufficient in form and
substance
$. deposit of the amount equivalent to 15% of FMV of property to be
expropriated based on its current tax declaration
◆ upon compliance, issuance of writ of possession is ministerial

RIGHT AGAINST SELF-INCRIMINATION

Scope and coverage

– protection against testimonial compulsion
○ extended to any evidence “communicative in nature” acquired under
duress
○ prohibition of use of physical or moral compulsion to extort
communication from witness or to otherwise elicit evidence which would
not exist were it not for the actions compelled from him
– coverage:
". criminal cases
$. civil cases
%. administrative cases
 &. impeachment
'. other legislative investigations that possess a criminal or penal aspect
– not applicable to object evidence (except, see Application)
– not applicable to private investigations by private individuals
– cannot be invoked by aliens in relation incrimination in regard to foreign laws,
except if alien is:
". foreign states, head of states, diplomatic representatives, and consuls to a
certain degree
$. foreign state property
%. acts of state
&. foreign merchant vessels exercising rights of innocent passage or arrival
under stress
'. foreign armies passing through or stationed in its territories with its
permission
(. other persons or property, including organisations like UN, over which it
may, by agreement, waive jurisdiction
– privilege against self-incrimination is not self-executing
○ must be claimed against incriminatory questions or statements
◆ as to accused: can refuse to take the witness stand
◆ as to witness: cannot refuse to take witness stand, can only refuse to
answer specific questions which would incriminate him for an offense

Application
". reenactment of a crime
– may rightfully invoke privilege
– by conduct of acting out how the crime was supposedly committed,
accused thereby practically confesses his guilt by action
$. handwriting
– does not matter whether testimony is taken by oral or written
– writing is not purely a mechanical act because it requires the application
of intelligence and attention
◆ purpose is to avoid and prohibit the repetition and recurrence of
compelling a person, in a criminal or any other case, to furnish the
missing evidence necessary for conviction
– also applies to one who is compelled to produce a private document
%. not applicable to juridical persons

Immunity statutes
". use and derivative use immunity
– witness is assured that his or her particular testimony and evidence
derived from it will not be used against him or her in a subsequent
prosecution
◆ if the prosecutor acquires evidence substantiating the supposed
 ◆
crime, independent of the witness's testimony, witness may then be
prosecuted for the same
$. transactional immunity
– witness can no longer be prosecuted for any offense whatsoever arising
out of the act or transaction
– blanket or total immunity

RIGHTS OF PERSONS UNDER CUSTODIAL

INVESTIGATION
– custodial investigation:
○ any questioning initiated by law enforcement officers after a person has
been taken into custody or otherwise deprived of his freedom of action in
any significant way

Availability
". during custodial investigation
$. as soon as the investigation ceases to be a general inquiry unto an unsolved
crime and direction is aimed upon a particular suspect
○ suspect has been taken into police custody
○ police directs interrogatory questions which tend to elicit incriminating
statements

Requisites
– applies only against testimonial compulsion
– when there is no compulsion and accused confessed voluntarily, no violation;
confession is admissible
". person arrested, detained or under custodial investigation shall at all times
be assisted by counsel
$. officer shall inform such person, in language known and understood by
him the ff:
◆ right to remain silent
◆ right to have competent and independent counsel, preferably of his
own choice
– if cannot afford the services of his own counsel, he must be
provided with one
%. custodial investigation report shall be reduced in to writing
◆ signed or thumbmarked by the person
◆ read and adequately explained to him by counsel
&. any extrajudicial confession made shall be in writing
◆ signed by accused in presence of counsel AND any of the ff chosen
by him:
– parents
 – elder brothers and sisters
– spouse
– municipal mayor
– municipal judge
– district school supervisor
– priest or minister of the gospel
'. any waiver by such person under Art. 125 of RPC or custodial investigation
shall be in writing
◆ signed by accused in presence of counsel
(. such person shall be allowed visits or conferences

Waiver
– what may be waived:
". right to remain silent
$. right to counsel
– requisites for a valid waiver:
". made voluntarily, knowingly and intelligently
$. in writing
%. with the presence of counsel

RIGHTS OF THE ACCUSED

Criminal due process

– requisites:
". accused is heard by a court of competent jurisdiction
$. accused is proceeded against under the orderly processes of law
%. accused is given notice and opportunity to be heard
&. judgment must be rendered after lawful hearing
– unreasonable delay in resolving a complaint violates due process
○ except if delay is because of a continuing investigation due to
complexities of the issues

Bail
– purpose is to guarantee appearance of the accused at the trial, or whenever
so required by the court
– who are entitled?
". persons charged with offenses punishable by death, reclusion perpetua or
life imprisonment, when evidence of guilt is not strong
$. persons convicted by trial courts pending appeal
%. persons who are members of the AFP facing a court martial
– when starts to be available?
○ available from the very moment of arrest up to the time of conviction by
 ○
final judgment or after appeal
– prior arraignment is not a precondition to the grant of bail
○ undermines accusedʼs right not to be put on trial except upon valid
complaint or information sufficient to charge him with a crime and right to
bail
– constitutional provisions connected to bail:
○ suspension of privilege of the writ of habeas corpus does not impair the
right to bail
○ excessive bail is not required
– bail can be granted to extradition and deportation proceedings
○ extradition entails deprivation of liberty of the extraditee
○ means employed to attain the purpose of extradition is also the machinery
of criminal law
○ while administrative, it bears all earmarks of a criminal process
○ extraditee bears the onus probandi to show that he or shee is not a flight
risk
◆ clear and convincing evidence shall be used
– see Remedial law H.O.

Presumption of innocence
– in all criminal prosecutions, the accused shall be presumed innocent until the
contrary is proved
– can only be invoked by individuals
– equipoise rule: when evidence of both sides is equally balanced, constitutional
presumption of innocence should tilt the scales in favor of the accused
– few considerations:
". prosecution has the burden to prove the guilt of the accused beyond
reasonable doubt
◆ must rely on the strength of its evidence and not in the weakness or
absence of evidence of defense
◆ if prosecution fails to discharge this burden, accused deserves an
acquittal
$. flight, in the absence of a credible explanation, would be a circumstance
from which an inference of guilt might be established
◆ however, non-flight may not be construed as an indication of
innocence
%. presumption that official duty was regularly performed cannot, by itself,
prevail over the constitutional presumption of innocence

Right to be heard
– person must be heard before being condemned
– based on principle of due process
Assistance of counsel
– accused is amply accorded legal assistance extended by a counsel who
commits himself to the cause of the defense and acts accordingly
○ efficient and truly decisive legal assistance
○ not simply a perfunctory representation
◆ PAO lawyer is considered as an independent counsel
– purpose is to preclude slightest coercion as would lead accused to admit
something else
– right commences from the moment the investigating officer starts to ask
questions to illicit information, confession or admission
○ not subject to waiver in:
◆ trial
◆ custodial investigation
– not necessarily required in:
○ administrative investigations
○ police line-up

Right to be informed of the nature and cause of accusation

– purpose:
". to furnish the accused with such a description of the charge against him
as will enable him to make his defense
$. to avail himself of his conviction or acquittal for protection against further
prosecution for the same cause
%. to inform the court of the facts alleged so that it may decide whether they
are sufficient in law to support a conviction, if one should be had
– requisites:
". information must state the name of the accused
$. designation given to the offense by statute
◆ determined from the recital of facts in the information
%. statement of the acts or omission so complained of as constituting the
offense
&. name of the offended party
'. approximate time and date of commission of the offense
◆ precise time is required if it is a material ingredient of the offense
(. place where offense was committed
o. every element of the offense must be alleged in the complaint or
information
– cannot be waived, except
○ can only waive the right to enter plea
○ accused refuse to be informed of the nature and cause of accusation
against them
○ failure to object to multiple offenses in a single information
– Variance doctrine:
 ○ there is a difference between the crime charged and what was proved
○ accused may still be convicted on what was proved, provided it is
necessarily included in the crime charged

Right to speedy, impartial, and public trial

Right to speedy trial
– free from vexatious, capricious and oppressive delays
– refers to criminal prosecutions at trial stage
– following factors may be considered in determining WON right is violated:
". duration of the delay
$. reason therefor
%. assertion of the right or failure to assert it
&. prejudice caused by such delay
– denial of this right is a ground for acquittal
– RA 8694, Speedy Trial Act
○ arraignment shall be held within 30 days from filling of information or from
date accused appeared in court
○ trial shall commenced within 30 days from arraignment
◆ entire period shall not exceed 180 days unless authorized by Chief
Justice
○ right under this may be waived

Right to an impartial trial

– accused is entitled to cold neutrality of an impartial judge, who is free from
interest or bias
– pervasive publicity is not per se prejudicial to the right of the accused to a fair
trial

Right to a public trial

– intended to prevent possible abuses which may be committed against the
accused
○ belongs to the accused
○ not synonymous with publicized trial
– attendance at the trial is open to all, irrespective of their relationship to the
accused
○ except:
". if evidence to be adduced is offensive to decency or public morals
$. tendency of a high profile case to generate undue publicity with its
concomitant undesirable effects weighs heavily against broadcasting
the trial
– satisfied if:
○ members of the public and the press have opportunity to attend the trial
and to report what they have observed
 ◆ should not be confused with freedom of the press and publicʼs right to
know

Right of confrontation
– right to cross-examine the complainant and witnesses
○ witnesses must be presented during trial
○ if violated, testimony/affidavits of witness should be excluded; except
(waiver):
". failure to cross-examine is due to fault of accused
$. failure to cross-examine is not due to fault of prosecution
– demandable only during trial; not available in PI

Compulsory process
– right to secure the attendance of witnesses and production of evidence
– means available:
". subpoena ad testificandum and subpoena duces tecum
$. depositions and other modes of discovery
%. perpetuation of testimonies
– requisites for compelling attendance of witness:
". witness is really material
$. attendance of the witness was previously obtained
%. witness will be available at the time desired
&. no similar evidence could be obtained
– exceptions:
". dying declarations and all exceptions to the hearsay rule
$. trial in absentia
%. child testimonies

Trial in absentia
– purpose is to speed up the disposition of criminal cases
– allows accused to be absent during trial; requisites:
". accused has been validly arraigned
$. accused has been duly notified of the dates of hearing
%. failure to appear is unjustifiable
◆ one who jumps bail (escapes, flees to a foreign country) can never
offer a justifiable reason for his non-appearance
– after trial in absentia, court can render judgment by:
○ recording the judgment in the criminal docket
○ copy served upon accusedʼs counsel
○ service of notice requiring accused to be present at promulgation to:
◆ bondsmen/warden and counsel
– presence of accused in mandatory in the ff:
". arraignment and plea
 $. during trial, for identification
◆ unless:
– accused has already stipulated on his identity during the pre-trial
– that he is the one who will be identified by the witnesses as
accused
◆ court may issue summons for his arrest
%. promulgation of sentence
◆ except for light offenses
◆ absence of counsel will not affect validity

RIGHT AGAINST DOUBLE JEOPARDY

– no person shall be twice put in jeopardy of punishment for the same offense
– if an act is punished by a law and an ordinance, conviction or acquittal under
either shall constitute a bar to another prosecution for the same act

Requisites; scope
". valid complaint or information
○ does not attach if PI only
$. filed before a competent court
%. arraignment of the accused, to which he had pleaded
○ grant of MTQ may be appealed (no DJ), if MTQ is filed before accused
enters plea
&. defendant was previously acquitted or convicted, or case dismissed or
otherwise terminated without his express consent
○ conviction or acquittal of a quasi-offense bars subsequent prosecution for
the same quasi-offense, regardless of its various resulting acts
○ online libel is not new crime; still punished under RPC; RA 10175 merely
establishes computer system as another means of publication
○ instances where there is no DJ:
◆ re-taking of testimony and taking over of a new judge
◆ where withdrawal of appeal is denied by MTC, and judgment is
rendered by RTC
◆ promulgation of only one part of decision, as to another part

Scope
– identical offenses
– any attempt to commit the same or frustration thereof
– any offense which necessarily includes or is necessarily included in the
offense charged

Limitations
". trial court acted with grave abuse of discretion amounting to lack or excess of
 ".
jurisdiction
○ denial of Stateʼs right to due process
$. accused was not acquitted nor was there a valid and legal dismissal or
termination of the case
%. dismissal was during PI
&. does not apply to administrative cases
'. dismissal or termination of the case was with the express consent of the
accused
○ not available when case is dismissed other than on the merits, or other
than by acquittal or conviction upon motion of the accused personally, or
through counsel
◆ except:
– based on insufficiency of evidence
– because of denial of accusedʼs right to speedy trial
– accused is discharged as a state witness
(. when case was provisionally dismissed
o. graver offense developed due to supervening facts arising from the same act
or omission constituting the former charge
○ Doctrine of Supervening Event
◆ accused may still be prosecuted for another offense if a subsequent
development changes the character of the first indictment under
which he may have already been charged or convicted
s. facts constituting the graver charge became known or were discovered only
after a plea was entered in the former complaint or information
t. plea of guilty to a lesser offense was made without consent of prosecutor
and of offended party
"u. accused appealed the judgment of conviction

EX POST FACTO LAWS AND BILLS OF ATTAINDER

Ex post facto laws
– prohibition of retrospectivity of penal laws
○ penal laws:
◆ acts of the legislature which prohibit certain acts and establish
penalties for their violations
◆ those that define crimes, treat of their nature, and provide for their
punishment
○ refers to criminal matters only, which works to the prejudice of the
accused
◆ not applicable to suspensions; nature is merely preventive
◆ not applicable to law prospective in application
◆ not applicable to treaties; not criminal law or procedure
◆ not applicable to Probation law; not penal in character, prospective
◆ not applicable to imposition of back taxes in Real property taxation
 – kinds:
". makes an act, which was innocent when done, criminal and punishes such
action
$. aggravates a crime or makes it greater than when it was committed
%. changes punishment
◆ inflicts a greater punishment than the law annexed to the crime when
it was committed
&. alters legal rules of evidence
◆ receives less or different testimony than the law required at the time
of commission of the offense
◆ in order to convict the defendant
'. assumes to regulate civil rights and remedies only
◆ effect: imposes penalty or deprivation of a right for something which
when done was lawful
(. deprives a person accused of a crime of some lawful protection to which
he has become entitled
◆ such as protection of a former conviction or acquittal, or a
proclamation of amnesty

Bills of Attainder
– legislative act that inflicts punishment without trial
– prohibited
– how to determine?
○ statute applies either to a named individuals or easily ascertainable
members of a group, in such a way as to inflict punishment on them
without a judicial trial
– kinds:
". bill of attainder proper
◆ ex. legislative imposition of the death penalty
$. bill of pains and penalties
◆ ex. imposition of a lesser penalty

ADMINISTRATIVE LAW

GENERAL PRINCIPLES
Definition
– a branch of public law fixing the organization and determines the competence
of administrative authorities, and indicates the individual remedies for the
violation of the rights

Scope
". fixes administrative operation and structure of the government
$. executes or enforces that which is entrusted to administrative authorities
 ○ those charged with amplification, application and execution of the law
%. governs public officers and creates administrative officers
&. provides remedies to those aggrieved by these agencies
'. governs judicial review
(. includes rules, regulation, orders and decisions made by administrative
authorities
o. includes the body of judicial doctrines on any of the above

Kinds of Administrative Law

". statutes setting up administrative authorities
$. body of doctrines and decisions dealing with the creation, operation, and
effect of determinations and regulations of such administrative authorities
%. rules, regulations, or orders of administrative authorities in pursuance of the
purposes, for which administrative authorities were created or endowed
○ ex. IRRs, circulars, memoranda
&. determinations, decisions and orders of administrative authorities in the
settlement of controversies arising in their particular field

ADMINISTRATIVE AGENCIES
– an organ of government, other than a court and the legislature, which affects
the rights of private parties either through adjudication or rule making
○ instrumentality:
◆ 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
○ agency:
◆ any of the various units of the government, including a department,
bureau, office, instrumentality, or GOCCs, or a local government or a
distinct unit
○ department:
◆ executive department created by law
○ bureau:
◆ any principal subdivision or unit of any department
○ office:
◆ any major functional unit of a department or bureau including regional
office
◆ any position held or occupied by individual persons, whose functions
are defined by law or regulation
– creation and abolition is a legislative function; except if delegated by law to
President, or in his exercise of executive power
○ creation
 ". Constitutional provision
$. authority of law
%. legislative enactment
○ elements of abolition
". in good faith
$. not for political or personal reasons
%. not in violation of law
○ reorganization
◆ reduction of personnel, consolidation of offices, or abolition by reason
of economy or redundancy of functions
– kinds:
". for offers gratuity, grant, or special privilege
◆ ex. GSIS, SSS, PAO
$. to carry on certain functions of government
◆ ex. BIR, BOC, BOI
%. for performance of business service for the public
◆ ex. PNR, MWSS, NFA, NHA
&. for regulation of businesses imbued with public interest
◆ ex. Insurance Commission, LTFRB, NTC
'. for regulation of private businesses and individuals by virtue of police
power
◆ ex. SEC, MTRCB
(. for adjustment of individual controversies due to strong social policy
involved
◆ ex. NLRC, ECC, SEC
o. to make government a private party
◆ ex. GSIS

POWERS OF ADMINISTRATIVE AGENCIES

– regulation and control over conduct and affairs of individuals for their own
welfare
– promulgation of rules and regulations to better carry out the policy of the
legislature or such as are devolved upon the administrative agency by the
organic law
– may be discretionary or ministerial

Rule-making power
– exercise of delegated legislative power, involving no discretion as to what the
law shall be, but merely the authority to fix the details in the execution or
enforcement of a policy set out in the law itself
○ doctrine of subordinate legislation: power of administrative agency to
promulgate rules and regulations on matters within their own
specialization
 – administrative legislation must not override, but remain consistent with the law
they seek to apply and implement

Kinds of administrative rules and regulations

". supplementary or detailed legislation
○ fixes the details in execution and enforcement of a policy set out in the law
○ in nature of subordinate legislation; implements a primary legislation
$. interpretative legislation
○ construes or interprets the provisions of a statute to be enforced
%. contingent legislation
○ made upon the existence of certain facts or things upon which the
enforcement of the law depends
&. procedural
'. internal
(. penal

Requisites for validity

". must be issued under the authority of law
○ valid law which delegates legislative powers to the agency
$. must be within the scope and purview of the law
○ germane to the objectives and purposes of the law
○ cannot extend the law or expand its coverage
%. must be reasonable
○ must not be issued arbitrarily and capriciously
&. must be published in the Official Gazette or in a newspaper of general
circulation
○ and file 3 certified copies with Office of the National Administrative
Register (ONAR) of the UPLC
○ except:
◆ interpretative regulations
◆ internal regulations
◆ letters of instructions
'. (additional for rules with penal sanctions)
○ must declare violation of the rule punishable
○ must define or fix the penalty

Adjudicatory power
– power of administrative authorities to make determinations of facts in the
performance of their official duties and to apply the law as they construe it to
the facts so found
– judicial in nature
– limited to the powers specifically granted to the body
Administrative due process
– summary in nature
– technical rules of procedure and evidence are not controlling
– requisites (Ang Tibay vs CIR)
". right to a hearing
◆ includes right to present oneʼs case and submit evidence in support
thereof
$. tribunal must consider the evidence presented
%. decision must be supported by evidence
&. evidence must be substantial
'. decision must be based on the evidence adduced at the hearing or at
least contained in the record, and disclosed to the parties
(. tribunal or body or any of its judges must act on its own independent
consideration of the law and facts of the controversy in arriving at a
decision
o. board or body should render decision in such a manner that parties can
know the various issues involved and the reasons for the decision
rendered
– non-observance of notice and hearing will invalidate the proceedings
○ may be remedied by an order of a subsequent hearing
– does not necessary require the assistance of counsel
– administrative decisions do not form part of the legal system

Administrative appeal and review

– appeal:
○ review by a higher agency of decisions rendered by an administrative
agency, commenced by petition of an interested party
○ taken to the Department Head
◆ exception: appeal is governed by a special law
– review:
○ a superior officer or department head, upon his or her own volition, may
review the decision of an administrative agency or of a subordinate
pursuant to the power of control
◆ a final and executory decision can no longer be altered by an
administrative review

Administrative res judicata

– decisions and orders of administrative agencies, upon finality, have the force
and binding effect of a final judgment within the purview of the doctrine of res
judicata
○ forbids the reopening of the matter
– does not apply to:
". naturalization proceedings or those involving citizenship and immigration
 ◆ may apply, under following conditions:
– question of citizenship is resolved by a court or an administrative
body as a material issue in the controversy after a full-blown
hearing
– with active participation of the SolGen
– findings made by the body is affirmed by the SC
$. labor relations
%. those affecting family relations, personal status or condition, and capacity
of persons

Fact-finding, investigative, licensing, and rate-fixing powers

Fact-finding
– power to:
○ declare the existence of facts which call into operation the provisions of a
statute
○ ascertain and determine appropriate facts as a basis for procedure in
enforcement of particular laws
– findings of fact, if supported by substantial evidence, are binding to the courts

Investigative
– power to inspect, secure, or require disclosure of information by means of
accounts, records, reports, statements and testimony of witnesses
○ issuance of subpoena
○ power to cite in contempt
◆ if no express power; invoke the aid of the RTC
– only if expressly allowed by law
– must be in connection with matters they are authorized to investigate
– cannot issue warrants of arrest
○ BID may issue arrest of persons ordered to be deported

Licensing
– power to grant, deny, suspend, or revoke, a license, permit, franchise, or
certificate of public convenience and necessity
○ license: whole or any part of any agencyʼs permit, certificate, passport,
clearance, approval, registration, charter, membership, statutory
exemption or other form of permission, or regulation of the exercise of a
right or privilege
– must be with notice and hearing

Rate-fixing
– power delegated by the legislature to administrative agencies for the latter to
fix the rates which public utility companies may charge the public
○ legislature may directly provide for these rates, wages, or prices
 ○ must be reasonable and just and non-confiscatory
○ established in the manner prescribed by legislature
○ cannot be re-delegated
– may be performed either through its:
○ rule-making power
◆ applies to all enterprises
○ adjudicatory power
◆ applies exclusively to a particular party
– no rate-fixing rule or final order shall be valid unless the proposed rates shall
have been published in a newspaper of general circulation at least 2 weeks
before the 1st hearing

JUDICIAL REVIEW
– re-examination or determination by courts in an appropriate case instituted by
a party aggrieved as to whether the questioned act, rule, or decision has been
validly or invalidly issued, or whether the same should be nullified, affirmed or
modified
– doctrine of ripeness for review:
○ similar to exhaustion of administrative remedies except that it applies to
the rule-making power and to administrative action which is embodied
neither in rules and regulations nor in adjudication or final order
– limitations:
". final and executory decisions cannot be made the subject of judicial
review
$. acts involving a political question are beyond judicial review
◆ exception: when there is an allegation of grave abuse of discretion
%. courts are bound by the findings of fact of an administrative agency
– which court? Court of Appeals, Rule 43

Doctrine of primary administration jurisdiction

– courts cannot or will not determine a controversy involving question within the
jurisdiction of an administrative body prior to the decision of the latter where
the:
". question demands administrative determination requiring special
knowledge, experience and services of the administrative tribunal
$. question requires determination of technical and intricate issues of a fact
%. uniformity of ruling is essential to comply with purposes of the regulatory
statute administered
– case is within concurrent jurisdiction of the court and the agency
○ unlike in exhaustion of admin remedy
– relief must first be obtained in administrative proceeding
– may be motu proprio raised by a court
○ judicial process is suspended pending referral of the claim to an
 ○
administrative agency
○ if parties will not be disadvantaged, dismiss the case with prejudice
– exceptions:
". there is estoppel on the part of the party invoking the doctrine
$. the challenged administrative act is patently illegal, amounting to lack of
jurisdiction
%. there is unreasonable delay or official inaction that will irretrievably
prejudice the complainant
&. amount involved is relatively small so as to make the rule impractical and
oppressive
'. question involved is purely legal and will ultimately have to be decided by
the courts of justice
(. judicial intervention is urgent
o. its application may cause great and irreparable damage
s. the controverted acts violate due process
t. issue of non-exhaustion of administrative remedies has been rendered
moot
"u. there is no other plain, speedy and adequate remedy
"". strong public interest is involved
"$. in quo warranto proceedings

Doctrine of exhaustion of administrative remedies

– calls for resorting first to the appropriate administrative authorities in the
resolution of a controversy falling under their jurisdiction
○ adverse decisions must first be appealed to the administrative superiors
up to the highest level before the same may be elevated to the courts of
justice for review
– only applies to decisions made in exercise of adjudicatory powers
– non-compliance is not jurisdictional
○ only a ground for a motion to dismiss for failure to comply with a condition
precedent; which is waivable
– exceptions:
". violation of due process
$. estoppel on the part of the administrative agency concerned
%. issue involved is a purely legal question
&. it would be fruitless
'. there is irreparable injury
(. administrative action is patently illegal amounting to lack or excess of
jurisdiction
o. subject matter is a private land in land proceedings
s. it would be unreasonable (delay)
t. no administrative review is provided by law
"u. rule does not provide a plain, speedy, and adequate remedy
 "". issue of non-exhaustion of administrative remedies has been rendered
moot
"$. there are circumstances indicating the urgency of judicial intervention
"%. it would amount to a nullification of a claim
"&. rule on qualified political agency applies
◆ respondent is a Department Secretary whose acts as an alter ego of
the President bears the implied and assumed approval of the latter
◆ ensures speedy access to the courts when most needed

Doctrine of finality of administrative action

– no resort to courts will be allowed unless administrative action has been
completed and there is nothing left to be done in the administrative structure
– exceptions:
". grant of relief to preserve status quo pending further action by the
administrative agency
$. essential to the protection of rights asserted from the injuries threatened
%. administrative officer assumes to act in violation of the Constitution and
other laws
&. order is not reviewable in any other way and complainant will suffer great
and obvious damage if the order is carried out
'. interlocutory order affects the merits of a controversy
(. order made in excess of power, contrary to specific prohibition in the
statute governing the agency and thus operating as a deprivation of a
right assured by the statute
o. review is allowed by statutory provisions

LOCAL GOVERNMENTS

AUTONOMOUS REGIONS AND THEIR RELATION TO THE

NATIONAL GOVERNMENT
– a political and territorial subdivision that has a certain degree of freedom from
the national government
– autonomous regions in PH
○ Cordillera Administrative Region
○ Autonomous Region of Muslim Mindanao (IX and XII)
– under the principles of local autonomy, decentralization of power has been
given to autonomous regions
○ involves the abdication of political power in favor of the autonomous LGUs
as to grant them the freedom to chart their own destinies and to shape
their futures with minimum intervention from the central governments
○ amounts to self-immolation since the autonomous LGUs become
accountable not to the central authorities but to their constituencies
 – aims to:
○ permit determinate groups with common traditions and shared social-
cultural characteristics to freely develop their ways of life and heritage
○ exercise their rights
○ be in charge of their own affairs through the establishment of a special
governance regime for certain member communities who choose their
own authorities from within themselves
○ exercise the jurisdictional authority legally accorded to them to decide
their internal community affairs
– not unlimited but involves only the powers enumerated by Section 20, Article
X of the 1987 Constitution and by the acts of Congress
– powers are guardedly, not absolutely, abdicated by the National Government

PUBLIC CORPORATIONS
Concept; distinguished from Government-Owned or Controlled
Corporations
– one created by the State, either by general or special act for purposes of
administration of local government, or rendering service for the public interest
○ test: determine its relationship to State

Distinguished from Government-Owned or Controlled Corporations

– requisites:
". any agency organized as a stock or non-stock corporation
$. vested with functions relating to public needs whether governmental or
proprietary in nature
%. 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 at least 51 of its capital stock
– distinctions:
○ the purpose of a public corporation is the administration of local
government or rendering service for the public interest; whereas the
purpose of a GOCC is the performance of functions relating to public
needs, whether governmental or proprietary in nature
○ a public corporation is created by the State; whereas a GOCC is created
by Congress or by incorporators
○ a public corporation is created through legislation; whereas a GOCC is
created either by original charters or special laws, or by the RCC, as a
stock or non-stock

Classifications
Quasi-corporations
 – private corporations that render public service, supply public wants, or pursue
other eleemosynary objectives
– while organized for gain or benefit of its members, they are required by law to
discharge functions for the public benefit
– a specie of private corporation, but the qualifying factor is the type of service
the former renders to the public
○ if a private corporation performs a public service, then it becomes a
quasi-public corporation

Municipal corporations
– political and corporate body constituted by the incorporation of inhabitants for
the purpose of local government
– established by law, partly as an agency of the State to assist in the civil
government of the country, but chiefly to regulate and administer the local or
internal affairs of the city, town or district which is incorporated

Elements
". legal creation or incorporation
○ law creating or authorizing the creation or incoporation
$. corporate name
○ Sangguniang Panlalawigan may, in consultation with the Philippine
Historical Commission, change the name of component cities and
municipalities
○ must be upon recommendation of the sanggunian concerned
○ must be ratified in a plebiscite in the political unit directly affected
%. inhabitants
&. territory

Nature and functions

– a body politic and corporate endowed with powers to be exercised by it in
conformity with law
– dual function:
". public or governmental:
◆ acts as an agent of the State as the government of the territory it
occupies and its inhabitants within the municipal limits
◆ municipal corporation exercises, by delegation, a part of the
sovereignty of the state
$. private or proprietary:
◆ acts as an agent of the community in the administration of local affairs
which is wholly beyond the sphere of public purposes, for which its
governmental powers are conferred
◆ acts as separate entity for its own purposes, and not as a subdivision
of the State
Requisites for creation, conversion, division, merger or dissolution
– exercised only through:
". a law enacted by Congress in case of province, city, municipality or any
other political subdivision
$. an ordinance passed by the Sangguniang Panlalawigan or Panlungsod
concerned in the case of a barangay located within its territorial
jurisdiction, subject to such limitations and requirements prescribed in the
LGC
– requisites:
". plebiscite
◆ by majority vote; in the political unit or units directly affected
– residents of the mother province must participate
◆ held within 120 days from effectivity of law or ordinance, or fixed date
$. income
◆ sufficient; based on acceptable standards to provide for all essential
government facilities and services and special functions,
commensurate with the size of its population
◆ average annual income for the last 2 consecutive years should be at
least:
– province: P20M
– highly urbanized city: P50M
– city: P100M
– municipality: P2.5M (only include locally generated average annual
income)
%. population
◆ determined as the total number of inhabitants within the territorial
jurisdiction of the LGU concerned
◆ required minimum population:
– barangay: 2,000
◆ exception barangays in the ff:
– Metro Manila: 5,000
– Highly urbanized cities: 5,000
– municipality: 25,000
– city: 150,000
– highly urbanized cities: 200,000
– province: 250,000 (requirement of population is not
indispensable; merely an addition to the income requirement)
&. land
◆ must be contiguous
– exception: if it is comprised of 2 or more islands, OR is separated
by a LGU independent to the others (also exempt from land area
requirement)
 ◆ must be properly identified by metes and bounds with technical
descriptions, and sufficient to provide for such basic services and
facilities
◆ area requirements:
– barangay: may be created out of a contiguous territory
– municipality: 50 sq. km
– city: 100 sq. km
– province: 2,000 sq.km
– additional requirement for division and merger
". shall not reduce the income, population or land area of the LGU/s
concerned to less than minimum requirements
$. income classification of the original LGUs shall not fall below its current
income classification prior to division
%. assets and liabilities of the LGUs affected shall be equitably distributed
between the LGUs affected and new LGU
&. plebiscite
– ground for abolition:
○ income, population, land area has been irreversibly reduced to less than
the minimum standards prescribed for its creation, as certified by the
national agencies to Congress or to the sanggunian concerned

PRINCIPLES OF LOCAL AUTONOMY

– local autonomy means decentralization
○ does not make LGUs sovereign with the state
○ only administrative powers over local affairs are delegated to political
subdivisions
– forms of local autonomy:
". decentralization of administration
◆ central government delegates administrative powers to political
subdivisions in order to broaden the base of the government power,
and incidentally making LGUs more responsive and accountable
◆ relieves the central government of the burden of managing local
affairs and enables it to concentrate on national concerns
$. decentralization of power (see above)
– forms of decentralization:
". deconcentration (administrative decentralization
◆ administrative in nature
◆ involves the transfer of functions or the delegation of authority and
responsibility from the national office to the regional and local office
$. devolution
◆ connotes political decentralization, or the transfer of powers,
responsibilities, and resources for the performance of certain
functions from the central government to the LGUs
 ◆ more liberal form of decentralization
◆ consequences:
– shall include the transfer to the LGU the records, equipment, and
other assets and personnel of national agencies and offices
corresponding to the devolved powers, functions, and
responsibilities
– personnel of said national agencies or offices shall be absorbed
by the LGUs to which they belong or in whose areas they are
assigned to the extent that it is administratively viable
– RDs who are career executive service officers and other officers
of similar rank in the said regional offices who cannot be absorbed
by the LGU shall be retained by the national government, without
any diminution of rank, salary or tenure

POWER OF LOCAL GOVERNMENT UNITS

General Welfare clause

– LGUs shall exercise powers that are necessary, appropriate, or incidental for
its efficient and effective governance, and those which are essential to the
promotion of general welfare
– branches:
". General Legislative power
◆ authorizes the municipal council to enact ordinances and make
regulations not repugnant to law, as may be necessary to carry into
effect and discharge the powers and duties conferred upon the
municipal council
$. Police Power proper
◆ authorizes the municipality to enact ordinances as may be necessary
and proper for the health and safety, prosperity, morals, peace, good
order, comfort, and convenience of the municipality and its
inhabitants, and for the protection of their property
– requisites:
". interests of the public generally, as distinguished from those of a
particular class, require the interference of the state
$. means employed are reasonably necessary for the attainment of the
object sought to be accomplished and not duly oppressive
%. exercisable only within the territorial limits of the LGU
◆ exception: protection of water supply
&. must not be contrary to the Constitution and the laws
– considerations:
○ LGUs may declare a particular thing as a nuisance per se
◆ those which affect the immediate safety of persons and property
○ LGUs have the power to issue, revoke, withdraw or restrict licenses and
 ○
permits
◆ for regulation and proper supervision of businesses, trades or
occupation
◆ conditions must be reasonable; cannot amount to an arbitrary
interference

Eminent domain
– see discussion in other H.O.

Taxing power
– power of LGUs to tax is pursuant to the Constitution
– subject to limitations provided under the LGC
– taxes shall be uniform in each LGUs
– local fiscal autonomy
○ LGUs have the power to create their own sources of revenue
○ LGUs have equitable share in the national taxes released by the national
government
◆ automatic release as mandated by the Constitution
– shall be made within 5 days after every quarter of the year
– shall not be subject to any lien or holdback that may be imposed
by the national government for whatever purpose
◆ a “no report, no release” policy may not be validly enforced against
offices vested with fiscal autonomy
○ power to allocate their resources in accordance with their own priorities;
extends to preparation of budgets
– main sources of revenues:
". taxes, fees, and charges
$. Internal Revenue Allotment (IRA)
◆ just share in the national taxes (40% local and 60% national)
◆ share cannot be reduced
– exception: there is unmanageable public sector deficit
%. equitable share in the proceeds of the utilization and development of the
national wealth within their areas
◆ law is needed to implement this provision
– requisites of valid tax ordinance
". tax is for a public purpose
$. rule on uniformity of taxation is observed
%. either the person or property taxed is within the jurisdiction of the
government levying the tax
&. in the assessment and collection of certain kinds of taxes, notice and
opportunity for hearing are provided
'. publication of the tax ordinance, within 10 days after their approval, for 3
consecutive days in a newspaper of local circulation
 ◆ in provinces, cities, municipalities where there are no newspapers of
local circulation, it may be posted in at least 2 conspicuous, publicly
accessible places
○ SOJ has jurisdiction to determine legality and constitutionality of tax
ordinance or revenue measures

Closure and opening of roads

– LGUs may, pursuant to an ordinance, permanently or temporarily close or open
any local road, alley, park, or square falling within its jurisdiction
○ no need for ordinance for closure of public roads
– rules on permanent closure
". must be approved by at least 2/3 of all the members of the Sanggunian
$. when necessary, provide for an adequate substitute for the public facility
%. adequate provision for the public safety must be made
&. there exists a compelling reason or sufficient justification, ex.:
◆ change in land use
◆ establishment of infrastructure facilities, projects
◆ other justifiable reasons as public welfare may require
'. property may be used or conveyed for any purpose for which other real
property may be lawfully used or conveyed
(. no freedom park shall be closed permanently without provision for its
transfer or relocation to a new site
– rules on temporary closure
". must be for actual emergency, fiesta celebration, public rallies, agricultural
or industrial fairs, or an undertaking of public works and highways,
telecommunications and water work projects
$. duration shall be specified
%. cannot apply to those activities not officially sponsored or approved by
the LGU

Legislative power
– every power to pass ordinances given to a municipality, there is an implied
restriction that the ordinances shall be consistent with the general law
– exercised by the sanggunian in case of LGUs
○ they have no contempt and subpoena powers
– ordinance
○ a rule of conduct or of action, laid down by the municipal authorities that
must be obeyed by the citizens
○ may be vetoed by the local chief execution on the ground that it is
prejudicial to public welfare
– resolution
○ merely a declaration of the sentiment or opinion of a lawmaking body on a
specific matter
Requisites for valid ordinance
". must not contravene the constitution and any statute
$. must not be unfair or oppressive
%. must not be partial or discriminatory
&. must not prohibit, but may regulate trade
'. must not be unreasonable
(. must be general in application and consistent with public policy

Local initiative and referendum

– initiative: legal process whereby the registered voters of LGU may directly
propose, enact or amend any ordinance
○ may also apply to resolutions
○ shall not be exercised for more than once a year
○ shall extend only to subjects or matters which are within the legal powers
of the sanggunian to enact
○ if sanggunian adopts in toto a proposition and approved by the local chief
executive, initiative is cancelled; those who are opposed may instead
apply for it
– referendum: legal process whereby the registered voters of the LGU may
approve, amend or reject any ordinance enacted by the sanggunian
– procedure for initiative
". number of voters who should file petition with the Sanggunian
◆ province and cities: not less than 1000 registered voters
◆ municipality: at least 100 registered voters
◆ barangay: at least 50 registered voters
$. sanggunian concerned has 30 days to act on the petition
◆ if does not take any favorable action, proponents may invoke the
powers of initiative, giving notice to sanggunian
%. proponents will have the ff: number of days to collect required number of
signatures
◆ provinces and cities: 90 days
◆ municipalities: 60 days
◆ barangay: 30 days
&. signing of petition in a public place, before the election registrar or his
designated representatives, in the presence of a representative of the
proponent and of the sanggunian concerned
'. date of initiative is set by COMELEC if the required number of signatures
has been obtained
– referendum shall be held under the control and direction of the COMELEC
within
○ provinces and cities: 60 days
○ municipalities: 45 days
 ○ barangay: 30 days
– rule on repeal, modification, amendment of ordinance approved in an initiative
or referendum
○ shall not be repealed, modified or amended by the sanggunian within 6
months from the date of approval
◆ barangay: 18 months
○ may only be RMA, within 3 years after the period by a vote of 3⁄4 of all its
members

Ultra vires acts

– contracts which:
". are entered into beyond the express, implied or inherent powers of the
LGU
$. do not comply with the substantive requirements of law
– null and void and cannot be ratified or validated; doctrine of estoppel cannot
apply to validate a contract
○ does not apply to reenacted budget
– defective municipal contracts may be ratified if the cause of defect are:
○ non-compliance with the requirements of authority of the officer entering
into the contract and/or
◆ sanggunianʼs failure to impugn the contractʼs validity despite
knowledge of its infirmity is an implied ratification (loan is entered into
without prior authorization of sanggunian)
○ nonconformity with the formal requisites of a written contract

Corporate powers
". to have continuous succession in its corporate name
$. to sue and be sued
○ who will represent
◆ city legal officer for cities
◆ provincial fiscal for province (mandatory)
◆ municipal attorney for municipalities (mandatory)
○ who will initiate
◆ local chief executive, upon authority of the Sanggunian
◆ or sanggunian themselves
○ municipality, as an agency of the State engaged in governmental
functions, is immune from suit
◆ not liable for torts committed by agents
◆ liable if municipality is acting in a proprietary capacity
○ funds and properties of LGUs cannot be subject to writs of execution and
garnishent
◆ exception: there is already an allocation for satisfaction of monetary
judgment
%. to have and use a corporate seal
○ any new corporate seal or changes on such shall be registered with the
DILG
&. to a acquire and convey real or personal property
○ only properties owned in its private or proprietary capacity may be
alienated
○ all others, it is held in trust for the State for the benefit of its inhabitants
'. to enter into contracts
○ requisites:
". LGU has the express, implied or inherent power to enter into particular
contract
$. entered into by the proper department board, committee, officer or
agent
◆ no contract may be entered into by the local chief executive
without prior authorization by the sanggunian
%. must comply with certain substantive requirements:
◆ actual appropriation
◆ certificate of availability of funds
&. must comply with the formal requirements of written contracts
'. posted at a conspicuous place in the provincial capitol or the city,
municipal or barangay hall
(. to exercise such other powers as granted to corporations

NATIONAL ECONOMY AND PATRIMONY

– threefold goals:
". more equitable distribution of opportunities, income and wealth
$. sustained increase in the amount of goods and services produced by the
nation for the benefit of the people
%. expanding productivity
– regalian doctrine: all lands not appearing to be clearly of private dominion
presumably belong to the State

EXPLORATION, DEVELOPMENT, AND UTILIZATION OF

NATURAL RESOURCES
– only Filipino citizens and corporations or associations at least 60% of whose
capital is owned by Filipino citizens are qualified to take part in exploration,
development and utilization of natural resources
– as to marine wealth, only Filipino citizens are qualified
– 2 tests to determine Filipino ownership
". control test
◆ shares belonging to corporations or partnerships at least 60% of the
capital of which is owned by Filipino citizens shall be considered of
 ◆

Philippine nationality
◆ primary test
$. grandfather rule
◆ applies only when the 60-40 Filipino-foreign ownership is in doubt or
where there is reason to believe that there is non-compliance with the
provisions of the Constitution
◆ percentage of Filipino equity in a corporation is computed, in cases
where corporate shareholders are present, by attributing the
nationality of the second or even subsequent tier of ownership
– service contracts
○ entered into only with respect to minerals, petroleum, and other mineral
oils
○ crafted in accordance with a general law setting standard of uniform
terms, conditions and requirements
○ President shall be the signatory for the government
○ President shall report the executed agreement to Congress within 30 days

FRANCHISES, AUTHORITIES, AND CERTIFICATES FOR

PUBLIC UTILITIES
– what are public utilities
○ a business or service engaged in regularly supplying the public with some
commodity or service of public consequence, such as electricity, gas,
water, transportation, telephone or telegraph service
○ these are privately owned
– only Filipino citizens or corporations at least 60% of whose capital is Filipino
owned are qualified to acquire a franchise, certificate or any other form of
authorization
○ all officers must be citizens of the PH
○ capital means shares of stock entitled to vote in the election of directors
○ 60% must be full beneficial ownership of the OCS
– franchises are only required for operation of public utility, not for ownership
– Congress has an explicit authority to grant a public utility franchise
○ may validly delegate its authority to issue franchises of certain public
utilities to some administrative agencies
○ expires after 50 years, subject to renewal of Congress
– ownership requirement:
". advertising: 70% of capital must be owned by Filipino citizens
$. Mass Media: must be wholly owned by Filipino citizens
%. educational institutions: 60% of capital must be owned by Filipino citizens
– requisites of temporary take over
". there is national emergency
$. public interest so requires
 %. under reasonable terms prescribed by it

ACQUISITION, OWNERSHIP, AND TRANSFER OF PUBLIC

AND PRIVATE LANDS
– classification of lands of public domain
". agricultural
$. forest or timber
%. mineral lands
&. national parks
– requirements for conversion
". public domain > private land
◆ acquired from the government either by purchase or by grant
◆ there must be a positive act from the government
◆ mere issuance of title is not enough
$. alienable public land > private land
◆ held by a possessor, personally or through his predecessors-in-
interest, openly, continuously and exclusively for at least 30 years, or
since May 8, 1947
◆ must be agricultural; only President, by law, may classify or reclassify
public lands; DENR shall approve the classification and declare as
such as alienable
◆ portions that may be acquired or leased
– citizens: not more than 12 hectares by homestead, purchase,
grant; not more than 500 hectares by lease
– private corporations: not more than 1,000 hectares by lease,
renewable for another 25 years
– disposition of private lands
○ no private land shall be transferred or conveyed except to individuals,
corporations or associations qualified to acquire or hold lands of the
public domain
○ exceptions:
". foreigners who inherit through intestate succession
$. former natural-born citizen may be a transferee of private lands
subject to limitations provided by law
%. ownership in condominium units
&. parity right agreement, under the 1935 Constitution
◆ american citizens or corporations who acquired private lands
before July 3, 1974 valid as against private persons only

SOCIAL JUSTICE AND HUMAN RIGHTS

CONCEPT OF SOCIAL JUSTICE

– it is “neither communism, nor despotism, nor atomism, nor anarchy,” but the
humanization of laws and the equalization of social and economic force by the
State so that justice in its rational and objectively secular conception may at
least be approximated
– means the promotion of the welfare of all the people, the adoption by the
Government of measures calculated to insure economic stability of all
competent elements of society, through the maintenance of a proper
economic and social equilibrium in the interrelations of the members of the
community, constitutionally, through the adoption of measures legally
justifiable, or extra-constitutionally, through the exercise of powers underlying
the existence of all governments on the time-honored principle of salus populi
est supreme lex

ECONOMIC, SOCIAL, AND CULTURAL RIGHTS

– human rights relating to the workplace, social security, family life, participation
in cultural life, and access to housing, food, water, health care and education
– rights under the Constitution
". Labor
◆ afford full protection to labor, local and overseas, organized and
unorganized, and promote full employment and equality of
employment opportunities for all
◆ guarantee the rights of all workers to self-organization, collective
bargaining and negotiations, and peaceful concerted activitie
$. Agrarian and Natural resources reform
◆ by law, undertake an agrarian reform program founded on the right of
farmers and regular farmworkers who are landless, to own directly or
collectively the lands they till or, in the case of other farmworkers, to
receive a just share of the fruits
◆ encourage and undertake the just distribution of all agricultural lands
◆ provide support to agriculture
◆ protect the rights of subsistence fishermen
%. urban land reform and housing
◆ undertake, in cooperation with the private sector, a continuing
program of urban land reform and housing which will make available at
affordable cost, decent housing and basic services to under-
privileged and homeless citizens in urban centers and resettlement
areas
◆ urban or rural poor dwellers shall not be evicted nor their dwelling
demolished, except in accordance with law and in a just and humane
manner
– must be adequate consultation with them and the communities
where they are to be relocated
&. health
 ◆aendeavor to make essential goods, health and other social services
available to all the people at affordable cost
◆ priority for the needs of the under-privileged, sick, elderly, disabled,
women, and children
◆ endeavor to provide free medical care to paupers
'. women
(. peopleʼs organization
◆ respect the role of independent people's organizations to enable the
people to pursue and protect, within the democratic framework, their
legitimate and collective interests and aspirations through peaceful
and lawful means
o. human rights

PUBLIC INTERNATIONAL LAW

CONCEPTS
– public international law
○ body of legal principles, norms and processes which regulates the
relations of States and other international persons and governs their
conduct affecting the interest of the international community as a whole
○ grand divisions:
". Laws of Peace: govern normal relations between States in the absence
of war
$. Laws of War: govern relations between hostile or belligerent states
during wartime
%. Laws of Neutrality: govern relations between a non-participant State
and a participant State during wartime or among non-participating
States
– private international law / conflict of laws
○ that part of law which comes into play when the issue before the court
affects some fact, event or transaction that is so clearly connected with a
foreign system of law as to necessitate recourse to that system
– obligation erga omnes
○ an obligation of every State towards the international community as a
whole
○ all states have a legal interest in its compliance, and thus all States are
entitled to invoke responsibility for breach of such an obligation
○ examples: outlawing of acts of aggression and genocide, basic human
rights, protection from slavery and racial discrimination
– jus cogens (peremptory norm of general international law)
○ literally means compelling law
○ a norm accepted and recognized by the international community of States
as a whole as a norm from which no derogation is permitted and which
 ○

can be modified only by a subsequent norm of general international law

having the same character
○ all jus cogens rules create erga omnes obligations
○ elements
". a norm accepted and recognized by international community of states
as a whole
$. no derogation is permitted
%. which can only be modified by a subsequent norm having the same
character
– ex aequo et bono
○ literally means “according to the right and good” or “from equity and
conscience”
○ a judgment based on considerations of fairness, not on considerations of
existing law, that is, to simply decide the case based upon a balancing of
the equities

RELATIONSHIP BETWEEN INTERNATIONAL AND

PHILIPPINE DOMESTIC LAW
– two theories:
". monism
◆ both international law and domestic law are part of a single legal order
◆ international law is automatically incorporated into each nationʼs legal
system and that international law is supreme over domestic law
$. dualism
◆ affirms that the international law and municipal law are distinct and
separate
◆ each is supreme in its own sphere and level of operation
– doctrine of incorporation
○ rules of international law form part of the law of the land and no further
legislative action is needed to make such rules applicable in the domestic
sphere
○ does not by any means imply the primacy of international law over national
law in the municipal sphere
○ examples:
". pacta sunt servanda
◆ international agreements must be performed in good faith
◆ a state which has contracted a valid international agreement is
bound to make in its legislation such modification as may be
necessary to ensure fulfillment of the obligation undertaken
$. rebus sic stantibus
◆ agreement is valid only if the same conditions prevailing at time of
contracting continue to exist at the time of performance
 %. par in parem non habet imperium
◆ State Immunity from suit
&. right of states to self-defense
'. right to self-determination of people
– principle of auto-limitation
○ any State may by its consent, express or implied, submit to a restriction of
its sovereign rights; through
◆ limitations imposed by the very nature of membership in the family of
nations
◆ limitations imposed by treaty stipulations

SOURCES OF INTERNATIONAL LAW

– primary sources
". international conventions, whether general or particular, establishing rules
expressly recognized by the contesting state
$. international custom, as evidence of a general practice accepted as law
%. general principles of law recognized by civilized nations
– subsidiary sources
". decisions of international tribunals
$. teachings of the most highly qualified publicists of various nations
– classification: hard law vs soft law
". hard law
◆ means binding laws
◆ to constitute law, a rule, instrument or decision must be authoritative
and prescriptive
◆ includes treaties or international agreements, as well as customary
laws
$. soft law
◆ non-binding rules of international law
◆ of relevance and importance to the development of international law
for the ff:
– has the potential of law-making
– may provide evidence of an existing customary rule
– may be formative of the opinio juris or of State practice that
creates a new customary rule
– may be helpful as a means of a purposive interpretation of
international law
– may be incorporated within binding treaties but in provisions
which the parties do not intend to be binding
– may in other ways assist in the development and application of
general international law

Article 38, International Court of Justice Statute

– does not create a hierarchy of sources of international law
– apply the ff principles to determine hierarchy of sources
". ex specialis derogat lex generalis: a special rule prevails over a general
rule
$. lex superior derogat lex inferiori: laws of a superior hierarchy prevail over
the laws of an inferior hierarchy
◆ relevant with regard to rules of jus cogens but not as a conflict-
resolving device with regard to treaty rule and a customary rule
%. lex posteriori derogat lex prior: if laws are of the same hierarchy, the most
recent law prevails over earlier inconsistent law
– international conventions or treaties
○ types:
". contract treaties
◆ bilateral arrangements concerning matters of particular or special
interest to the contracting parties
$. law making treaty
◆ declaring, confirming, or defining their understanding of what the
law is on a particular subject
◆ stipulating or laying down new general rules for future
international conduct
◆ creating new international institutions
– international custom (customary international law)
○ one that, whether it has been codified in a treaty, has binding force of law
because the community of states treats it and views it as a rule of law
○ elements:
". objective element (general practice)
◆ consists of a relatively uniform and constant State practice
◆ normally constituted by repetition of certain behavior on part of a
State for a certain length of time which manifests a certain
attitude, without ambiguity, regarding a particular matter
$. psychological element (opinion juris)
◆ consists of subjective conviction of a State that it is legally bound
to behave in a particular way in respect of a particular type of
situation
◆ States in their conduct amounting to general practice, must act
out of a sense of legal duty and not only by the motivation of
courtesy, convenience or tradition
◆ purpose is to distinguish between customary rule and mere usage
followed out of courtesy or habit
○ all States are bound by international customs including dissenting States
◆ exception: not bound if dissenting states had consistently objected to
it while the project was merely in the process of formation (Persistent
Objector rule); requisites:
 ". raise its objection at the formative stage of the rule in question
$. be consistent in maintaining its objection
%. inform other States of its objection
– general principles of law
○ principle which are inferred from municipal laws and those which have no
counterparts in international law law; and have no counterparts in
municipal law and are inferred from the nature of the international
community
○ gap-filler provisions, utilized by the ICJ in reference to rules typically
found in domestic courts and domestic legal systems in order to address
procedural and other issues
– decisions of international tribunals
○ decisions of the courts have no binding force, except for the parties and in
respect of the case concerned
○ clarify existing law on the topic and may, in some circumstances, create a
new principle in international law
○ evidence of State practice
– teachings of authoritative publicists
○ only constitutes evidence of customary law

Effect of United Nations Declarations, Security Council Resolutions

– UN General Assembly declarations
○ binding effect is limited, ratione materiae (subject matter jurisdiction), to
organizational matters, but may cover, ratione personae (jurisdiction over
person), the entire UN sphere
◆ admission of new Member States
◆ voting procedure
◆ apportionment of the budget
◆ certain powers of decision
○ recommendatory in character
○ no binding effect in the operational realm of international peace and
security
◆ budgetary powers in this area
◆ enforcement powers to suspend or expel UN Members
– Security Council resolutions
○ decisions have binding force
○ ratione materiae, operational matters and covers, ratione personae, all
Member States
◆ realm of international peace and security
◆ enforcement under Chapter VII of the UN Charter