Poltical Law Nachura
Poltical Law Nachura
B. Scope/Division 3. Classification
1. Constitutional Law – study of the maintenance a. Written – precepts are embodied in one
of the proper balance between authority as document/ set of documents
represented by the 3 inherent powers of the State Unwritten – rules which have not been
and liberty as guaranteed by the Bill of Rights integrated into a single, concrete form but are
scattered in various sources (statutes, judicial
2. Administrative Law – Fixes the organization of decisions, commentaries, customs and
the government; traditions, common law principles).
Determines the competence of the b. Enacted (Conventional) – formally struck off at
administrative authorities who execute the law; and a definite time and place following a conscious or
Indicates to the individuals remedies for the deliberate effort taken by a constituent body or
violation of his right. ruler.
Evolved (Cumulative) – result of political
3. Law on Municipal Corporations evolution, changing by accretion rather than
4. Law of Public Officers by any systematic method.
5. Election Law c. Rigid – amended only by formal and usually
difficult process
C. Basis of the Study Flexible – changed by ordinary legislation
1. 1935 and 1973 Constitution
2. 1986 Constitution 4. Qualities of a good written Constitution
3. Other organic laws made to apply in the a. Broad – comprehensive enough to provide for
Philippines every contingency
4. Statutes, EOs and decrees, judicial decisions b. Brief – confine to basic principles to be
5. US Constitution implemented
c. Definite – to prevent ambiguity
II. THE PHILIPPINE CONSTITUTION
5. Essential parts of a good written Constitution
A. Nature of the Constitution a. Constitution of Liberty – sets forth the civil and
1. Definition political rights of the citizens and imposing
a. The body of rules and maxims in accordance limitations on the powers of the government
with which the powers of sovereignty are habitually b. Constitution of Government – outlines the
exercised. organization of the government; enumerates its
b. That written instrument enacted by the direct powers; and lay down rules relative to its
action of the people, administration
by which the fundamental powers of the c. Constitution of Sovereignty – points out the
government are established, limited and defined; mode or procedure in accordance with formal
and by which those powers are distributed changes in the fundamental law may be brought
among several departments for their safe and about
useful exercise for the benefit of the body
politic. 6. Interpretation/Construction of the Constitution
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Nachura Notes – Constitutional Law
- The people have to be given a “proper frame of - A taxpayer, or group of taxpayers, is a proper
reference” in arriving at their decision. party to question the validity of a law appropriating
4. Judicial Review of Amendments – issue is public funds.
whether or not the constitutional provisions had - 2 Requisites for Taxpayer’s Suit:
been followed. (1) Public funds are disbursed by a political
subdivision or instrumentality
E. The Power of Judicial Review (2) A law is violated or irregularity is committed
1. Judicial Review – power of the courts to test the (3) Petitioner is directly affected by the ultra vires
validity of executive and legislative acts in light of act
their conformity with the Constitution. - The Government is a proper party to question
- Power is inherent in the Constitution. the validity of its own laws, because more than any
- Section 1, Article VII of the Constitution: one, it should be concerned with the
Judicial power includes the duty of the courts of constitutionality of its acts
justice to settle actual controversies involving rights The established rule is that a party can question
which are legally demandable and enforceable, and the validity of a statute only if, as applied to him, it
to determine whether or not there has been a grave is unconstitutional.
abuse of discretion amounting to lack or excess of Exception: Facial Challenge, when it operates in
jurisdiction on the part of any branch or the area of freedom of expression.
instrumentality of Government. Overbreadth Doctrine: permits a party to
2. Who may exercise challenge the validity of a statute even though, as
- Power of the SC to decide constitutional applied to him, it is not unconstitutional, but it
questions. might be if applied to other not before the Court
- Constitutional appellate jurisdiction of the SC whose activities are constitutionally protected.
and implicitly recognizes the authority of lower Invalidation of the statute “on its face”, rather
courts to decide questions involving the than “as applied” is permitted in the interest of
constitutionality of laws, treaties, agreements, etc. preventing a “chilling effect” on freedom of
- Notice to SolGen is mandatory to enable him to expression.
decide whether or not his intervention in the action Facial challenge is the most difficult challenge
is necessary. because the challenge must establish that no set of
3. Functions of Judicial Review circumstances exists under which the act would be
(1) Checking valid.
(2) Legitimizing - The constitutional question must be raised at the
(3) Symbolic earliest possible opportunity
4. Requisites - The decision on the constitutional question must
(1) Actual case or controversy be determinative of the case itself.
(2) Constitutional question must be raised by the - Bars judicial inquiry into a constitutional
proper party question unless the resolution is indispensable to the
determination of the case.
- A party’s standing in court is a procedural - Every law has in its favor the presumption of
technicality which may be set aside by the Court in constitutionality, and to justify its nullification,
view of the importance of the issues involved; there must be a clear and unequivocal breach of the
paramount public interest/transcendental Constitution.
importance
- “Present substantial interest” – such interest of a 5. Effects of Declaration of Unconstitutionality
party in the subject matter of the action as will - Orthodox View: unconstitutional act is not a
entitle him under substantive law, to recover of the law, it confers no rights and imposes no duties; it
evidence is sufficient, or that he has a legal title to affords no protection, creates no office; it is
defend and the defendant will be protected in inoperative as if it had not been passed at all.
payment to or recovery from him.
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Nachura Notes – Constitutional Law
- Modern View: certain legal effects of the statute (2) Ministrant – intended to promote the welfare,
prior to its declaration of unconstitutionality may be progress and prosperity of the people and which are
recognized. merely optional for Government to perform
6. Partial Unconstitutionality
- Legislature must be willing to retain the valid Doctrine of Parens Patriae: parents of the people;
portions separability clause the Government may act as guardian of the rights of
- Valid portion can stand independently as law the people who may be disadvantaged or suffering
from some disability or misfortune.
III. THE PHILIPPINES AS A STATE
State: a community of persons, more or less Classification
numerous, permanently occupying a definite portion (1) De jure
of territory, independent of external control and De facto – Kinds
possessing a government to which a great body of 1) Takes possession or control of, or usurps, by
inhabitants render habitual obedience. force or by the voice of the majority, the rightful
legal government and maintains itself against the
State is a legal or juristic concept; nation is an will of the latter;
ethnic or racial concept. 2) Established by the inhabitants of a territory who
Government is an instrumentality of the State rise in insurrection against the parent state; and
through which the will of the State is implemented 3) Established by invading forces of an enemy who
and realized. occupy a territory in the course of war (de facto
government of paramount force).
Elements: (2) Presidential – separation of executive and
(1) People legislative powers
(2) Territory Parliamentary – fusion of both executive and
Components: legislative in Parliament; actual exercise of
1) Terrestrial executive powers is vested in a Prime Minister who
2) Fluvial is chosen by, and accountable to the Parliament
3) Maritime (3) Unitary
4) Aerial Federal
(3) Government
(4) Sovereignty Sovereignty: supreme and uncontrollable power
inherent in a State by which that State is governed
Archipelago Doctrine: the waters around, between Kinds:
and connecting the islands of the archipelago, 1) Legal – power to issue final commands
regardless of their breadth and dimensions, form Political – sum total of all the influences which
part of the internal waters of the Philippines. lie behind the law
2) Internal – supreme power over everything
Straight Baseline Method: Imaginary straight lines within the territory
are drawn joining the outermost points of outermost External/Independence – freedom from external
islands of the archipelago, enclosing an area the control
ratio of which should not be more than 9:1;
provided that the drawing of the baselines shall not Characteristics:
depart, to any appreciable extent, from the general 1) Permanence
configuration of the archipelago. 2) Exclusiveness
3) Comprehensiveness
Functions of the Government: 4) Absoluteness
(1) Constituent – mandatory for the Government to 5) Indivisibility
perform because they constitute the very bonds of 6) Inalienability
society 7) Imprescriptibility
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Nachura Notes – Constitutional Law
provide that they can sue and be sued. (Section 22 against it. Such execution will require another
LGC) waiver.
2. Unincorporated – inquire into the principal
functions Suability is not equated with outright liability.
If governmental: no suit without consent Liability will have to be determined by the court on
If proprietary: suit will lie, because when the the basis of the evidence and the applicable law.
State engages in principally proprietary functions,
then it descends to the level of a private individual, IV. FUNDAMENTAL POWERS OF THE
and may therefore be vulnerable to suit. STATE
Inherent powers of the State
Suit Against Public Officers: The doctrine of state 1. Police Power
immunity also applies to complaints filed against 2. Eminent Domain
officials of the State for acts performed by them in 3. Power of Taxation
the discharge of their duties within the scope of
their authority. Similarities
Exceptions: (may be sued without prior consent 1. inherent in the state, without need of express
from State) constitutional grant
1. to compel him to do an act required by law; 2. necessary and indispensable
2. to restrain him from enforcing an act claimed to 3. methods by which the state interferes with
be unconstitutional; private property
3. to compel the payment of damages from an 4. presupposes equivalent compensation
already appropriated assurance fund or to refund tax 5. exercised primarily by legislature
over-payments from a fund already available for the
purpose; Distinctions
4. to secure a judgment that the officer impleaded 1. Police power regulates liberty and property
may satisfy by himself without the State having to Eminent domain and taxation affects only
do a positive act to assist him; property rights
5. where government itself has violated its own 2. Police power and taxation are exercised only by
laws, because the doctrine of state immunity government
“cannot be used to perpetrate an injustice” Eminent domain may be exercised by private
entities
Where a public officer has committed an ultra vires 3. Property taken in police power is usually
act, or there is a showing of bad faith, malice or noxious or intended for noxious purposes and may
gross negligence, then the officer can be held be destroyed
personally accountable. In eminent domain and taxation, the property is
wholesome and devoted to public use/purpose.
In order that suit may lie against the state, there 4. Compensation in police power is the intangible,
must be consent. Where no consent is shown, state altruistic feeling that the individual has contributed
immunity from suit may be invoked as a defense by to the public good;
the courts sua sponte at any stage of the In eminent domain, it is the full and fair
proceedings. equivalent of the property taken;
Express consent: general law or special law In taxation, it is the protection given and/or
Implied consent public improvements instituted by government
1. state commences a litigation for taxes paid.
2. state enters into a business contract
Limitations
Scope of consent: consent to be sued does not 1. Bill of Rights
include consent to the execution of judgment 2. Courts may annul improvident exercise of
police power
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Nachura Notes – Constitutional Law
Congress
Police Power By delegation, the President, administrative
Power of promoting public welfare by bodies, LGUs and even private enterprises
restraining and regulating the use of liberty and performing public services
property.
Most pervasive, least limitable and most Requisites
demanding of the three powers. (1) Necessity
Justification: salus populi est suprema lex and (2) Private Property, except money and choses in
sic utere tuo ut alienum non laedas action
(3) Taking in the constitutional sense
Who may exercise? (4) Public use
Inherently vested in Legislature (5) Just Compensation – full and fair equivalent of
Congress may validly delegate this power to the the property taken; fair market value of the property
President, administrative bodies and to lawmaking
bodies of LGUs. Judicial Prerogative
LGUs exercise this power under the general Ascertainment of what constitutes just
welfare clause compensation for property taken in eminent domain
cases is a judicial prerogative.
Limitations (test for valid exercise)
Lawful subject: interest of the public; activity or Form of Compensation
property sought to be regulated affects the general Paid in money and no other form.
welfare; if it does then the enjoyment of the rights In agrarian reform, payment is allowed to be
flowing therefrom may have to yield to the interest made partly in bonds because under the CARP, “we
of the greater number. do not deal with the traditional exercise of the
Lawful means: means employed are reasonably power of eminent domain; we deal with a
necessary for the accomplishment of the purpose revolutionary kind of expropriation.”
and not unduly oppressive on individuals.
Express grant by law Reckoning point of market value of the property
Within territorial limits (for LGUs except when Date of the taking or the filing of the complaint,
exercised to protect water supply) whichever comes first.
Must not be contrary to law
Principal criterion in determining just
For Municipal Ordinances to be Valid: compensation
(1) Must not contravene the Constitution or the Character of the land at the time of the taking
statute
(2) Must not be unfair or oppressive Entitlement of owner to interest
(3) Must not be partial or discriminatory When there is delay in the payment of just
(4) Must not prohibit but may regulate trade compensation, the owner is entitled to payment of
(5) Must not be unreasonable interest if claimed; otherwise, interest is deemed
(6) Must be general in application and consistent waived;
with public policy Interest is 6% per annum, prescribed in Article
2209 of the CC, NOT 12% per annum under Central
Power of Eminent Domain (Power of Bank Circular No. 416, latter applies to loans or
Expropriation) forbearances of money, goods or credits or
judgments involving such loans or forbearance of
Jurisdiction money, goods or credits. The kind of interest here is
RTC by way of damages.
In some expropriation cases, the court imposes
Who may exercise the power 12% damages for delay in payment which, in
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Nachura Notes – Constitutional Law
effect, makes the obligation on the part of (4) Lands within the declared Areas for Priority
government one of forbearance. Development, Zonal Improvement Program sites,
Slum Improvement and Resettlement sites which
Who else may be entitled to just compensation have not yet been acquired;
Owner (5) BLISS sites which have not yet been acquired;
Those who have lawful interest and
(6) Privately owned lands
Title to the property
Does not pass until after payment The mode of expropriation is subject to 2
conditions:
Right of landowner in case of non-payment of (1) Resorted to only when the other modes of
just compensation acquisition have been exhausted
Does not entitle to recover possession of the (2) Parcels owned by small property owners are
expropriated lots exempt from such acquisition
Only to demand payment of the FMV of the
property Small property owners:
(1) Owners of residential lots not more than 300 sq.
Due process of law m. in highly urbanized cities and not more than 800
Defendant must be given an opportunity to be sq. m. in other urban areas
heard (2) They do not own residential property other than
the same
Writ of Possession, ministerial upon:
(1) Filing of complaint for expropriation sufficient Power of Taxation
in form and substance
(2) Upon deposit by the government of the amount Who may exercise
equivalent to 15% of the FMV of the property per Legislature
current tax declaration Local legislative bodies
To a limited extent, the President, when granted
The plaintiff’s right to dismiss the complaint has delegated tariff powers
always been subject to Court approval and to
certain conditions, because the landowner may have Limitations on the exercise
already suffered damages at the start of the Due process of law, must not be confiscatory
taking. Equal protection clause, must be uniform and
equitable
Right to repurchase or re-acquire the property Public purpose
Property owner’s right to repurchase the
property depends upon the character of the title Double taxation
acquired by the expropriator: if land is expropriated Additional taxes are laid on the same subject by
for a particular purpose with the condition that the same taxing jurisdiction during the same taxing
when that purpose is ended or abandoned, the period and for the same purpose.
property shall revert to the former owner, the
former owner can re-acquire the property. Tax Exemptions
No law granting tax exemption shall be passed
Lands for socialized housing are to be acquired in without the concurrence of a majority of all the
the following order: Members of Congress.
(1) Government lands Charitable institutions, churches and parsonages
(2) Alienable lands of the public domain or convents appurtenant thereto, mosques, non-
(3) Unregistered, abandoned or idle lands; profit cemeteries, and all lands, buildings and
improvements actually, directly and exclusively
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Nachura Notes – Constitutional Law
instrumentality of his own judgment and not subject of statutory enactments, because these
through the intervening mind of another. generally accepted principles of international law
Permissible delegation are automatically part of our own laws.
(1) Tariff powers to the president
(2) Emergency powers to the president (in times of Civilian Supremacy
war or national emergency) Civilian authority is, at all times supreme over
(3) Delegation to the people – specific provisions the military. The AFP is the protector of the people
where the people have reserved to themselves the and the State. Its goal is to secure the sovereignty pf
function of legislation the State and integrity of the national territory.
Referendum: power of the electorate to approve
or reject legislation through an election called for Duty of Government; people to defend the State
the purpose; referendum on statutes and referendum The prime duty of the Government is to serve
on local law and protect the people.
Plebiscite: electoral process by which an The Government may call upon the people to
initiative on the Constitution is approved or rejected defend the State and, in the fulfillment thereof, all
by the people. citizens may be required, under conditions provided
(4) Delegation to LGUs by law, to render personal military or civil service.
(5) Delegation to Administrative Bodies – power of The maintenance of peace and order, the
subordinate legislation protection of life, liberty and property, and the
Tests for valid delegation promotion of the general welfare are essential for
(1) Completeness test: the law must be complete in the enjoyment by all the people of the blessings of
all its essential terms and conditions when it leaves democracy.
the legislature so that there will be nothing left for
the delegate to do when it reaches him except to Right to Bear Arms: statutory, not constitutional
enforce it. right.
(2) Sufficient standard test: intended to map out the
boundaries of the delegates’ authority by defining Separation of Church and State
the legislative policy and indicting the Freedom of religion clause
circumstances under which it is up be pursued and Religious sect cannot be registered as political
effected; the standards usually indicated in the law party
delegating legislative power. No sectoral representative from the religious
sector
The Incorporation Clause Prohibition against appropriation for sectarian
The Philippines renounces war as an instrument benefit
of national policy, adopts the generally accepted
principles of international law as part of the law of Exceptions
the land, and adheres to the police of peace, (1) Section 28(3), Article 6: Exemption from
equality, justice, freedom, cooperation and amity taxation
with all nations. (2) Section 29(2), Article 6: Prohibition against
Independent foreign policy and nuclear-free sectarian benefit, except when priest is assigned to
Philippines the armed forces or to any penal institution or
Expiration of Bases Agreement government orphanage or leprosarium
Renunciation of War (3) Section 3(3), Article 14: Optional religious
(1) Covenant of the League of Nations instruction for public elementary and high school
(2) Kellogg-Briad Pact of 1928 studies
(3) Charter of the United Nations (4) Section 4(2), Article 14: Filipino ownership
Doctrine of Incorporation – our courts have requirement to educational institutions, except those
applied the rules of international law in a number of established by groups and mission boards
cases even of such rules had not previously been
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Nachura Notes – Constitutional Law
Decentralization and does not make the local Who are protected
governments sovereign within the State or an Universal in application to all persons
imperium in imperio. Artificial persons are covered by the protection
Decentralization of administration: delegation of only insofar as their property is concerned
administrative powers to the LGU in order to Guarantee extends to aliens and includes the
broaden the base of governmental powers. means of livelihood
Decentralization of power: abdication by the
national government of governmental powers. Meaning of life, liberty and property
Life: right of an individual to his body in its
Equal access of opportunities for public service completeness, free from dismemberment and
State shall guarantee equal access of extends to the use of God-given faculties which
opportunities for public service and prohibit makes life enjoyable
political dynasties as may be defined by law. Liberty: the right to exist and the right to be free
from arbitrary personal restraint or servitude;
Honest public service and full public disclosure includes the right to be free to use his faculties in all
State shall maintain honesty and integrity in the lawful ways
public service and take positive and effective Property: anything that can come under the right
measures against graft and corruption. of ownership and can be subject of contract; the
State adopts and implements a policy of full right to secure, use and dispose them.
public disclosure of all its transactions involving
public interest. Aspects of due process
1. Substantive – restriction on government’s law-
VI. BILL OF RIGHTS and rule-making powers
Requisites:
Definition 1. interest of the public
Set of prescriptions setting forth the 2. means employed are reasonably necessary for
fundamental civil and political rights of the the accomplishment of the purpose and not unduly
individual, and imposing limitations on the powers oppressive on individuals
of government. 2. Procedural – restriction on actions of judicial
Generally, any government action in violation and quasi-judicial agencies of government
of the Bill of Rights is void. Requisites:
Generally self-executing. 1. impartial court or tribunal clothed with judicial
power to hear and determine the matter before it
Civil Rights 2. jurisdiction must be lawfully acquired over the
Right that belong to every citizen of the state or person of the defendant and over the property which
country and are not connected with the organization is the subject matter of the proceeding
or administration of government. 3. the defendant must be given an opportunity to
be heard
Political Rights 4. judgment must be rendered upon lawful hearing
Right to participate, directly or indirectly, in the
establishment or administration of government. Publication as part of due process
Publication is imperative to the validity of laws,
Due Process of Law: No person shall be deprived of PDs and Eos, administrative rules and regulation
life, liberty or property without due process of law and is an indispensable part of due process.
Definition
A law which hears before it condemns, which Appeal and due process
proceeds upon inquiry and renders judgment only Appeal is not a natural right nor is it part of due
after trial. process; it may be allowed or denied by legislature
in its discretion.
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Nachura Notes – Constitutional Law
Only a judge may issue a warrant (2) Be satisfied that there is probable cause; and
Exception: order of arrest may be issued by (3) That there is a need to place the respondent
administrative authorities but only for the purpose under immediate custody in order not to frustrate
of carrying out a final finding of a violation of law, the ends of justice
e.g. an order of deportation or an order of contempt
but not for the sole purpose of investigation or Particularity of Description:
prosecution. (1) Readily identify the properties to be seized and
thus prevent them from seizing the wrong items;
Requisites for a Valid Warrant and
(1) Probable cause (2) Leave peace officers with no discretion
(2) Determination of probable cause personally by regarding the articles to be seized and thus prevent
the judge unreasonable searches and seizures.
(3) After examination under oath or affirmation of
the complainant and the witnesses he may produce Warrant of Arrest particularly describe the
(4) Particularity of description person to be seized if it contains the name/s of the
person/s to be seized.
The judge shall John Doe warrant descriptio persona
(1) Personally evaluate the report and the
supporting documents submitted by the fiscal Search Warrant description is as specific as the
regarding the existence of probable cause and, on circumstances will ordinarily allow or when
the basis thereof, issue a warrant of arrest; or description expresses a conclusion of fact (not of
(2) If on the basis thereof, he finds no probable law) by which the warrant officer may be guided in
cause, he may disregard the prosecutor’s report making the search; or when the things described are
band require the submission of supporting affidavits limited to those which bear direct relation to the
of witnesses. offense for which the warrant is being issued.
- People vs. Salanguit: once the valid portion of (2) Public safety or order requires otherwise, as
the search warrant has been executed, the “plain may be provided by law.
view” doctrine can no longer provide any basis for - Includes tangible and intangible objects.
admitting the other items subsequently found… - RA 4200: illegal for any person not authorized
(marijuana was also wrapped in newspaper which by all the parties to any private communication, to
was not transparent….warrant for shabu and drug secretly record such communications by means of a
paraphernalia, found the shabu first) tape recorder. Telephone extension was not among
- Doctrine is not an exception to the warrant. It the devices covered by this law.
serves to supplement the prior justification. It is a
recognition that of the fact that when executing Freedom of Expression
police officers come across immediately - No law shall be passed abridging the freedom of
incriminating evidence not covered by the warrant, speech, of expression nor of the press, or the right
they should not be required to close their eyes to it, of the people peaceably to assemble and petition the
regardless of whether it is evidence of the crime government for redress of grievances.
they are investigating or evidence of some other - Scope: Any and all modes of expression.
crime. It would be needless to require the police to
obtain another warrant. Aspects:
(1) Freedom from censorship or prior restraint
Immediately apparent test - Need not be total suppression, even restriction
- Does not require an unduly high degree of of circulation constitutes censorship.
certainty. - Section 11 (b), RA 66461: legitimate exercise of
- Requires merely that the seizure be the police power of the State to regulate media or
presumptively reasonable assuming that there is communication and information for the purpose of
probable cause to associate the property with ensuring equal opportunity, time and space for
criminal activity. political campaigns. Unrelated to suppression of
- Nexus exists between the viewed object and the speech as it is only incidental and no more than is
criminal activity. necessary to achieve the purpose of achieving the
purpose of promoting equality.
Exclusionary Rule: Evidence obtained in violation - Movie censorship: movie, compared to other
of Section 2, Article 3 shall be inadmissible for any media of expression, have a greater capacity for evil
purpose in any proceeding because it is “the fruit of and must, therefore, be subjected to a greater degree
the poisoned tree.” of regulation.
- Property illegally seized may be used in - Power of MTRCB can be exercised only for
evidence in the case filed against the officer purposes of “classification” not censorship.
responsible for the illegal seizure. - Primacy of freedom of expression over Enrile’s
“right to privacy” because Enrile was a “public
Privacy of Communications and Correspondence figure” and a public figure’s right to privacy is
- The privacy of communication and narrower than that of an ordinary citizen. (Ayer
correspondence shall be inviolable EXCEPT upon Productions vs. Judge Capulong)
lawful order of the court OR when public safety or - Board of Review for Motion Pictures and
order requires otherwise as prescribed by law. Television (BRMPT) “X-rating” when the
- Any evidence obtained in violation of this or the program would create a clear and present danger of
preceding section shall be inadmissible for any an evil which the State has the right to prevent.
purpose in any proceeding. (Inglesi ni Cristo vs. CA)
Inviolability
- Exceptions:
1
(1) Lawful order of the court; Prohibited any person making use of the media to sell or to
give free of charge print space or air time for campaign or
other political purposes except to the COMELEC.
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Nachura Notes – Constitutional Law
- No law prohibiting the holding and reporting of - Public has the right to be informed on the
exit poll. (ABS-CBN Broadcasting Corporation vs. mental, moral and physical fitness of candidates for
COMELEC) public officer. The rule applies only to fair
- Test for the validity of government regulation, comments on matters of public interest, fair
valid if (O’Brien Test): comment being that which is true, or if false,
1. within the constitutional power of government; expresses the real opinion of the author based upon
2. furthers an important or substantial government reasonable degree of care and on reasonable
interest; grounds.
3. government interest is unrelated to the 2. Obscenity
suppression of free expression; and - Determination of what is obscene is a judicial
4. incidental restriction on the freedom is no function.
greater than is essential to the furtherance of that 3. Criticism of official conduct
interest. - US vs. Bustos: individual is given the widest
- Overbreadth Doctrine: prohibits government latitude in criticism of official conduct.
from achieving its purpose by “means that sweep - Publication that tends to impede, embarrass or
unnecessarily broadly, reaching constitutionally obstruct the court and constitutes a clear and present
protected as well as unprotected activity.” danger to the administration of justice is not
(2) Freedom from subsequent punishment protected by the guarantee of press freedom and
- Without this assurance, the individual would punishable by contempt. It is not necessary to show
hesitate to speak for fear that he might be held that the publication actually obstructs the
accountable for his speech, or that he might be administration of justice; it is enough that it tends to
provoking the vengeance of the officials he may do so.
have criticized. - Freedom of press is subordinate to the decision,
- Not absolute and may be properly regulated in authority, integrity and independence of the
the interest of the public. judiciary and the proper administration of justice.
- State may validly impose penal and/or 4. Right of students to free speech in school
administrative sanctions, such as: premises not absolute
1. Libel - Campus Journalism Act provides that a student
- Public and malicious imputation of a crime, or shall not be expelled or suspended solely on the
of a vice or defect, real or imaginary, or any act, basis of articles he or she has written, the same
omission, condition, status or circumstance tending should not infringe on the school’s right to
to cause the dishonor, discredit or contempt of a discipline its students.
natural or juridical person, or to blacken the - The school cannot suspend or expel a student
memory of one who is dead. solely on the basis of the articles he or she has
- Oral defamation is called slander. written, except when such article materially disrupts
- Every defamatory imputation is presumed to be class work or involves substantial disorder or
malicious. invasion of rights of others.
Exceptions:
1. a private communication made by any person to Test of valid government interference
another in the performance of any legal, moral or (1) Clear and Present Danger Rule
social duty; and - Whether the words are used in such
2. fair and true report, made in good faith, without circumstances and of such nature as to create a clear
any comments or remarks, of any judicial, and present danger that they will bring about the
legislative or other official proceedings which are substantive evils that the State has the right to
not of a confidential nature, or of any statement, prevent.
report or speech delivered in said proceedings, or of - The substantive evil must be extremely serious
any act performed by public officers in the exercise and the degree of imminence extremely high before
if their functions. utterances can be punished.
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Nachura Notes – Constitutional Law
- Rule: the danger created must not only be clear owned or –operated educational institution, or in a
and present but also traceable to the ideas freedom park.
expressed. Where permit is required, written application
- “clear”: seems to point to a causal connection shall be filed with the mayor’s office at least 5 days
with the danger of the substantive evil arising from before the scheduled meeting and shall be acted
the utterance questioned upon within 2 days. Otherwise, permit shall be
- “present” refers to the time element, identified deemed granted.
with imminent and immediate danger Denial shall be justified only upon clear and
- The danger must not only be probable, but very convincing evidence that the public assembly will
likely inevitable. create a cleat and present danger to public order,
(2) Dangerous Tendency Rule safety, convenience, morals and health.
- Words uttered create a dangerous tendency of Action shall be communicated within 24 hours
an evil which the State has the right to prevent, then to the applicant… may appeal to appropriate courts.
such words are punishable. Decision must be reached within 24 hours.
- Sufficient if the natural tendency and the The law permits law enforcement agencies to
probable effect of the utterance were to bring about detail a contingent under a responsible officer at
the substantive evil that the legislative body seeks to least 100 meters away from the assembly in case it
prevent. becomes necessary to maintain order.
(3) Balancing of Interests Test - Academic freedom of institutions of higher
- When particular conduct is regulated in the learning cannot be utilized to discriminate against
interest of public order, and the regulation results in those who exercise their constitutional rights.
an indirect, conditional or partial abridgment of - Right to free assembly and petition prevails over
speech, the duty of the courts is to determine which economic rights.
of the two conflicting interests demands the greater - Education of the youth occupies a preferred
protection under the particular circumstances position over the freedom of assembly and petition.
presented. - Tests priorly applied by the court:
- Requires a court to take conscious and detailed 1. purpose test
consideration of the interplay of interests observable 2. auspice test
in a given situation.
Freedom of Religion
Assembly and Petition - No law shall be made respecting an
- Right to assemble is not subject to prior establishment of religion or prohibiting the free
restraint. exercise thereof.
- It may not be conditioned upon prior issuance of - The free exercise and enjoyment of religious
a permit or authorization from government profession and worship, without discrimination or
authorities. preference, shall forever be allowed. No religious
- It must be exercised in such a way as will not test shall be required for the exercise of civil or
prejudice the public welfare. political rights.
- PUBLIC PLACE: permit for the use of such - 2 guarantees:
place, and not for the assembly itself, may be 1. non-establishment clause
validly required. The power of local officials is 2. freedom of religious profession and worship
merely one of regulation. - Non-establishment clause: separation of Church
- Permit to hold public assembly shall not be and State
necessary where the meeting is to be held in a 1. cannot be registered as a political party;
PRIVATE PLACE. 2. no sectoral representative from the religious
Public Assembly Act: a permit shall not be sector; and
necessary where the meeting is to be held in a 3. prohibition against the use of public money or
private place, in the campus of the government- property for the benefit of any religion, or of any
priest, minister or ecclesiastic.
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Nachura Notes – Constitutional Law
20
Nachura Notes – Constitutional Law
- The liberty of abode and of changing the same - The persons right to travel is subject to the usual
within the limits prescribed by law shall not be constraints imposed by the very necessity of
impaired except upon lawful order of the court. safeguarding the system of justice. Whether the
- Neither shall the right to travel be impaired accused should be permitted to leave the country for
except in the interest of national security, public humanitarian reasons is a matter addressed to the
safety or public health, as may be provided by law. court’s discretion.
- Limitations:
1) On liberty of abode: lawful order of the court Right to Information
Caunca vs. Salazar: maid has the right to - Right of the people to information on matters of
transfer to another residence even if she had not yet public concern shall be recognized.
paid the amount advanced for her transportation - Access to official records and to documents and
from the province by an employment agency; papers pertaining to official acts, transactions pr
Rubi vs. Provincial Board of Mindoro: requiring decisions as well as to government research data
some members of the non-Christian tribes to reside used as basis for policy development shall be
only within a reservation, valid… to promote their afforded the citizen, subject to such limitations as
better education, advancement and protection. may be provided by law.
Universal Declaration of Human Rights: - Scope of the Right: right to information
everyone has the right to leave any country, contemplates inclusion of negotiations leading to
including his own and to return to his country. consummation of the transactions.
Covenant on Civil and Political Rights: no one The right only affords access, which means the
shall be arbitrarily deprived of the right to enter his opportunity to inspect and copy them at his
own country. expense.
2) On right to travel: national security, public Subject to regulations: to protect integrity of
safety or public health, as may be provided by law public records and to minimize disruption of
- Lawful order of the court is a valid restriction. government operations.
- Court may validly refuse to grant the accused - Exceptions:
permission to travel abroad, even if the accused in 1) Privileged communications rooted in separation
out on bail. (Manotoc vs. CA) of powers
- Liberty of travel may be impaired even without 2) Information on military and diplomatic secrets
court order, the appropriate executive officers or 3) Information affecting national security
administrative authorities are not armed with 4) Information on investigations of crimes by law
arbitrary discretion to impose limitations. enforcement agencies before the prosecution of the
- Principles: accused.
1) The Hold-departure Order is but an exercise of - Need for publication of law reinforces this right.
the court’s inherent power to preserve and maintain - The manner of examining public records may be
the effectiveness of its jurisdiction over the case and subject to reasonable regulation by the government
over the person of the accused; agency in custody.
2) By posting bail, the accused holds himself - The duty to disclose the information of public
amenable at all times to the orders and processes of concern, and to afford access to public records
the court, thus, she may be legally prohibited from cannot be discretionary on the part of said agencies.
leaving the country during the pendency of the case; Its performance may be compelled by mandamus.
and - In Re: Request for Live Radio-TV Coverage of
3) Parties with pending cases should apply for the Trial in the SB of the Plunder Case against
permission to leave the country from the very same Former Pres. Joseph Ejercito Estrada, Secretary of
courts which, in the first instance, are in the best Justice Hernando Perez vs. Joseph Ejercito Estrada:
position to pass upon such applications and to when the constitutional guarantees of freedom of
impose appropriate conditions therefore, since they the press and the right to public information, on
are conversant with the facts of the cases and the the one hand, and the fundamental rights of the
ramifications or implications thereof. accused, on the other hand, along with the
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Nachura Notes – Constitutional Law
constitutional power of a court to control its 1) Police power – public welfare is superior to
proceedings in ensuring a fair and impartial trial private rights
race against another, jurisprudence tells us that the 2) Eminent domain
right of the accused must be preferred (losing not 3) Taxation
only his liberty but also the very life of an accused). - Franchises, privileges, licenses, etc do not come
within the context of the provision
Right to Form Associations Subject to amendment alteration, or repeal by
- The right of the people, including those the Congress when common good so requires.
employed in the public and private sectors, to form
unions, associations or societies for purposes not Free Access to Courts
contrary to law shall not be abridged. - Free access to the courts and quasi-judicial
- Scope: includes the right not to join or to bodies and adequate legal assistance shall not be
disaffiliate from one. denied to any person by reason of poverty.
- Right to Strike: members of the civil service - Social justice provision providing for pauper
may not declare a strike to enforce economic suits.
demands.
- The ability to strike is not essential to the right Miranda Doctrine
of association. - Any person under investigation for the
- The right of the sovereign to prohibit strikes or commission of an offense shall have
work stoppages by public employees is clearly The right to be informed of his right to remain
recognized at common law. Modern rule merely silent and
incorporate or reasserts said common law. To have competent and independent counsel
- Right is not absolute. preferably of his own choice.
Anti-Subversion Act - If the person cannot afford the services of
Managerial employees: receive information that counsel, he must be provided with one.
is not only confidential but also generally not - These rights cannot be waived, except
available to the public. In writing and
In the presence of the counsel.
Non-impairment Clause - No torture, force, violence, threat, intimidation
- No law impairing the obligation of contracts or any other means which vitiate the free will shall
shall be passed. be used against him.
- To fall within the prohibition, the change must - Secret detention places, solitary,
not only impair the obligation of the existing incommunicado, or other similar forms of detention
contract, but the impairment must be substantial. are prohibited.
- Change in the rights of the parties with - Any confession or admission obtained in
reference to each other and not with respect to non- violation of this or Section 17 shall be inadmissible
parties. in evidence against him.
- Impairment: anything that diminishes the - The law shall provide for penal and civil
efficacy of the contract sanctions for violations of this section, as well as
- Substantial impairment when the law changes compensation to and rehabilitation of victims of
either torture or similar practices, and their families.
1) Time of performance - Rights are available only during custodial
2) Mode of performance investigation.
3) Imposes new conditions Custodial investigation or in-custody
4) Dispenses with those expressed interrogation of accused person: any questioning
5) Authorizes for its satisfaction something initiated by law enforcement officers after a person
different from that provided in its terms has been taken into custody or otherwise deprived
- Limitations: of his freedom of action in any significant way.
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Nachura Notes – Constitutional Law
23
Nachura Notes – Constitutional Law
(6) The person arrested must be informed that, at confession must be proved y clear, convincing and
any time, he has the right to communicate or confer competent evidence by the defense. Otherwise, the
by the most expedient means with his lawyer, any confession’s full probative value may be used to
member of his immediate family, or any medical demonstrate the guilt of the accused.
doctor, priest or minister chose by him or anyone of - Fruit of the Poisonous Tree: (Justice Frankfurter
his immediate family or by his counsel, or be visited Nardone vs. US)
by/confer with duly accredited national or Once the primary source is shown to have been
international non-governmental organization. It unlawfully obtained, any secondary or derivative
shall be the responsibility of the officer to ensure evidence derived from it is also inadmissible.
that this is accomplished. Basis: evidence illegally obtained by the State
(7) He must be informed that he has the right to should not be used to gain other evidence.
waive any said rights provided it is made - Receipt of Seized Property if signed by the
voluntarily, knowingly and intelligently, and ensure accused without assistance of counsel and not
that he understood the same. having been informed of his constitutional rights is
(8) If the person arrested waives his right to a inadmissible.
lawyer, he must be informed that this must be done People vs. Linsangan: initialed the P10 bill that
in writing and in the presence of the counsel, the police found tucked in his waist. Valid. Because
otherwise he must be warned that the waiver is void possession of marked bills did not constitute a
even if he insists in his waiver and chooses to crime, the subject if the prosecution being his act of
speak. selling marijuana cigs.
(9) The person arrested must be informed that he - Re-enactment of the Crime – before, must be
may indicate in any manner at any time or stage of appraised of his constitutional rights.
the process that he does not wish to be questioned - Res Gestae – admissible.
with a warning that once he makes such indication - Waiver of Exclusionary Rule: failure to object
the police may not interrogate him if the same had to offer in evidence.
not yet commenced or the interrogation must cease
if it had already begun. Right to Bail
(10) The person arrested must be informed - All persons except those charged with an
that the initial waiver of his right to remain silent, offense punishable by RP, when evidence of guilt is
the right to counsel or to any other rights does not strong, shall before conviction be bailable by
bar him from invoking it at any time during the sufficient sureties or be released on recognizance as
process, regardless of whether he may have may be provided by law.
answered some questions or volunteered some - The right to bail shall not be impaired even
statements. when the privilege of the writ of habeas corpus is
(11) He must be informed that any statement suspended.
or evidence, as the case may be, obtained in - Excessive bail shall not be required.
violation of any of the foregoing, inculpatory or - Bail: is the security given for the release of a
exculpatory, in whole or in part, shall be person in custody of the law, furnished by him or a
inadmissible. bondsman, conditioned upon his appearance before
- Exclusionary Rule: Confession/Admission any court as may be required.
obtained in violation of Section 12 and 17, Article - Any person under detention, even if no formal
III of the Constitution shall be inadmissible in charge have yet been field, can invoke the right to
evidence. bail.
- Confession: declaration made voluntarily and - When bail is authorized, it should be granted
without compulsion or inducement by a person before arraignment, otherwise, the accused may be
acknowledging that he has committed or precluded from filing a motion to quash.
participated in the commission of a crime. - Exceptions:
- Any allegation of force, duress, undue influence 1. when charged with an offense punishable by RP
or other forms of involuntariness in exacting such (or higher) and evidence of guilt is strong
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Nachura Notes – Constitutional Law
Extradition proceedings are separate and distinct - Unreasonable delay in resolving complaint is
from the trial of the offenses for which he is violation of the right to due process and to speedy
charged. trial dismissal of complaint.
He should apply for bail before the courts trying Exception: petitioner’s own acts or complexity
the criminal cases against him, not before the of the issues involved.
extradition court. - Hearing before an impartial and disinterested
After a potential extradite has been arrested and tribunal. Bias must be shown by clear and
placed under custody of the law, bail may be convincing evidence.
applied for and granted as an exception, only after - Right to a hearing
clear and convincing showing that - Plea of guilt to a capital offense. Mandatory
a. Once granted bail, the applicant will not be a that:
flight risk or a danger to the community, and 1) TC must conduct a searching inquiry into the
b. There exists special, humanitarian and voluntariness of the plea and the full comprehension
compelling circumstances. of the consequences;
- Waiver of the Right to Bail – personal to the 2) Prosecution should present evidence to prove
accused. the guilt of the accused and the precise degree of his
- The right to bail is not impaired by the culpability; and
suspension if the privilege of the writ of habeas 3) Accused must be asked if he desires to present
corpus. evidence in his behalf and should be allowed to do
so if he desires.
Constitutional Rights of the Accused - The State and the offended party are entitled to
- No person shall be held to answer for a criminal due process
offense without due process of law. - Presumption of Innocence: every circumstance
- In all criminal prosecutions, favoring the innocence of the accused must be taken
the accused shall be presumed innocent until the into account.
contrary is proved, Will NOT apply if there is some logical
and shall enjoy the right to be heard by himself connection between the fact proved and the ultimate
and counsel, fact presumed, and the inference of one fact from
to be informed of the nature and cause of proof of another shall not be so unreasonable as to
accusation against him, be purely arbitrarily mandate.
to have a speedy, impartial and public trial, Can be invoked only by an individual accused
to meet the witnesses face to face, and of a criminal offense.
to have compulsory process to secure the Corporate entity has no personality to invoke
attendance of the witnesses and the production of the same.
evidence in his behalf. - Presumption that official duty was regularly
- After arraignment, trial may proceed performed cannot, by itself, prevail over the
notwithstanding the absence of the accused, constitutional presumption of innocence.
provided that he has been duly notified and the Exception: when it is not the sole basis for
failure to appear is unjustifiable. conviction.
- Criminal due process: - Constitutional presumption may be overcome
1) accused has been heard in a court of competent by contrary presumptions based on experience of
jurisdiction human conduct. (e.g. unexplained wealth)
2) accused is proceeded against under the orderly - Circumstantial evidence in order to warrant
processes of law conviction:
3) accused has been given notice and the 1) More than one circumstance
opportunity to be heard 2) Facts from which the inference are derived are
4) judgment rendered was within the authority of a proven
constitutional law
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Nachura Notes – Constitutional Law
3) Combination of all the circumstances is such as - Right to be informed of the nature and cause of
to produce a conviction beyond reasonable doubt. accusation against him.
- Equipose Rule: applicable only when the Reasons:
evidence adduced by the parties are evenly 1. furnish the accused with such a description of
balanced, in which case the constitutional the charge against him as will enable him to prepare
presumption of innocence should tilt the scales in for his defense;
favor of the accused. 2. avail himself of his conviction or acquittal for
- Right to be heard by himself and counsel: protection against a further prosecution for the same
efficient and truly decisive legal assistance. cause; and
Proceeds from fundamental principle of due 3. to inform the Court of the facts alleged, so that
process. it may decide whether they are sufficient in law to
Right to counsel during the trial is not subject to support a conviction.
waiver because even the most intelligent or - When a judge is informed or discovers that an
educated man may have no skill in the science of accused is apparently in a condition of insanity or
law, particularly in the rules of procedure, and imbecility, it is within his discretion to investigate
without counsel. He may be convicted not because the matter.
he is guilty but because he does not know how to - Requisites: The information must state:
establish his innocence. 1. name of the accused
Failure of the record to disclose affirmatively 2. designation of the offense given by statute
that the TC advised the accused of his right to 3. statement of acts or omissions so complained of
counsel is not sufficient ground to reverse as constituting the offense
conviction. The TC must be presumed to have 4. name of the offended party
complied with the procedure prescribed by law for 5. approximate time and date of the commission of
the hearing and trial of the cases, and such the offense
presumption can be overcome only by an 6. place where the offense has been committed
affirmative showing to the contrary. 7. facts and circumstances that have a bearing on
- Right to counsel is not indispensable to due the culpability and liability of the accused
process of law. - Every element of the offense must be alleged in
Exceptions: cannot be waived during trial. the complaint or information, because the accused is
But this is not absolute. Option cannot be used presumed to have no independent knowledge of the
to sanction reprehensible dilatory tactics, to trifle facts that constitute the offense charged.
with ROC, or prejudice the equally important rights - Not necessary to state the precise time when the
of the State and the offended party to speedy and offense was committed except when time is a
adequate justice. material ingredient of the offense.
- “Preference in the choice of counsel” pertains - Description not the designation of the offense
more aptly and specifically to a person under controls.
custodial investigation rather than one who is - Accused can be convicted only of the crime
accused in a criminal prosecution. Such preferential alleged or necessarily included in the allegations in
discretion cannot partake of discretion so absolute the information.
and arbitrary as would make the choice of counsel - While a TC can hold a joint trial of 2 or more
refer exclusively to the prediction of the accused. criminal case and can render a consolidated
- General Rule: a client is bound by the mistakes decision, it cannot convict the accused of the
of his lawyer complex crime constitutive of the various crimes of
Exceptions: when the negligence or the 2 informations.
incompetence of counsel is deemed gross as to have - Void for Vagueness Rule: the law is deemed
prejudiced the constitutional right of the accused to void where the statute itself is couched in such
be heard. indefinite language that it is not possible for men of
ordinary intelligence to determine what acts or
omissions are punishable.
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Nachura Notes – Constitutional Law
- The right to be informed of the nature and cause “cold neutrality of an impartial judge” – for the
of the accusation against may not be waived but the benefit of the litigants and is also designed to
defense may waive the right to enter a plea and let preserve the integrity of the judiciary and to gain
the court enter a plea of not guilty. and maintain the people’s faith in the institution s
- Indictment must fully state the elements of the they have erected when they adopted the
specific offenses alleged to have been committed. Constitution.
An accused cannot be convicted of an offense, even Pervasive publicity is not per se prejudicial to
if duly proven, unless it is alleged or necessarily the right of the accused to a fair trial.
included in the complaint or information. Trial judges must be accorded a reasonable
Different matter if the accused themselves leeway in asking questions as may be essential to
refused to be informed of the nature and cause of elicit relevant facts and to bring out the truth. This
the accusation against them. is not only a right but also duty of the judge.
- Accused may be convicted of as many offenses Public Trial
charged in the information and proved during the Intended to prevent abuses that may be
trial, where he fails to object to such duplicitous committed against accused.
information during the arraignment. Not absolute.
- Information which lacks certain material Not synonymous to publicized trial.
allegations may sustain a conviction if the accused Means that the court doors must be open to
fails to object to its sufficiency during trial and those who wish to come, sit in the available seats,
deficiency is cured by competent evidence conduct themselves with decorum and observe trial
presented therein. processes.
- Right to Speedy, Impartial and Public Trial - Right to Meet the Witnesses Face to Face –
Speedy Trial right to cross-examine the complainant and the
Free from vexatious, capricious and oppressive witnesses.
delays. Testimony of the witness who has not submitted
Accused entitled to dismissal, equivalent to himself to cross-examination is not admissible in
acquittal, if trial is unreasonably delayed. evidence being hearsay.
Relative – subject to reasonable delays and This right can be waived.
postponements arising from illness, medical - Right to Compulsory Process to secure the
attention, body operations, etc. attendance of witnesses and the production of
Aggrieved party also has the same rights as the evidence.
accused. Subpoeana – process directed to a person
Separate trial is in consonant with the right of requiring him to attend and to testify at the hearing
the accused to a speedy trial. or trial of an action or at any investigation
RA 8493 (Speedy Trial Act): conducted under the laws of the Philippines or for
o Arraignment of the accused – w/in 30 days from the taking of his deposition.
the filing of the information or from the date the 2 kinds:
accused has appeared before the justice, judge or 1. subpoena ad testificandum: compel a person to
court in which the charge is pending, whichever testify
date last occurs. 2. subpoena duces tecum: compel the production
o If plea of not guilty – has 15 days to prepare for of books, records, things or documents
trial. o test of relevancy: books, documents or other
o Trial shall commence w/in 30 days from things requested must appear prima facie relevant to
arraignment as fixed by the court. the issue subject of the controversy
o No case shall the entire trial period exceed 180 o test of definiteness: such books must be
days from the first day of trial, except as otherwise reasonably described by the parties to be readily
authorized by the Chief Justice of the SC. identified
Impartial Trial - Requisites:
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Nachura Notes – Constitutional Law
- Congress, voting jointly by a majority vote of at - Right extends to all citizens, including those in
least a majority of all its members in regular or the military, and covers the period before, during
special session may revoke such proclamation or and after trial.
suspension, such revocation shall not be set aside by - Right can be waived failure to seasonably
the President. assert this right.
- Upon initiative of the President, the Congress
may, in the same manner, extend such proclamation Self-incrimination
or suspension for a period to be determined by - No person shall be compelled to be a witness
Congress, if the invasion or rebellion shall persists against himself.
and public safety requires it. - Right is available not only in criminal
- SC may review, in appropriate proceeding filed prosecutions but also in all other government
by any citizen, the sufficiency of the factual basis proceedings, including civil actions and
for the proclamation of martial law and the administrative or legislative investigations.
suspension of the privilege of the HC or the - It may be claimed not only by the accused but
extension thereof. also by any witness to whom a question calling for
- SC must promulgate its decision w/in 30 days an incriminating answer is addressed.
from filing. - General Rule: it may be invoked only when and
- The suspension of the privilege of the writ shall as the question calling for an incriminating answer
apply only to persons charged for rebellion or is asked. This applies only to ordinary witness.
offenses inherent in or directly connected with In criminal prosecution accused may not be
invasion. compelled to take the witness stand.
- During the suspension of the privilege of the Similarly applicable to a respondent in an
writ, any person thus arrested or detained shall be administrative proceeding.
judicially charged within 3 days, otherwise he shall - Scope: not against all compulsion, but
be released. testimonial compulsion only. (not the inclusion of
his body in evidence when it may be material)
- Suspension of the privilege does not suspend the Prohibition extends to the compulsion for the
right to bail. production of documents, papers and chattels that
may be used as evidence against the witness, except
Speedy Disposition of Cases where the State has a right to inspect the same such
- All persons shall have the right to a speedy as the books of accounts of corporations, under the
disposition of cases before all judicial, quasi- police or taxing power or where a government
judicial or administrative bodies. official is required to produce official
- Not limited to the accused in a criminal documents/public records which are in their
proceedings, but extends to all cases, including civil possession.
and administrative cases and in all proceedings Also protects the accused against any attempt to
including judicial and quasi-judicial hearings. compel him to furnish a specimen of his
- Like right to speedy trial, this right is violated handwriting in connection with a prosecution for
only when the proceedings are attended by falsification.
vexatious, capricious and oppressive delays or when - Immunity:
unjustified postponements of the trial are asked for 1) Transactional Immunity: witness immune from
and secured, or when without cause or justifiable any criminal prosecution for an offense to which his
motive a long period of time is allowed to elapse compelled testimony relates.
without the party having his case tried. 2) Use and Fruit Immunity: prohibits the use of the
- Unlike right to speedy trial, this right is witness’ compelled testimony and its fruits in any
available not only during trial but also when the manner in connection with the criminal prosecution
case has already been submitted for decision. of the witness.
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Nachura Notes – Constitutional Law
- Those granted this privilege paid a high price – Automatic review in death penalty cases shall
the surrender of their right to remain silent. Should proceed even in the absence of the accused,
be given a liberal interpretation. considering that nothing less than life is at stake and
- Waiver: either directly or by failure to invoke it, any court decision must be error-free as possible.
provided that the waiver is certain and unequivocal
and intelligently made. Non-imprisonment for Debt
- No person shall be imprisoned for debt or non-
Non-detention by Reason of Political Beliefs or payment of a poll tax.
Aspirations - While the debtor cannot be imprisoned for
- No person shall be detained solely by reason of failure to pay his debt, he can be validly punished in
his political beliefs or aspirations. a criminal action if he contracted his debt through
fraud, as his responsibility arises not from the
Involuntary Servitude contract of loan, but from the commission of the
- No involuntary servitude in any form exist crime.
except as a punishment for a crime whereof the
party shall have been duly convicted. Double Jeopardy
- Exceptions: - No person shall be twice put in jeopardy of
1) Punishment for a crime whereof one has been punishment for the same offense.
duly convicted; - If an act is punished by law and an ordinance,
2) Patria potestas conviction or acquittal under either shall constitute
3) Posse comitatus a bar to another prosecution for the same act.
4) Return to work order in industries affected by - Requisites:
public interest 1. valid complaint or information
5) Service in defense of the state does not attach in preliminary investigation.
6) Naval (merchant marine) enlistment 2. filed before a competent court
mistake has been made in charging the proper
Prohibited Punishment offense, the first charge shall be dismissed to pave
- Excessive fines shall not be imposed. the way for the filing of the proper offense. The
- Nor cruel, degrading or inhuman punishment dismissal of the first case will not give rise to
inflicted. double jeopardy inasmuch as the court does not
- Neither shall death penalty be imposed, unless have jurisdiction over the case,
for compelling reasons involving heinous crimes, 3. to which defendant had pleaded
the Congress hereafter provides for it. no arraignment = no double jeopardy
- Any death penalty already imposed shall be grant of motion to quash, filed before the
reduced to RP. accused makes his plea, can be appealed by the
- The employment of physical, psychological or prosecution because the accused has not yet been
degrading punishment against any prisoner or placed in jeopardy.
detainee, or the use of substandard or inadequate 4. defendant was previously acquitted or
penal facilities under subhuman conditions shall be convicted, or the case dismissed or otherwise
dealt with by law. terminated without his express consent
- Mere severity does not constitute cruel or promulgation of only one part of the decision is
unusual punishment. not a bar to the promulgation of the other part, the
- The penalty must be flagrantly and plainly imposition of the criminal accountability and does
oppressive, wholly disproportionate to the nature of not constitute a violation of the proscription against
the offense as to shock the moral sense of the double jeopardy.
community. - Dismissal of action
- Death penalty is not a cruel or unusual 1. permanent dismissal
punishment. It is an exercise of the State’s power to 1) termination of the case on the merits resulting in
secure society against the threatened and actual evil. either conviction or acquittal
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Nachura Notes – Constitutional Law
c. Law that changes the punishment, and inflicts any act to acquire or perfect their Philippine
a greater punishment than the law annexed to the citizenship.
crime when committed; - Marriage by Filipino to an alien – citizens of the
d. Law that alters legal rules of evidence and Philippines who marry aliens shall retain their
receives less or different testimony than the law citizenship, unless by their act or omission they are
required at the time of the commission of the deemed, under the law, to have renounced it.
offense, in order to convict the offender; - Dual allegiance of citizens is inimical to the
e. Law which, assuming to regulate civil rights and national interest and shall be dealt with by law.
remedies only, in effect imposes a penalty or the - Dual citizenship as a disqualification under the
deprivation of a right for something which when LGC must refer to dual allegiance.
done was lawful; - For candidates with dual citizenship, it is
f. Law which deprives a person accused of a crime sufficient that they elect Philippine citizenship upon
of some lawful protection to which they have been the filing of their certificate of candidacy to
entitled terminate their status as persons with dual
Characteristics citizenship.
a. Retroactive Filing of certificate of candidacy is sufficient to
b. Works to the prejudice of the accused renounce foreign citizenship.
c. Refers to criminal matters - Attack on one’s citizenship may be made only
- Bill of attainder through a direct and not collateral attack.
Definition: legislative act that inflicts - Doctrine of res judicata does not ordinarily
punishment without trial. apply to questions of citizenship.
Substitutes legislative fiat for a judicial Exception:
determination of guilt. 1) Person’s citizenship is resolved by a court or an
It is only when the statute applies either to administrative body as a material issue in the
named individuals or to easily ascertainable controversy, after full-blown hearing
members of a group in such a way as to inflict 2) Active participation of the SolGen or his
punishment on them without judicial trial that it representative
becomes a bill of attainder. 3) Finding of citizenship is affirmed by the SC
Anti-Subversion Act is not a bill of attainder. - Citizens of the Philippines
simply declares that the Communist Party is an 1) Citizens of the Philippines at the time of the
organized conspiracy to overthrow the Government adoption of the 1987 Constitution
and for definitional purposes only. 2) Whose fathers or mothers are citizens of the
Philippines
VII. CITIZENSHIP 3) Born before January 17, 1973, of Filipino
- Definition: membership in a political mothers, who elect Philippines citizenship upon
community which is personal and more or less reaching the age of majority
permanent in character. Election stated in a statement to be signed and
- Nationality is membership in any class or form sworn to by the party concerned before any official
of political community. It does not necessarily authorized to administer oath.
include the right/privilege of exercising civil or Filed with the nearest Civil Registry
political rights. Accompanied with the Oath of Allegiance to the
- Modes of acquiring: Constitution and the Government
1) Marriage Within 3 years from reaching the age of
2) Birth majority except when there is justifiable reason for
- Jus soli delay.
- Jus sanguinis Doctrine of Implied Election – exercise of right
3) Naturalization of suffrage and participation in the election
- Natural-born citizens – citizens of the exercises
Philippines from birth without having to perform
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Nachura Notes – Constitutional Law
Right is available to the child as long as the 4) Own real estate in the Philippines not less than
mother was a Filipino citizen at the time of the P5,000, have some lucrative trade, profession or
marriage to the alien, even if by reason of such lawful occupation
marriage, she lost her Philippine citizenship and 5) Speak and write English/Spanish/any principal
even if the mother was not a citizen at time of birth. Philippine languages
Right to elect Philippine citizenship is an 6) Enrolled his minor children of school age to
inchoate right public/private schools recognized by the
During his minority, child is an alien. Government, where Philippine history, government
Apply only to legitimate children. and civic are taught
If the child is illegitimate, he follows the status - Disqualifications:
and citizenship of his known parent, the mother. 1) Opposed to organized government or affiliated
4) Naturalization with any association of groups/persons who uphold
and teach doctrines opposing all organized
- Modes of Naturalization governments
2) Defending or teaching the propriety of violence,
Direct
personal assault, assassination for the success or
1) Judicial or administrative proceedings
predominance of ideals
2) Special act of legislature
3) Polygamists or believers
3) Collective change of nationality, resulting from
4) Convicted of a crime involving moral turpitude
cession or subjugation
5) Suffering from mental alienation or incurable
4) Adoption of orphan minors as nationals of the
contagious disease
State where they were born
6) Who, during the period of their residence, have
Derivative not mingled socially with Filipinos or who have not
1) Alien woman upon marriage to a national evinced a sincere desire to learn and embrace the
2) Minor children of naturalized person customs, traditions and ideals of the Filipinos
3) Wife of naturalized husband 7) Citizens and subjects of nations with whom the
- Doctrine of Indelible Allegiance: individual Philippines is at war, during the period of such war
may be compelled to retain his original nationality 8) Citizens and subjects of foreign country whose
even if he has already renounced or forfeited it law does not grant Filipinos the right to become
under the laws of the second State whose nationality naturalized citizens
he has acquired. - Procedure
- Qualifications: 1) File declaration of intention with SolGen – one
1) Not less than 21 at the date of the hearing; year prior to the filing of the petition
2) Resided in the Philippines for a continuous
Exception:
period of 10 years
1) Born in the Philippines and received primary
Reduced to 5 years IF and secondary education in public or private
1) Born in the Philippines schools recognized by the Government and not
2) Honorably held office in Government limited to particular race
3) Introduced a useful invention or established a 2) Resided in the Philippines for 30 years or more
new industry before the petition and enrolled his children to
4) Engaged as a teacher in the Philippines, public elementary and high schools recognized by the
or private school (except those established for the Government and not limited to particular race
exclusive instruction of persons of a particular 3) Widow and minor children if an alien who has
nationality) or in any branches of education or declared his intention to become a citizen of the
industry for a period of not less than 2 years Philippines and dies before he is actually
3) Good moral character; believes in the naturalized.
underlying principles of the Constitution; conducted 2) File petition + affidavit of 2 credible persons,
himself in a proper and irreproachable manner citizens of the Philippines who personally know the
during his residency petitioner, as character witness
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Nachura Notes – Constitutional Law
5) Resident thereof for not less than 1 year Coalition: aggrupation of duly registered
immediately preceding the day of the election national, regional, sectoral parties or organization
Principles for political and/or election purposes.
1) Minor follows domicile of parents - Registration/Manifestation to Participate in the
2) Domicile of origin is lost only when there is Party-List System
a. actual removal or change of domicile 90 days prior to election, petition verified by its
b. bona fide intention of abandoning the former President or Secretary
residence and establishing a new one If already registered, file instead a manifestation
c. acts which corresponds with the purpose of its desire to participate in the party-list system
3) Wife does not automatically gain husband’s - Refusal and/or Cancellation of Registration
domicile (motu proprio or upon verified complaint filed by
THEORY OF LEGAL IMPOSIBILITY J. any interested party; after due notice and hearing)
Francisco (Aquino v. Comelec) 1) Religious sect/denomination
Immigration to the US by virtue of a “green 2) Advocate violence to attain goal
card” constitutes abandonment of domicile in the 3) Foreign party/organization
Philippines. (Caasi vs. COMELEC) 4) Receives support from foreign party/org
Term: 3 years, commencing at noon on the 30th 5) Declares untruthful statement in its petition
day of June next following their election, 6) Violates or fails to comply with election laws,
Limitation: shall not serve for more than 3 rules and regulations
consecutive terms. 7) Failed to participate in the last 2 preceding
- Party-List System: mechanism for proportional elections or fails to obtain at least 2% of the votes
representation cast under the party-list system in the 2 preceding
Party: political party, sectoral party or coalition elections for the constituency in which it has
of parties registered
Political Party: organized group of citizens 8) Ceased to exist for at least 1 year
advocating an ideology or platform, principles and - Nomination of a party-list representative: each
policies for the general conduct of government and registered party, organization or coalition must
which, as the most immediate means of securing submit a list of names to the COMELEC not later
their adoption, regularly nominates and supports than 45 days before the election.
certain of its leaders and members as candoidates Not less than 5
for public office. Only persons who have given their consent may
National Party: constituency is spread over the be included in the list
geographical territory of at least a majority of the Not include any candidate for elective position,
regions. or who lost the immediately preceding election
Regional Party: constituency is spread over the No change allowed except:
geographical territory of at least a majority of the 1) Dies
cities and provinces comprising the region. 2) Withdraws in writing
Sectoral Party: (LUFEP-WHIP-VY) organized 3) Becomes incapacitated
group of citizens belonging to any of the following: Incumbent who are nominate are NOT
labor, urban poor, fisherfolk, elderly, peasants, considered resigned.
women, handicapped, indigenous cultural - Qualifications of a Party-list nominee
communities, overseas workers and professionals, 1) Natural-born citizen
veterans and youth. 2) Able to read and write
Sectoral Organization: group of citizens or a 3) Registered voter
coalition of groups of citizens who share similar 4) Resident of the Philippines at least 1 year
physical attributes, characteristics, employment, immediately preceding the day of the election
interest or concern.
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Nachura Notes – Constitutional Law
5) Bona fide member of the party/organization 6) Party and its nominees must comply with the
which he seeks to represent at least 90 days requirements of the law
preceding the day of the election 7) Nominee must also represent the marginalized
6) At least 25 years old at the day of the election and under-represented sector
7) Youth sector – at least 25 but not more than 30. 8) Nominee must be able to contribute to the
If during his term reaches the age of 30, he shall be formulation and enactment of appropriate
allowed to continue until expiration of term. legislation
- Manner of Voting – every voter entitled to two - Choosing Party-List Representative: proclaimed
votes, 1 for member of the House and 1 for the by COMELEC based on a list of names submitted
party, organization or coalition. by respective parties, according to their ranking in
- Number – 20% of the total number of the the list.
members of the House including those under the - Effect of Change of Affiliation
party-list. Changes affiliation during term forfeiture of
In determining the allocation of seats for the seat
second vote: IF w/in 6 months before election, he shall not be
1) Parties, organizations and coalitions shall be eligible for nomination under new party
ranked from the highest to the lowest cased on the - Vacancy – automatically filled by the next rep
number of votes they garnered during the election from the list of nominees and shall serve for the
2) Parties, organizations and coalitions receiving at unexpired term. If the list is exhausted, the party,
least 2% of the total votes cast for the party-list organization or coalition shall submit additional
system shall be entitled to 1-seat each, those nominees.
garnering more than 2% of the votes shall be - Term of Office: term of 3 years and shall be
entitled to additional seats in proportion to their entitled to same salaries and emoluments as regular
total number of votes members of the House.
3) Each party, organization or coalition shall be
entitled to not more than 3 seats Election
4 inviolable parameters: Regular: 2nd Monday of May
1) 20% allocation: combined number of all party- Special: to fill a vacancy; serve for the
list congressmen shall not exceed 20% of the total unexpired term
membership of the House
2) 2% threshold: only those parties garnering a Salaries
minimum of 2% of the total valid votes cast for the Determined by law.
party-list system are qualified to have a seat No increase in said compensation shall take
3) 3-seat limit: each qualified party, regardless of effect until after the expiration of the term of all the
the number of votes it actually obtained, is entitled members of the Senate and House approving such
to a maximum of 3 seats increase.
4) Proportional representation: additional seats
which a qualified party is entitled to shall be Privileges
computed “in proportion to their number of votes.” 1) Freedom from Arrest
In order that a political party registered under Offenses punishable by not more than 6 years
the party-list system may be entitled to a seat in the imprisonment, be privileged from arrest while
House: Congress is in session.
1) Represent the marginalized and under- 2) Privilege of Speech and of Debate
represented sector Not be questioned nor be held liable in any
2) Major political parties must comply with this other place for any speech/debate in the Congress or
statutory policy in any committee.
3) Constitutional prohibition against religious sect
Held to account for such speech or debate by the
4) Not disqualified under RA7941
House to which he belongs
5) Not adjunct or project funded by government
40
Nachura Notes – Constitutional Law
same, excepting such parts as may, in its judgment, proclaimed, has taken oath of office, and has
affect national security; assumed functions of the office.
And the yeas and nays on any question shall, at Decisions may be reviewed by SC by showing
the request of 1/5 of the Members present, be grave abuse of discretion in a petition for certiorari
entered in the Journal. filed under R65.
Each House shall also keep a Record of its
proceedings. Commission on Appointment
Matters which under the Constitution are to be Composition
entered in the journal: a. Senate President, ex-officio chairman
a. Yeas and nays on 3rd and final reading of a bill b. 12 senators
b. Veto message of the President c. 12 house
c. Yeas and nays on the repassing of a bill vetoed * b and c elected by each House on the basis of
by the President proportional representation from the political parties
d. Yeas and nays on any question at the request of registered.
1/5 of members present. Powers – act on all appointments submitted to it
Enrolled Bill Theory: enrolled bill is one duly within 30 session days of Congress from their
introduced and finally passed by both Houses, submission.
authenticated by the proper officers of each and Shall rule by majority vote of its members
approved by the President. Meet only while Congress is in session
Enrolled Bill prevails, except to matters which At the call of its Chairman or majority of all its
under the Constitution must be entered in the members
Journal. Independent of the 2 Houses and has the power
to promulgate its own rules of proceedings.
Electoral Tribunals
Composition
a. 3 SC Justices designated by CJ, the senior Powers of Congress
justice shall be the chairman 1. General (plenary) legislative power
b. 6 members of the house, chosen on the basis of - Limitations:
proportional representation from the political parties 1. Substantive
registered - Express
Non-partisan court; independent of Congress a. Bill of rights
Termination of Membership: b. Appropriations
a. Expiration of congressional term c. Taxation
b. Death d. Constitutional appellate jurisdiction of SC
c. Resignation from political party e. No law granting a title of royalty or nobility
d. Formal affiliation to another political party shall be passed
e. Removal for other valid causes - Implied
Cannot disqualify senator-member just because a. Non-delegation of powers
election contest is filed against him. (Abbas vs. b. Prohibition against the passage if irrepealable
Senate ET) laws
Doctrine of Primary Administrative Jurisdiction, 2. Procedural
prior recourse to the House is necessary before the a. Only one subject to be expressed in the title
case may be brought to the Court. - Title is not required to be an index of the
Power: sole judge of all contests relating to the contents of the bill
election, returns and qualifications of their - Sufficient compliance if the title expresses the
respective members. general subject and all the provisions of the statute
HRET may assume jurisdiction only when after are germane to thee subject
the winning candidate shall have been duly
42
Nachura Notes – Constitutional Law
- Sufficient if the title is comprehensive enough, provision that is not found either in the House or
as in this case, to include subjects related to the Senate bill.
general purpose which the statute seeks to achieve. If the Committee can propose an amendment
- Rider is a provision not germane to the subject consisting of 1 or 2 provisions, there is no reason
matter of the bill. why it cannot propose several provisions,
b. Three readings on separate days collectively considered as “an amendment in the
- Printed copies of bill in its final form distributed nature of a substitute” so long as the amendment is
to Members 3 days before its passage germane to the subject of the bills before the
- EXCEPT when the President certifies to its Committee.”
immediate enactment to meet a public calamity or Jurisdiction of the Conference Committee is not
emergency limited to resolving differences between the Senate
- Upon last reading, no amendment allowed, and and the House versions of the bill. It may propose
vote thereon taken immediately and the yeas and an entirely new provision.
nays entered in the journal - Approval of Bills
- Presidential certification dispensed with the The bill becomes a law in the following cases:
requirement not only of printing but also that of a. President approves the same and signs it.
reading the bill on separate days. b. Congress overrides the Presidential veto – if the
3. Legislative Process President disapproves the bill, he shall return the
- Requirements as to bill same, with his objections contained in his Veto
Only 1 subject to be expressed in the title message to the House of origin (which shall enter
Appropriation, revenue bills, tariff bills, bills of the objections at large in its Journal). The veto is
local application, bills authorizing increase of overridden upon a vote of 2/3 of all members of the
public debts and private bills shall originate House of origin and the other House. Yeas and
exclusively in the House of Representative. Nays entered in the Journal of each House.
It is not the law, but the bill, which is required o No pocket veto.
to originate exclusively in the House, because the o Partial veto, as a rule, is invalid. It is allowed
bill may undergo such extensive changes in the only for particular items in an appropriation,
Senate that the result may be a rewriting of the revenue or tariff bill. The President cannot veto part
whole. of an item in an appropriation bill while approving
The Constitution does not prohibit the filing in the remaining portion of the item.
the Senate of a “substitute bill” in anticipation of its o Legislative Veto – a congressional veto is a
receipt of the bill from the House, so long as the means whereby the legislature can block or modify
action by the Senate as a body is withheld pending administrative action taken under a statute. It is a
receipt of the House bill. form of legislative control in the implementation of
- Procedure: passed 3 readings on separate days, particular executive action. It may be negative
and printed copies in its final form have been (subjecting the executive action to disapproval by
distributed to its Members 3 days before its passage Congress) or affirmative (requiring approval of the
EXCEPT when President certifies to the necessity executive action by Congress)
of its immediate enactment to meet a public c. When the President fails to act upon the bill for
calamity or emergency. 30 days from receipt thereof, the bill shall become a
Courts are denied the power to inquire into law as if he had signed it.
allegations that, in enacting a law, a House of 2. Power of Appropriation
Congress failed to comply with its own rules, in the Spending power called the “power of the purse”
absence of any showing that there was a violation of belongs to Congress subject only to the veto power
constitutional requirements or the rights of private of the President.
individuals. It is the President who proposes the budget, the
It is within the Bicameral Conference final say on the matter of appropriation is lodged in
Committee to include in its report an entirely new Congress.
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Nachura Notes – Constitutional Law
The power of appropriation carries with it the or irrelevant provisions included in the bill to ensure
power to specify the project/activity to be funded its approval.
under the appropriation law. i. Procedure for approving appropriations for
Need for appropriation – “NO money shall be Congress shall strictly follow the procedure for
paid out of the Treasury except in pursuance of an approving appropriations for other departments and
appropriation made by law.” agencies. (to prevent sub rosa appropriation by
Indispensable requisites or condition sine qua Congress)
non for the execution of government contracts: ii. Prohibition against transfer of appropriations
a. Existence of appropriation Exception:
b. Availability of funds 1) President
Appropriation law – a statute the primary and 2) Senate President
specific purpose of which is to authorize the release 3) Speaker
of public funds from the Treasury. 4) Chief Justice
Classification: 5) Heads of Constitutional Commission
1) General Appropriations Law – passed annually, By law, be authorized to augment any item in
for the financial operations of the government. the general appropriation law for their respective
2) Special Appropriations Law – for specific offices from savings in other items of their
purpose respective appropriations.
Implied Limitation on Appropriation Measures iii. Prohibition against appropriation for sectarian
1) Appropriation must be devoted to public benefit
purpose Exception: priest, preacher, minister or dignitary
2) Sum authorized to be released must be is assigned to the armed forces or to any penal
determinate or at least determinable institution or government orphanage or leposarium.
Decree do not specify the specific amounts to be iv. Automatic reappropriation
paid, the amounts are nevertheless made certain by If Congress failed to pass the general
the legislative parameters provided in the decrees. appropriations bill for the ensuing year, the general
The mandate being only to pay the principal, appropriations bill for the preceding fiscal year shall
interest, taxes and other normal banking charges. be deemed re-enacted until said bill is passed.
Constitutional Limitation on Special Impoundment –the refusal by the President for
Appropriation Measure whatever reason to spend funds made available by
1) Specify the public purpose for which the sum is Congress. It is the failure to spend or obligate
intended budget authority of any type.
2) Must be supported by funds actually available Appropriation Reserves – the Administrative
as certified to by the National Treasurer or to be Code authorizes the Budget Secretary to establish
raised by a corresponding revenue proposal reserves against appropriations to provide for
included therein. contingencies and emergencies which may arise
Constitutional Rules on General Appropriations during the year.
Law: This is “expenditure deferral” not suspension,
• Congress may not increase the appropriations since the agencies concerned can still draw on the
reserves if the fiscal outlook improves.
recommended by the President for the operation of
3. Power of Taxation
the Government.
Limitations
• The form, content and manner of preparation of
1. uniform and equitable – evolve a progressive
the budget shall be prescribed by law.
system of taxation
• No provision or enactment shall be embraced 2. charitable institutions, etc. and all lands,
unless it relates specifically to some particular buildings and improvements actually, directly and
appropriation. Any such provision or enactment exclusively used for religious, charitable or
shall be limited in its operation to the appropriation educational purposes shall be exempt from taxation.
to which it relates. This is intended to prevent riders
44
Nachura Notes – Constitutional Law
3. all revenues and assets of non-stock, non-profit Concurrence of majority of all members of the
educational institutions used directly, actually and Senate
exclusively for educational purposes shall be 12. Power to concur in treaties or international
exempt from taxation. agreements
4. Law granting tax exemptions shall be passed 2/3 of all the members of the Senate
only with concurrence of majority of all members of 13. Power to confirm certain appointments by the
Congress President
4. Power of Legislative Investigation in the event of vacancy in the Office of VP,
Conduct inquiries in aid of legislation. from among members of Congress confirmed by
Rights of persons appearing in or affected by majority vote of all the Members of both Houses of
such inquiries shall be respected. Congress, voting separately.
Limitations Nominations by President under Sec 16, Article
1. in aid of legislation 7 confirmed by Commission on Appointments
2. in accordance with duly published rules of 14. Power to impeachment
procedure 15. Power relative to natural resources
3. Rights of persons appearing in, or affected by 16. Power to propose amendments to the
such inquiry shall be respected Constitution
Power to punish for contempt: Senate being a
continuing body may order imprisonment for an IX. EXECUTIVE DEPARTMENT
indefinite period, but principles of due process and
equal protection will have to be considered. The President
5. Question Hour
Heads of the departments may upon their own Qualifications
initiative with the consent of the President OR upon 1. natural-born citizen
the request of wither House, as the rules of each 2. registered voter
House shall provide, appear before and be heard by 3. able to read and write
the House on any matter pertaining to their 4. on the day of the election, at least 40 years old
departments. 5. resident of the Philippines for at least 10 years
Written questions submitted to the Senate P or immediately preceding such election
Speaker, 3 days before the scheduled appeared.
Interpellations shall not be limited to the written Election
questions, may cover matters related thereto. - Regular Election: 2nd Monday of May
When the security of the State or the public - Congress as Board of Canvassers
interest so requires, may be held in executive Returns of every election for President and VP,
session. duly certified by Board of Canvassers of each
6. War Powers province or city shall be transmitted to Congress
Declaration of the existence of state of war – 2/3 directed to Senate President.
SP, upon receipt, shall not later than 30 days
of both Houses in joint session, voting separately
7. Power to act as Board of Canvassers in election after the day of the election, open all the certificates
of President in the presence of the Senate and House in joint
8. Power to call a Special Election for President public session.
and VP Congress upon determination of the authenticity
9. Power to judge the President’s physical fitness and due execution, shall canvass the votes.
to discharge the functions of Presidency Congress shall promulgate its own rules.
10. Power to revoke or extend suspension of the 2 or more candidates shall have an equal and
privilege of the writ of HC or declaration of martial highest number of votes, one of them shall be
law chosen by a majority vote of all members of
11. Power to concur in Presidential amnesties Congress.
45
Nachura Notes – Constitutional Law
- Congress has the authority to proclaim the - May not be prevented from instituting a suit
winning candidates for the position of President and - Immune from civil liability
Vice President - After tenure, cannot invoke immunity from suit
- Congress may delegate the initial determination for civil damages arising out of acts done by him
of the authenticity and due execution of the while he was President which was not performed in
certificate of canvass to a Joint Congressional the exercise of official duties.
Committee, composed of members of the House - Department Secretaries, though alter egos,
and Senate cannot invoke President’s immunity from suit.
- The decisions and final report of the Committee
shall be subject to the approval of the joint session Prohibitions/Inhibitions
of both Houses if Congress, voting separately. 1. Not receive any other emoluments from the
- Even if Congress has adjourned its regular government or nay other source
session it may continue to perform this 2. Not hold any other office or employment, unless
Constitutional duty of canvassing the presidential provided in this Constitution
and vice-presidential election results without need - VP may be appointed to the Cabinet without
of any call for a special session by the President. need of confirmation from Commission on
- The joint public session cannot adjourn sine die Appointment
until it has accomplished its constitutionally - Secretary of Justice is ex-officio member of
mandated task. Judicial and Bar Council
- No constitutional or statutory basis for - Secretary of Labor ex-officio member of
COMELEC to undertake a separate and an BOD of PEZA
“unofficial” tabulation of results descends to the - Secretary of TC ex-officio Chairman of PPA
level of private organization while using public and LRTA
funds, violates exclusive prerogative of NAMFREL - Prohibition must not be construed as applying to
and taints integrity of envelopes containing ER and poses occupied by Executive officials without
the ERs themselves. additional compensation in an ex-officio capacity,
- SC as Presidential Electoral Tribunal as provided by law and as required by the primary
SC, en banc functions of the said official’s office. These posts
Sole judge of all contests relating to the do not comprise “any other office” but is an
election, returns and qualifications of the President imposition of additional duties and functions on
or VP said official.
Promulgate its own rules 3. Not directly or indirectly practice any other
profession, participate in any business or be
Term of Office: 6 years financially interested in any contract, franchise or
- No re-election special privilege
- No person who has succeeded as President and 4. Strictly avoid conflict of interest in the conduct
has served for more than 4 years shall be qualified of their office
for election to the same office at any time 5. May not appoint Spouse or Relatives by
consanguinity or affinity within the fourth civil
Privileges degree as
1. Official Residence a. Members of Constitutional Commissions
2. Salary b. Office of the Ombudsman
- Determined by law c. Secretaries
- Shall not be decreased during tenure d. Undersecretaries
- No increase shall take effect until after e. Chairman/heads of
expiration of the term of the incumbent during bureaus/offices/GOCCs/subsidiaries
which such increase was approved.
3. Immunity from Suit Rules on Succession
- President is immune from suit - Vacancy at the BEGINNING of term
46
Nachura Notes – Constitutional Law
4. on the day of the election, at least 40 years old - Power to reorganize the OP under Section 31 (2)
5. resident of the Philippines for at least 10 years and b(3) of EO 292 (Administrative Code)
immediately preceding such election power of the President to reorganize offices outside
of the OP proper is limited to merely transferring
Term: No VP shall serve for more than 2 successive functions/agencies from OP to
terms. Departments/Agencies and v.v.
- It is not for the President to determine the
Vacancy in VP validity of the law, it is the function of the judiciary.
- President shall nominate a VP from among Unless and until such law is declared
members of Senate and House unconstitutional, President has the duty to execute
- Assume office upon confirmation by a majority it.
vote of all Members of both Houses of Congress,
voting separately Power of Appointment
- Nominate and with consent of the Commission
Powers of the President on Appointments, appoint:
1) Executive Power a. Heads of the executive departments
2) Power of Appointment b. Ambassadors
3) Power of Control c. Other public ministers and consuls
4) Military Powers d. Officers of the armed forces from the rank of
5) Pardoning Power colonel or naval captain
6) Borrowing Power e. Other officers whose appointments are vested in
7) Diplomatic Power him in this Constitution
8) Budgetary Power - Appoint all other officers of the Government
9) Informing Power whose appointments are not otherwise provided by
10) Others law
a. Call Congress to special session - Appoint those whom he may be authorized by
b. Power to approve or veto bolls law to appoint.
c. Consent to deputation of government personnel - Congress may by law, vest appointment of other
by COMELEC officers lower in rank in the
d. Discipline such deputies a. President alone,
e. Emergency powers, by delegation from b. Courts
Congress c. Heads of
f. General supervision over LGs and autonomous departments/agencies/commissions/boards
regional governments - Appointment: selection, by the authority vested
with the power, of an individual who is to exercise
Executive Power the functions of a given office.
- Executive Power: power to enforce and Designation: imposition of additional duties,
administer the laws usually by law, to one who is already in public
- Power of carrying out the laws into practical service
operation and enforcing their due observance Commission: written evidence of appointment
- Authority to Reorganize the Office of the - Classification of Appointments
President “to achieve simplicity, economy and a. Permanent – extended to persons possessing the
efficiency.” requisite eligibility and are protected by security of
- Power to reorganize the OP under Section 31 (1) tenure
of EO 292 (Administrative Code) President can b. Temporary – extended to persons without
reorganize the OP proper by abolishing, requisite eligibility, revocable at will, without
consolidating or merging units or by transferring necessity of just cause or valid investigation
functions from one unit to another Not subject to confirmation by Commission on
Appointment
48
Nachura Notes – Constitutional Law
If confirmation erroneously given, will not Secretary, the President necessarily appoint the alter
make it a permanent appointment ego of his choice. Congress, cannot by law, compel
Designation is considered only an acting or the President to appoint automatically the
temporary appointment undersecretary as his temporary alter ego. An alter
c. Regular – made by President while Congress is ego, temporary or permanent, holds a position of
in session great trust and confidence.
Takes effect upon confirmation of Commission - Special Limitations on the President’s
on Appointment Appointing Power
Once approved, continues until end of term of 1. may not appoint his spouse or relatives by
the appointee consanguinity or affinity, within the 4th civil degree
as
d. Ad interim – made by President while Congress a. members of Constitutional Commission
is not in session b. Ombudsman
c. Secretaries
Takes effect immediately but ceases to be valid
d. Undersecretaries
if disapproved by the Commission on Appointments
e. Chairmen/heads of bureaus/offices/GOCCs
or upon next adjournment of Congress (by-passed
2. appointments made by acting president shall
through inaction)
remain effective unless revoked by elected
Intended to prevent interruptions in vital President w/in 90 days from assumption of office
government services 3. 2 months immediately before the next
Permanent and cannot be withdrawn by the presidential election and up to the end of his term, a
President once the appointee has qualified President or acting President shall not make
If disapproved by the Commission on appointments EXCEPT temporary appointments to
Appointments can no longer be extended a new executive positions when continued vacancies will
appointment; decision of the Commission is final prejudice public service or endanger public safety
and binding No law that prohibits local executive officials
If by-passed President is free to renew the ad 4. Congress power to prescribe qualifications
interim appointment 5. Judiciary may annul an appointment made by
- Officials who are appointed by the President President of the appointee is not qualified or has not
Does NOT require confirmation by COA been validly confirmed.
a. Commissioner of Customs - Power of Removal
b. Philippine Coast Guard Implied from power of appointment
c. Chairman of Commission of Human Rights President cannot remove officials appointed by
d. NLRC Chairman and Commissioners him where the Constitution prescribes certain
- Congress cannot by law require confirmation of methods for separation of such officers from service
appointments of government officials other than Chairman and commissioners of Constitutional
those mentioned in the Constitution
Commissions impeachment
- Steps in the Appointing Power
a. Nomination by President Judges disciplining authority of SC
b. Confirmation by COA Where power of removal is lodged in President:
c. Issuance of the Commission a. Cause as may be provided by law
- Appointment is deemed complete upon b. Prescribed administrative procedure
acceptance; pending such acceptance, the Members of career service of the Civil Service
appointment may still be validly withdrawn who are appointed by the President may be directly
- Discretion of Appointing Authority – includes disciplined by him
the determination of the nature ad character of Members of Cabinet and Officers whose
appointment continuity in office depends upon pleasure of
- In case of vacancy in an office occupied by an President replaced any time; separation is not by
alter ego of the President, e.g. Department removal but EXPIRATION of term.
49
Nachura Notes – Constitutional Law
50
Nachura Notes – Constitutional Law
Mere declaration of a state of rebellion cannot NOT automatically suspend the privilege of the
diminish or violate constitutionally protected rights writ
Power to organize courts martial for the disciple
of members of the armed forces Pardoning Power
Power to create military commissions for the - Except in cases of IMPEACHMENT or AS
punishment of war criminals OTHERWISE PROVIDED IN THE
Military tribunals cannot try civilians when civil CONSTITUTION
courts are open and functioning - May grant, after conviction by final judgment
Members of the PNP are not within the a. Reprieves
jurisdiction of the military court b. Commutations
RA 7055, lawmakers intended to return to c. Pardons
civilian courts jurisdiction over offenses that have d. Remit fines and forfeitures
traditionally within their jurisdiction but did not - May grant Amnesty with concurrence of a
divest the military courts jurisdiction over cases majority of all members of the Congress
mandated by the Article of War - Pardon: act of grace which exempts the
a. Disrespect towards the President individual from punishment that the law inflicts
b. Disrespect towards Superior Officer upon the crime he has committed
c. Sedition/Mutiny - Commutation: reduction or mitigation of
d. Conduct Unbecoming an Officer and a penalty
Gentleman - Reprieve: postponement of sentence/ stay of
e. General Articles of the Articles of War execution
- Suspension of the privilege of the writ of HC - Parole: release from imprisonment but still in
custody of law although not in confinement
Grounds: invasion or rebellion, when public
- Amnesty: act of grace, with concurrence of
safety requires it
legislature, usually extended to group of persons
Duration: not to exceed 60 days, unless who committed political offenses, puts into oblivion
extended by Congress the offense itself
Duty of President to Report action to Congress: - Discretionary exercise by the President
w/in 48 hours, personally or in writing - Cannot be controlled by Legislature or reversed
Congress may revoke or extend by a majority by courts unless there is a constitutional violation.
vote of all its members, voting jointly - Limitations:
SC may review upon proceeding filed by any 1) Cannot be granted in cases of impeachment
citizen, as to the sufficiency of factual basis. It must 2) Cannot be granted in cases of violation of
promulgate its decision w/in 30 days from its filing. election offenses w/o favorable recommendation of
Suspension does not impair the right to bail. COMELEC
Suspension applies to persons judicially charged 3) Cannot be granted in cases of legislative
for rebellion or offenses inherent in or directly contempt or civil contempt
connected with invasion 4) Cannot absolve civil liability
During suspension, any person thus arrested 5) Cannot restore public offices forfeited
shall be judicially charged w/in 3 days, otherwise he - Exceptions: on consideration of justice and
shall be released. equity, entitled to reinstatement (Sabello vs. DECS)
- Martial Law 6) Only after conviction by final judgment
NOT Suspend operation of the Constitution - Classification of Pardon:
NOT Supplant the functioning of civil courts or 1) Plenary or partial
legislative assemblies 2) Absolute or conditional
NOT authorize conferment of jurisdiction on Conditional pardon is in the nature of a contract
military courts and agencies over civilians where between the Chief Executive and the convicted
civil courts are able to function criminal.
51
Nachura Notes – Constitutional Law
53
Nachura Notes – Constitutional Law
En Banc – concurrence of a majority of the 2) All cases involving legality of any tax, impost,
members who took part in the deliberations and assessment or toll or any penalty imposed in
voted relation thereto
1) Constitutionality of a treaty, international or 3) Jurisdiction of lower court is in issue
executive agreement, or law 4) All criminal cases in which penalty imposed is
2) All others required by ROC RP or higher
3) Constitutionality, application or operation of 5) All cases in which only an error or question of
PDs, orders, instructions, ordinances and other law is involved
regulations
Division - concurrence of a majority of the - Does not include power of SC to review
members who took part in the deliberations and decisions of administrative bodies
voted and in no case without the concurrence of at - Penalty is RP, accused must appeal. Otherwise,
least 3 such members judgment of conviction will become final and
When required number is not obtained case executory
shall be decided en banc (case – decided NOT - If death, TC shall forward records for automatic
matters - resolved) review
No doctrine or principle of law laid by a court - Question of Law: correct application of law or
sitting en banc or in a division, may be modified or jurisprudence to a certain set of facts; when the
reversed except by the court sitting en banc issue does not call for an examination of the
probative value of the evidence, the truth or
Powers of the SC falsehood of the facts being admitted.
1) Original Jurisdiction
2) Appellate Jurisdiction Temporary Assignment of judges of LCs to other
3) Temporary Assignment of judges of LCs to stations as public interest may require
other stations as public interest may require
4) Order change of venue or place of trial, to avoid Order change of venue or place of trial, to avoid
miscarriage of justice miscarriage of justice
5) Rule-Making Power
6) Power of Appointment Rule-Making Power
7) Power of Administrative Supervision - Promulgate rules:
8) Annual Report 1) Protection and enforcement of constitutional
rights
Original Jurisdiction 2) Pleadings
1) Cases affecting ambassadors, public ministers 3) Practices
and consuls 4) Procedure in all courts
2) Petition for certiorari, prohibition, mandamus 5) Admission to practice of law
3) Quo warranto 6) Admission to TB
4) Habeas corpus 7) Legal assistance to underprivileged
- Limitations:
Appellate Jurisdiction – review, revise, reverse, 1) Simplified and inexpensive procedure
modify, or affirm on appeal or certiorari as the ROC 2) Uniform in all courts of the same grade
may provide final judgments and orders of lower 3) Not diminish, increase or modify substantive
courts in: rights
1) All cases involving constitutionality/validity of - Integrated Bar
any treaty, international or executive agreements, State-organized bar to which each lawyer must
law, PD, proclamation, order, instruction ordinance belong
or regulation is in question Official unification of entire lawyer population,
where each lawyer is given the opportunity to do his
share in carrying out the objectives of the Bar as
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Nachura Notes – Constitutional Law
The absence of bad faith or malice will not - Court does not lose jurisdiction despite the lapse
totally exculpate them from charges of of the mandatory period.
incompetence and ignorance of the law when they
render decisions that are totally bereft of factual and XI. CONSTITUTIONAL COMMISSION
legal bases.
- No law shall be passed reorganizing the Independent Constitutional Commission
Judiciary when it undermines the security of tenure 1. Civil Service Commission
of its members. 2. COMELEC
3. Commission on Audit
Salaries
- Fixed by law Safeguards Insuring the Independence of the
- May not be decreased during their continuance Commission
in office 1. constitutionally created, and not be abolished by
- Imposition of income tax on salaries of judges statute
does not violate the constitutional prohibition 2. expressly described as “independent”
against decrease in salaries 3. conferred certain powers and functions which
cannot be reduced by statute
Periods of Decisions 4. enjoy fiscal autonomy
- All cases filed after the effectivity of the “no report, no release” policy may not be
Constitution must be decided and resolved, from validly enforced against offices vested with fiscal
date of submission autonomy.
24 months – SC Automatic release of approved annual
12 months – lower collegiate courts appropriations to a constitutional commission
3 months – all other lower courts vested with fiscal autonomy should be construed to
- Unless in the 2 latter cases, the period is reduced mean that no condition to fund releases to it may be
by the SC imposed.
- Certification to be signed by the Chief Provision in Section 3, Article VIII, prohibiting
Justice/Presiding Justice shall be issued stating the the reduction in the appropriation for the Judiciary
reason for delay below the amount appropriated for the previous
- Must not sacrifice for expediency’s sake the year does not appear in Section 5, Article IX-A….
fundamental requirements of due process Congress is not prohibited from reducing the
- “sin perjuicio” judgment without a statement of appropriations Constitutional Commissions below
the facts in support of its conclusions, to be later the amount appropriated for them for the previous
supplemented by the final judgment. year.
- Designed to prevent delay in the administration 5. promulgate its own procedural rules, provided
of justice. they do not diminish, increase or modify substantive
- Failure to decide cases within the prescribed rights (subject to disapproval by the SC)
period is not excusable and constitute gross 6. appoint their own officials and employees in
inefficiency which is a ground for administrative accordance with Civil Service Law
sanction against the defaulting judge. 7. Chairman and members removed only by
- Judges who cannot comply with this mandate impeachment
should ask for additional time, explaining in their 8. Chairman and members are given a fairly long
request the reasons for the delay. term of 7 years
- Despite expiration of the mandatory period, the 9. Chairman and members may not be reappointed
court, without prejudice to such responsibility as or appointed in an acting capacity
may have been incurred in consequence thereof, 10. salaries of Chairman and members are relatively
shall decide or resolve the case or matter submitted high and may not be decreased during continuance
to it without further delay. in office
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Nachura Notes – Constitutional Law
11. Chairman and members are subject to certain or excess of jurisdiction and does not ordinarily
disqualification calculated to strengthen their empower the Court to review factual findings.
integrity - Certiorari under R65 is the appropriate remedy.
- Judgment of the COA are not reviewable by
Inhibitions/Disqualifications ordinary writ of error or appeal by certiorari to the
1. not hold any other office or employment, during SC. Only when COA acts without or in excess of
tenure jurisdiction, or with GAD amounting to lack or
2. not engage in the practice of any profession excess of jurisdiction, may this court entertain a
3. not engage in the active management or control petition for certiorari under R65.
of any business which in any way may be affected - Decisions of the CSC shall be appealable by
by the functions of his office certiorari to the CA w/in 15 days from receipt of a
4. not be financially interested, directly or copy. From the decision of the CA, the party
indirectly, in any contract or in any franchise or adversely affected thereby shall file a petition for
privilege granted by the Government review on certiorari under R45.
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Nachura Notes – Constitutional Law
5. integrate all human resources development - Or based on highly and technical qualifications
programs for all levels and ranks - Opportunity for advancement to higher career
6. institutionalize a management climate positions
conducive to public accountability - Security of tenure
b. Includes:
- Granting civil service eligibility to employees 1) Open Career Service
under provisional or temporary status who have - Prior qualification in an appropriate
rendered 7 years of efficient service is examination is required
DISCRETIONARY on the CSC and may not be 2) Closed Career Service
compelled by mandamus to issue such eligibility. - Scientific or highly technical
- CSC cannot validly abolish Career Executive 3) Career Executive Service
Service Board - Undersecretaries, bureau directors, etc.
- Power to hear and decide administrative cases 4) Positions in the Armed Forces of the Philippines
instituted before it directly or on appeal, including - Governed by a different merit system
contested appointments. 5) Career Officers
- Power to recall an appointment initially - Other than those belonging to Career Executive
approved in disregard of the applicable provisions Service, appointed by President, e.g. foreign service
of the Civil Service law and regulations. 6) Personnel of GOCC w/ original charters
- Original jurisdiction to hear and decide a 7) Permanent laborers (skilled, semi-skilled or
complaint for cheating in the CS examinations by a unskilled)
government employee. c. Incumbents of positions which are declared to
- Decisions of lower level officials in cases be CES positions for the first time who hold
involving personnel actions be appealed to the permanent appointments shall remain under
agency head then to the CSC. (not RTC) permanent status in their position. Upon promotion
- CSC does not have appellate jurisdiction over a or transfer to other CES positions, these incumbents
case of separation from government service under shall be under temporary status in said other CES
Section 2, Article II of the Provisional Constitution. positions until qualify,
d. Mere fact that a position belongs to the CES
Scope of the CS does not automatically confer security of tenure on
- Embrace ALL branches, subdivisions, the applicant. Such right will have to depend on the
instrumentalities and agencies of the Government, nature of his appointment which depends on his
including GOCCs with original charter eligibility or lack of it.
- “with original charter” refers to corporation e. A person who does not have the requisite
chartered by special law as distinguished from qualifications for the position cannot be appointed.
corporations organized under the Corporation Code - Exception: acting capacity in the absence of
- Includes: appropriate eligibles.
1. Economic Intelligence and Information Bureau f. Security of Tenure in the CES – pertains only to
2. Jose M. Rodriguez Hospital RANK and not to the office or the position to which
3. Philippine National Red Cross they may be appointed.
4. UP 1) Career executive service eligibility
5. Morong Water District 2) Appointment to the appropriate career executive
- N/A: service rank
1. National Housing Corporation 2. Non-Career Service
a. Description
Classes of Service - Entrance on bases other than those of the usual
1. Career Service tests utilized for the career service
a. Description - Tenure
- Entrance based on merit and fitness, as far as 1) limited to a period specified by law or
practicable by competitive examinations
58
Nachura Notes – Constitutional Law
59
Nachura Notes – Constitutional Law
May approve as merely temporary an - Reassignment does not offend the constitutional
appointment intended to be permanent when the guarantee
appointee does not possess the requisite eligibility - Reinstatement – deemed not to have left his
and the exigency of the service demands that the office; entitled to payment of back salaries,
position be filled even in a temporary capacity. notwithstanding silence.
Payment of back wages during the period of
Role of the CSC suspension of a civil servant who is subsequently
Check if the appointee possesses the reinstated is proper only if he is found innocent of
qualifications and appropriate eligibility; if he does, the charges and the suspension is unjustified.
appointment is approved; if he doesn’t, appointment BUT where the reinstatement is ordered not as a
is disapproved. result of exoneration but merely as an act of
Selection or placement is made through the liberality, the claim for back wages was not
Placement Committee, the members of which are allowed. It follows the general rule that the public
the representatives of the head of the agency as well official is not entitled to compensation if he has not
as representatives of the employees. Said rendered any service.
Committee’s work is merely recommendatory. - Valid abolition of office does not violate the
Appointment should be submitted to the CSC constitutional guarantee of security of tenure.
w/in 30 days from issuance; otherwise, it shall be - ROC, career service officer or employee who
ineffective. has been unlawfully ousted from his office has 1
CSC Memorandum Circular – only the year within which to file an action in court to
appointing authority has the right to challenge the recover office.
CSC’s disapproval of an appointment. Exception: Cristobal vs. Melchot grounds of
Abella, Jr. vs. CSC both the appointing equity
authority and the appointee are the real parties in - Appellate jurisdiction of the CSC only over
interest and both have legal standing Merit System Protection Board’s decisions in
Challenge to the appointing authority’s administrative disciplinary cases involving the
discretion imposition of the penalty of suspension, fine,
While appointee has no vested right to the demotion in rank or salary, transfer, removal,
position, it was his elgibility that was being dismissal from office – not over MSPB decision
questioned; he has a personal stake in the outcome exonerating the accused. Only by the party
adversely affected (Not ER).
Disqualifications - He who, while occupying one office, accepts
1) Lost in any election within 1 year preceding the another incompatible with the first, ipso facto
appointment vacates the first office and his title thereto is thereby
2) Elective official during tenure terminated without any other act of proceeding.
3) Appointive official, except when allowed by Canonizado vs. Aguirre: accepted another
law or the primary functions of his position position while case questioning the law that
Ex-officio capacity removed him from his first position was still
pending.
Security of Tenure
- Removed and suspended for case provided by Partisan Political Activity – no officer or employee
law. in the civil service shall engage, directly or
- Ground, procedure for investigation and the indirectly, in any electioneering or partisan political
discipline of career service officers and EEs campaign
Career Service Law; Non-compliance constitutes Except to vote
denial of the right to security of tenure Does not prevent expression of views regarding
- Presidential appointee direct disciplinary political problems or mention the names of the
authority of the President public officers he supports
60
Nachura Notes – Constitutional Law
61
Nachura Notes – Constitutional Law
COMELEC decisions reviewable by the SC ensuring free, orderly , honest and peaceful and
1. decisions of COMELEC en banc, on certiorari credible elections, with concurrence of President
2. only decision of COMELEC in the exercise of 5) Accredit Citizen’s Arm and Register political
its adjudicatory or quasi-judicial power may be parties, coalitions or organizations
brought to SC on certiorari After sufficient publication
if merely administrative in character ordinary Present platform/program of government
civil action before trial courts 6) File petition in court for the inclusion/exclusion
of voters, upon verified complaint or in its own
COMELEC en banc shall promulgate rules initiative; investigate and/or prosecute cases for
concerning pleadings and practice before it or violations of election laws
before any of its offices, but they must not diminish, 7) Recommend to Congress effective measures to
increase or modify substantive rights minimize election spending, limitation of places
subject to the rule that rules of procedure of where propaganda materials shall be posted and to
special courts and quasi-judicial bodies shall remain prevent and penalize all forms of election frauds,
effective unless disapproved by the SC offenses, malpractice and nuisance candidates
rules on civpro regarding demurrer to evidence 8) Submit to the President and Congress a
cannot apply to election cases, even by analogy in comprehensive report on the conduct of each
suppletory character. election, plebiscite initiative, referendum or recall
Authority to suspend reglamentary periods
provided by its rules, or the requirement of NFS, in Enforce and administer all laws and regulations
the interest of justice and speedy resolution of relative to the conduct of an election, plebiscite,
cases. It is not constrained to dismiss a case on the initiative, referendum or recall
ground of non-payment of filing fees. Initiative: power of the people to propose
Fingerprinting of chairman and members of the amendments to the Constitution or to propose and
Board of Election Inspectors is an internal matter enact legislation through an election called for the
and may be done even without prior notice. purpose.
Referendum: power of the electorate to approve
Constitutional Powers and Functions or reject legislation through an election called for
1) Enforce and administer all laws and regulations the purpose
relative to the conduct of an election, plebiscite, Recall: termination of official relationship of a
initiative, referendum or recall local elective official for loss of confidence prior to
2) Exclusive original jurisdiction the expiration of his term through the will of the
a. All contests relating to the elections, returns and electorate
qualifications of all elective regional, provincial and Plebiscite: submission of constitutional
city officials. amendments or important legislative measures to
Exclusive appellate jurisdiction the people for ratification.
b. All contests involving elective municipal 1) Broad powers – promulgate rules and
officials decide by RTC regulations in the enforcement of laws relative to
c. Elective barangay officials decided by MTC elections
3) Decide all questions relating to elections Enforcement of provisions of the Omnibus
Determination of the number and location of Election Code exclusive jurisdiction of the
polling places COMELEC
Appointment of election officials and inspectors Includes the ascertainment of the identity of a
Registration of voters political party and its legitimate officers
EXCEPT: right to vote Does not authorize the COMELEC, motu
4) Deputize law enforcement agencies and proprio, without the proper proceedings, to deny
instrumentalities for the exclusive purpose of due course to cancel a certificate of candidacy filed
in due form.
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Nachura Notes – Constitutional Law
Election and contests involving election of question involving the composition and proceedings
Sangguniang Kabataan elections do NOT fall within of the Board of Canvassers)
jurisdiction of the COMELEC DILG ET over a member only after proclamation
Authority to annul results of plebiscite (through
pre-proclamation case of revision of ballots) COMELEC without the power to partially/totally
2) Regulatory power over media of transportation, annul a proclamation or to suspend the effects of a
communication and information proclamation without notice and hearing
to ensure equal opportunity, time, space, right to violation of due process clause
reply, etc.
during election period Power to issue writs of prohibition, certiorari, etc.
exercised only over the media, not over In the exercise of its exclusive appellate
practitioners of media jurisdiction
3) No pardon, amnesty, parole, etc, for violation of
election laws shall be granted by the President Exclusive appellate jurisdiction
without its favorable recommendation All contests involving elective municipal
4) COMELEC cannot exercise power of officials decide by RTC
apportionment Elective barangay officials decided by MTC
5) Power to declare failure of election Decisions shall be final, executory and
The election in any polling place has not been unappealable
held on the date fixed on account of force majeure, Appeal to the COMELEC from RTC must be
violence, terrorism, fraud or other analogous case filed within 5 days from receipt of a copy of the
The election in any polling place has been decision.
suspended before the hour fixed by law for the MR of RTC decision is a prohibited pleading
closing of the voting on account of force majeure, and does not interrupt running of period for appeal.
violence, terrorism, fraud or other analogous case Mere filing of notice of appeal is not sufficient,
After the voting and during the preparation and must be accompanied by payment of correct amount
transmission of the election returns or in custody or of appeal fee.
canvas, such election results in a failure to elect on Permissive – COMELEC may give due course,
account of force majeure, violence, terrorism, fraud and the subsequent payment cures the procedural
or other analogous case. defect.
Petition must show, on its face
1) No voting has taken place in the precint on the Execution Pending Appeal
sate fixed by law or even if there was voting, the COMELEC cannot deprive RTC of its
result nevertheless results in a failure to elect competence to order the execution of judgment
2) Votes not cast would affect the result of the pending appeal, because the mere filing of an
election appeal does not divest the TC of its jurisdiction over
6) Not authorized to make an unofficial quick a case.
count of presidential election results Factors:
1) Public interest involved or will of the electorate
Exclusive original jurisdiction 2) Shortness of the remaining portion of the term
All contests relating to the elections, returns 3) Length of time that the election contest has been
and qualifications of all elective regional, pending
provincial and city officials. Strictly construed against the movant being an
exception to the general rule.
Exclusive jurisdiction over pre-proclamation cases Filed before expiration of the period for appeal.
Possible conflict with HR/S ET foreclosed by
Judgments which may be executed pending
Section 15, RA 7166 prohibits pre-proclamation appeal need not only be those rendered by the TC,
controversies in national offices (EXCEPT on but by the COMELEC as well.
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Nachura Notes – Constitutional Law
64
Nachura Notes – Constitutional Law
Legally remain in office in “hold-over” capacity 3. CPAs with not less than 10 years of auditing
until successors have been elected and qualified experience OR members of the Philippine Bar with
(LGC limits term of barangay officials to 3 years) at least 10 years practice of law
4. not have been candidates in the election
Exclusive original jurisdiction over all pre- immediately preceding the appointment
proclamation cases 5. no time shall ALL members belong to the same
GR: COMELEC restricted, in ore-proclamation profession
cases, to an examination of the election returns on
their face and is without jurisdiction to go beyond Term
them and investigate election irregularities. - Appointed by the President with the consent of
Exception: duty-bound to investigate allegations the Commission on Appointments
of fraud, terrorism, violence and other analogous - Term of 7 years, without reappointment
cases in an action for annulment of election results
or for a declaration of failure of elections. (may Powers and Duties
conduct technical examination of election 1. Examine, audit and settle all accounts pertaining
documents and analyze signatures and fingerprints to the revenue and receipts of, and expenditures or
in order to determine whether the election has been uses of funds and property owned or held in trust or
free, honest and clean) pertaining to the Government
2. Keep the general accounts of Government and
Party-System - a free and open party-system shall preserve vouchers and supporting papers for such
be allowed to evolve according to the free choice of period as provided by law
the people 3. authority to define the scope of its audit and
Votes cast in favor of political party, examination, establish techniques and methods
organization or collation that are REGISTERED. required therefore
Entitled to appoint poll watchers in accordance 4. Promulgate accounting and auditing rules and
with law. regulations, including those for the prevention and
disallowance of irregular, unnecessary, expensive,
Election Period extravagant or unconscionable expenditures or uses
of government funds or property
Commence 90 days before the day of the
election and shall end 30 days thereafter
Examine, audit and settle all accounts pertaining to
Exception: period fixed by COMELEC in the revenue and receipts of, and expenditures or
special cases uses of funds and property owned or held in trust or
pertaining to the Government
Judicial Review of COMELEC Decisions
Post-audit basis
Petition for certiorari (R65) 1. Constitutional Commissions and bodies/offices
Filed with SC granted fiscal autonomy
w/in 30 days from receipt of decision of 2. autonomous state colleges and universities
COMELEC en banc 3. GOCCs and subsidiaries – with or without
original charter
COMMISSION ON AUDIT 4. Non-governmental entities receiving subsidy or
equity
Composition Temporary or special pre-audit
- Chairman Duty to pass in audit a salary voucher is
- 2 Commissioners discretionary
Exception: authority of Auditor General is
Qualifications limited to auditing (whether 1) there is a law
1. Natural-born appropriating funds for a given purpose, 2) goods or
2. at least 35 years old services have been delivered, 3) payment has been
65
Nachura Notes – Constitutional Law
Included in the order of business w/in 10 session 2. offender is public official or employees holding
days and referred to the proper Committee w/in 3 any of the positions enumerated in par a Sec 4 RA
session days. 8249; and
If the verified complaint is filed by at least 1/3 3. offenses committed in relation to the office
of all the members of the House, the same shall Only instance when Sandiganbayan may
constitute the Articles of Impeachment and the trial exercise jurisdiction over a private individual is
by Senate shall forthwith proceed (no need to refer when the complaint charges him either as a co-
the same to the proper Committee) principal, accomplice or accessory of a public
The Committee, after hearing, and by a majority officer who has been charged with a crime within
vote of all its members, shall submit its report to the the jurisdiction of the Sandiganbayan.
House w/in 60 session days Whether or not the Sandiganbayan or the RTC
A vote of at least 1/3 of all the members of the has jurisdiction shall be determined by the
House shall be necessary to affirm a favorable allegations in the information specifically on
resolution with the Articles of Impeachment of the whether or not the acts complained of were
Committee, or override its contrary resolution. committed in relation to the official functions of the
The vote of each member shall be recorded. accused.
2. Limitations on initiating Impeachment Case Required that the charge be set forth with
Not more than once within a period of 1 year particularity as will reasonable indicate that the
against the same official. exact offense which the accused is alleged to have
3. Trial and Decision committed is one in relation to his office.
The Senate shall have the sole power to try and Ramification of Section 7, RA 8249
decide all cases of impeachment. 1. if the trial of the cases pending before whatever
The Senators shall be on oath or affirmation. court has already begun as of the approval of RA
President is on trial, the Chief Justice of the SC 8249, the law does not apply;
shall preside, but shall not vote. 2. if trial of cases pending before whatever court
A decision of conviction must be concurred in has not begun as of the approval of RA 8249, then
by at least 2/3 of all members of the Senate. the law applies and the rules are:
4. Effect of Conviction a. if SB has jurisdiction over a case pending before
Removal from office and disqualification to it, then it retains jurisdiction
hold office. b. if SB has no jurisdiction over a case pending
Party convicted shall be liable and subject to before it, case shall be referred to the regular courts
prosecution, trial and punishment according to law. c. if SB has jurisdiction over a case pending before
a regular court, the latter loses jurisdiction and the
THE SANDIGANBAYAN same shall be referred to the Sandiganbayan
Anti-graft court d. if a regular court has jurisdiction over a case
pending before it, then said court retains jurisdiction
Composition
1 Presiding Justice Decision/Review
8 Associate Justices Unanimous vote of all 3 members required for
With the rank of the Justice of the CA the pronouncement of judgment by a division.
Sits in 3 divisions of 3 members each Decisions of the Sandiganbayan shall be
reviewable by the SC on petition for certiorari
Jurisdiction Mandatory for the Sandiganbayan to suspend
Following must concur: any public officer against whom a valid information
1. violation of RA 3019, RA 1379, Chapter 2 charging violation of that law, or any offense
Section 2 Title 7 Book II of RPC, Eos 1, 2, 14 and involving fraud upon the government or public
14-A or other offenses of felonies whether simple or funds or property is filed. (RA 3019)
complexed with other crimes;
67
Nachura Notes – Constitutional Law
personnel for investigation by the Deputy 5) inspection may cover only the account identified
Ombudsman for Military Affairs. in the pending case
Power to cite for contempt; exercised by the investigation being done by the Ombudsman is
Ombudsman while conducting preliminary NOT one before a court of competent jurisdiction
investigation because preliminary investigation is Ombudsman has no authority to directly dismiss
an exercise of quasi-judicial functions. a public officer from government service
Appeals shall be made to the CA in accordance Can only recommend to the officer concerned
with R43. the removal of a public officer or employee found
“any illegal act or omission of any public to be administratively liable
official” is broad enough to embrace any crime HOWEVER the refusal, without just cause, of
committed by a public official or employee. any officer to comply with such an order of the
Power of the Ombudsman to investigate and to Ombudsman to penalize an erring officer or
prosecute, as granted by law, is plenary and employee is a ground for disciplinary action.
unqualified. Special Prosecutor
The authority of the Ombudsman to investigate Existing Tanodbayan (at the time of the
is not an exclusive authority, but rather a shared or adoption of the 1987 Constitution) shall be known
concurrent authority with the Department of Justice as the Special Prosecutor.
Panel of Investigators, “in respect of the offense It shall continue to function and exercise its
charged” powers as now or hereafter provided by law, except
It is not for the court to review the those conferred to the Office of the Ombudsman.
Ombudsman’s paramount decision in prosecuting or
dismissing a complaint filed before his office. Ill-gotten Wealth
Exception: grave abuse of discretion on the part Right of the State to recover properties
of the Ombudsman in either prosecuting or unlawfully acquired by public officials or
dismissing a case before it is evident. employees, from them or from their nominees or
Case law holds that the Court is loathe to transferees, shall not be barred by prescription,
interfere with the exercise by the Ombudsman of its laches or estoppel.
powers. Applies only to civil actions for recovery of ill-
While the Office of the Ombudsman has the gotten wealth and not to criminal cases.
discretion to determine whether an information
should be withdrawn and a criminal case should be Restriction on Loans
dismissed, and to move for the withdrawal of such
No loan, guaranty or other form of financial
information or dismissal of a criminal case, the final
accommodation for any business purpose may be
disposition of the said motion and of the case is
granted directly or indirectly by any government
addressed to the sound discretion of the
owned or controlled bank or financial institution to
Sandiganbayan, subject only to the caveat that the
(during their tenure):
action of the Sandiganbayan must not impair the
1) President
substantial rights of the accused and the right of the
2) VP
people t due process of law.
3) Members of the Cabinet
RA 1405 (Law on Secrecy of Bank Deposit) –
4) Congress
before an in camera inspection of bank accounts 5) SC
may be allowed: 6) ConCom
1) there must be a pending case before a court of 7) Ombudsman
competent jurisdiction 8) Any firm or entity in which they have
2) account must be clearly identified controlling interest
3) inspection limited to the subject matter of the
pending case before the court Statement of Assets, Liabilities and Net Worth
4) bank personnel and account holder must be
notified to be present during the inspection
69
Nachura Notes – Constitutional Law
A public officer or employee shall, upon wildlife, flora and fauna and other natural resources
assumption of office and as often as may be are owned by the State.
required by law, submit a declaration under oath of With the exception of agricultural lands, all
his assets, liabilities and net worth. other natural resources shall not be alienated.
Declaration shall be disclosed to the public in Regalian Doctrine: all agricultural, timber and
the manner provided by law in case of: mineral lands are subject to the dominion of the
1) President State.
2) VP Before any land may be classified from the
3) Members of the Cabinet forest group and converted into alienable or
4) Congress disposable land from agricultural or other purposes,
5) SC there must be positive act from the Government.
6) ConCom Absence of proof that property is privately
7) Other constitutional offices owned, the presumption is that it belongs to the
8) Officers of the armed forces of general or flag State.
rank Any possession, no matter how lengthy, cannot
ripen into ownership. And all lands not otherwise
Allegiance to the State and to the Constitution appearing to be clearly within private ownership are
Any public officer or employee who seeks to presumed to belong to the State.
change his citizenship or acquire the status of an Tasks of administering and disposing lands of
immigrant of another country during his tenure shall public domain belongs to the Director of Lands and
be dealt with by law. ultimately the Secretary of DENR.
The classification of public lands is an exclusive
XIV. NATIONAL ECONOMY AND prerogative of the Executive Department through
PATRIMONY the Office of the President. In the absence of
classification, the land remains unclassified public
Goals land until released and rendered open for
1. equitable distribution of opportunities, income disposition.
and wealth Forest land is not capable of private
2. sustained increase in amount of goods and appropriation and occupation in the absence of a
services, produced by the nation for the benefit of positive act of the Government declassifying it into
the people alienable and disposable.
3. expanding productions as the key to raising the
quality of life Imperium: government authority possessed by the
State, embraced in sovereignty and its capacity to
For attainment of these goals, the State shall: own and acquire property.
Promote industrialization and full employment
based on sound agricultural development and Dominium: lands held by the State in its proprietary
agrarian reform, through industries that make full character. It may provide for the exploitation and
and efficient use of human and natural resources use of lands and other natural resources, including
and which are competitive in both domestic and their disposition, except as limited by the
foreign markets. Constitution.
State shall protect Filipino enterprises from
unfair competition and trade practices. Citizenship Requirements
1. Co-production, joint venture or production
Natural Resources sharing agreements for exploration, development
All lands of public domain, waters, mineral, and utilization of natural resources
coal, petroleum and other mineral oils, all forces of Filipino citizens
potential energy, fisheries, forests or timber,
70
Nachura Notes – Constitutional Law
Corporations at least 60% of whose capital is 5. Franchise, certificate or authorization for the
Filipino-owned operation of a public utility
Agreements shall not exceed 25 years, Citizens of the Philippines
renewable for another 25 Corporations at least 60% of whose capital is
2. Use and enjoyment of the nation’s marine Filipino-owned
wealth Franchise, certificate or authorization shall not
Exclusively to Filipino citizens be exclusive nor for a period for more than 50
Protect the rights of subsistence fishermen, years, and shall be subject to amendment, alteration
especially of local communities to the preferential or repeal by Congress. All executive and managing
use of the communal marine and fishing resources, officers must be Filipino citizens.
both inland and offshore. No franchisee can demand or acquire
“Marginal Fisherman” – individual engaged in exclusivity in the operation of a public utility.
fishing whose margin of return or reward from his Congress does not have the exclusive power to
harvest of fish, as measured by existing price levels, issue such authorization also administrative
is barely sufficient to yield a profit or cover the cost bodies.
of gathering the fish. Franchise for the operation of public utility
“Subsistence Fishermen” – catch yields but the does not require a franchise before one can own the
irreducible minimum for his livelihood. facilities needed to operate a utility, so long as it
LGC defined “marginal farmer or fisherman” - does not operate them to serve the public.
engaged in the subsistence farming or fishing which Public utility: business or service engaged in
shall be limited to the sale, barter or exchange of regularly supplying the public with some
agricultural or marine products. commodity or service of public consequence.
Preferential right granted to them is not Implies public use and service.
absolute. All broadcasting, whether radio or television, is
3. Alienable lands of public domain licensed by the Government. They do not own the
airwaves and frequencies and they are merely given
Filipino citizens may acquire not more than 12 he temporary privilege.
hectares by purchase, homestead or grant OR lease A franchise is a privilege subject to amendment.
more than 500 hectares Joint venture falls within the purview of
Private corporation may lease not more than association; if it wishes to engage in the business of
1,000 hectares for 25 years, renewable for another operating a public utility, must comply with the 60-
25 years 40% Filipino-foreign capitalization requirement.
4. Certain areas of investment (as Congress shall
provide when national interest so dictates) Classification of Lands of Public Domain
Filipino citizens Lands of public domain are classified into:
Corporations at least 60% of whose capital is 1. agricultural
Filipino-owned 2. forest or timber
Congress may prescribe higher percentage of 3. mineral lands
Filipino ownership 4. national parks
Filipino First Policy Agricultural lands may further be classified by
o positive command which is complete in itself law according to the uses to which they may be
o needs no further guidelines or implementing devoted.
rules or laws for its operation Congress shall determine by law the size of the
o per se enforceable lands of the public domain which may be acquired,
o Filipinos should be preferred and when the developed, held or leased and conditions therefore.
Constitution declares that a right exists in certain The classification of public lands is a function
specified circumstances, an action may be of the executive branch of the Government –
maintained to enforce this right. Director of the Land Management Bureau.
71
Nachura Notes – Constitutional Law
The decision of the Director, when approved by The State shall apply the principles of agrarian
the Secretary of the Department of Environment reform or stewardship, whenever applicable, in the
and Natural Resources as to questions of fact is disposition or utilization of other natural resources.
conclusive upon the courts. Including lands of the public domain under
Alienable lands of the public domain shall be lease or concession suitable to agriculture, subject
limited to agricultural lands. to prior rights, homestead rights of small settlers,
Forest land cannot be owned by private persons. and the rights of indigenous communities to their
It is not registrable and possession thereof, no ancestral lands.
matter how lengthy, cannot convert it into private The State may resettle landless farmers and
land, unless the land is reclassified and considered farm workers in its own agricultural estates which
disposable and alienable. shall be distributed to them in the manner provided
Foreshore land is that part of the land which is by law.
between the high and low water, and left dry by the
flux and reflux of the tides. It is part of the alienable Private Lands
and of the public domain and may be disposed of - Private lands shall be transferred or conveyed to
only by leased and not otherwise. individuals, corporations or associations qualified to
Private corporations or associations may not acquire or hold lands of the public domain.
hold such alienable lands of the public domain - Exception: in cases of hereditary succession
except by lease. - Any sale or transfer in violation of the
It would cease to be public land only upon the prohibition is null and void.
issuance of the certificate of title to any Filipino - Being an alien, disqualified from acquiring and
citizen qualified to acquire the same. owning real property.
Neither can petitioner recover the money he had
1973 Constitution cannot impair vested rights.
Where the land was acquired in 1962 when spent for the purchase.
corporations were allowed to acquire lands not Equity, as a rule, will follow the law, and will
exceeding 1,024 hectares, the same may be not permit to be done indirectly that which, because
registered in 1982. of public policy, cannot be done directly.
- Action to recover the property sold filed by the
The 1987 Constitution prohibits private
former owner will lie, the pari delicto ruling having
corporations from acquiring alienable lands of the
been abandoned.
public domain.
- The lease for 99 years with a 50-year option to
Congress shall determine the specific limit of
purchase the property if and when Wong Heng
forest land and national parks, marking clearly their
would be naturalized is a virtual surrender of all
boundaries on the ground.
rights incident to ownership and therefore invalid.
The State shall protect the rights of indigenous
(PNB vs. Lui She)
cultural communities to their ancestral lands to
- Land tenure is not indispensable to the free
ensure their economic, social and cultural well
exercise of religious profession and worship.
being.
A religious corporation, controlled by non-
Filipinos, cannot acquire and own lands even for a
The Stewardship Concept
religious use or purpose.
The use of property bears a social function, and
For a religious corporation sole to acquire lands,
all economic agents shall contribute to the common
it must appear that at least 60% of the faithful or its
good, individuals and private groups, including
members are citizens of the Philippines in order to
corporations, cooperatives and similar collective
comply with the citizenship requirement.
organizations, shall have the right to own, establish
This is so regardless of the citizenship of the
and operate economic enterprises, subject to the
incumbent inasmuch as a corporation sole is merely
duty of the State to promote distributive justice and
an administrator of the temporalities or properties
to intervene when the common good so demands.
titled in its name and for the benefit of its members.
72
Nachura Notes – Constitutional Law
- Land sold to an alien which was later transferred State, alone, which may institute reversion
to a Filipino citizen – or where the alien later proceedings against public lands allegedly acquired
becomes a Filipino citizen can no longer be through fraud and misrepresentation.
recovered by the vendor because ether is no longer Private parties are without legal standing at all
any public policy involved. question the validity of respondent’s title.
- Exceptions to the Rule: Property in dispute is still part of the public
1. Hereditary Succession domain, only the State can file suit for
Exception: testamentary disposition reconveyance of such public land.
2. A natural born citizen of the Philippines who The State can be in estoppel by the mistakes or
has lost his Philippine citizenship may be a errors of its officials or agents.
transferee of private lands o Estoppel against the State is not favored; it may
Filipino citizen may acquire 5,000 square be invoked only in rare and unusual circumstances.
meters of urban land o State may not be allowed to deal dishonorably
Filipino citizen may acquire 3,000 hectares of
or capriciously with its citizens.
rural land
o State may be held in estoppel for irregular acts
May be used for residence, business and for
and mistakes of its officials.
other purposes.
o Republic vs. CA, where the State failed to
3. Americans hold valid title to private lands as correct and recover the alleged increase in the land
against private persons area of the titles issued, the prolonged inaction
strongly militates against its cause, tantamount to
Titles to private lands acquired by such persons
laches.
before such date (July 3, 1974) shall be valid as
o Laches – failure or neglect, for an unreasonable
against private persons only) – Transitory Provision
of the 1973 Constitution. and unexplained length of time, to do that which by
Previous owner may no longer recover land exercising due diligence could or should have been
from an American buyer who succeeded in done earlier.
obtaining title over the land. o The negligence or omission to assert a right
Only the State has the superior right to the land within a reasonable time, warranting a presumption
through the institution of escheat proceeding (as a that the party entitled to assert it either abandoned it
consequence of the violation of the Constitution) or or decline to assert it.
through an action for reversion (as expressly
authorized under the Public Land Act with respect 3. Action for recovery filed by the former Filipino
to lands which formerly formed part of the public owner, the pari delicto ruling having been
domain). abandoned, unless the land is sold to an American
citizen prior to July 3, 1974 and the American
Remedies to Recover Private Land from citizen obtained title thereto.
Disqualified Alien
1. Escheat Proceedings Preference for Filipino Labor, etc.
2. Action for Reversion under Public Land Act - The State shall promote the preferential use of
The Director of Lands has the authority and the Filipino labor, domestic materials and locally
specific duty to conduct investigation of alleged produced goods, and adopt measures that help make
fraud in obtaining free patents and the them competitive.
corresponding titles to alienable public lands.
Practice of Profession
And if the facts warrant, to file the
- The practice of all profession shall be limited to
corresponding court action for the reversion of the
Filipino citizens
land to the State.
- Exception: in cases prescribed by law
Imprescriptible.
Cooperatives
73
Nachura Notes – Constitutional Law
- Congress shall create an agency to promote the 3. majority of whom shall come from the private
viability and growth of cooperatives as instruments sector
for social justice and economic development. - The authority shall:
- RA 6939: An Act Creating the Cooperative 1. provide policy direction in the areas of money
Development Authority banking and credit
- CDA is devoid of any quasi-judicial authority to 2. have supervision over the operations of banks
adjudicate intra-cooperative disputes and, more 3. exercise such regulatory powers as may be
particularly, disputes related to the election of provided by law over the operations of finance
officers and directors of cooperatives. companies and other institutions performing similar
- CDA may conduct hearings and inquiries in the functions
exercise of its administrative functions. - Until Congress otherwise provides, the Central
Bank shall function as the central monetary
Monopolies authority.
- Policy: the State shall regulate or prohibit
monopolies when the public interest so requires. No XV. SOCIAL JUSTICE AND HUMAN RIGHTS
combinations in restraint of trade or unfair
competition shall be allowed. Policy Statement
- Monopoly – a privilege or peculiar advantage - Congress shall give highest priority to the
vested in one or more persons or companies, enactment of measures that
consisting in the exclusive right to carry on a protect and enhance the right of all the people to
particular business or trade, manufacture a human dignity
particular article, or control the sale of a particular reduce social, economic, and political
commodity. inequalities
- Monopolies are not per se prohibited by the and remove cultural inequities by equitably
Constitution but may be permitted to exist to aid the diffusing wealth and political power for the
government in carrying on an enterprise or to aid in common good.
the performance of various services and functions in - To this end, the State shall regulate the
the interest of the public. acquisition, ownership, use and disposition of
- Subjected to a higher level of State regulation. property and its increment.
- Desirability of competition is the reason for the - The promotion of social justice shall include the
prohibition against restraint of trade. commitment to create economic opportunities based
- The reason for the interdiction of unfair on freedom of initiative and self-reliance.
competition and the reason for the prohibition of - Pursuit to social justice cannot justify breaking
unmitigated monopolies. the law.
- A market controlled by one player (monopoly) - The State’s solitude for the destitute and the
or dominated by a handful of players (oligopoly) is have-nots does not mean it should tolerate
hardly the market where honest-to-goodness usurpation of property, public or private.
competition will prevail.
- Constitution enshrined free enterprise as a Labor
policy, it nevertheless reserves to the Government - The State shall afford full protection to labor,
the power to intervene whenever necessary for the local and overseas, organized and unorganized, and
promotion of the general welfare. promote full employment and equality of
employment opportunities for all.
Central Monetary Authority - It shall guarantee the rights of all workers to:
- Congress shall establish an independent central 1. self-organization
monetary authority, the members of whose 2. collective bargaining and negotiations
governing board must be: 3. peaceful concerted activities, including the right
1. natural-born to strike in accordance with law
2. known probity, integrity and patriotism - They shall be entitled to:
74
Nachura Notes – Constitutional Law
75
Nachura Notes – Constitutional Law
make findings of fact as regards claimed human Establish adequate and relevant education
rights violations involving civil and political rights Free public elementary and high school
but fact-finding is not adjudication, and cannot education
be likened to the judicial function of a court of Scholarship grants and loan programs
justice, or even a quasi-judicial agency or official Out-of-school study programs
3. cannot issue writs of injunction or a restraining Adult education
order against supposed violators of human rights,
not being a court of justice. Constitutional Objectives of Education
1. inculcate patriotism and nationalism
XVI. EDUCATION, SCIENCE AND 2. foster love of humanity
TECHNOLOGY, ARTS CULTURE AND 3. respect for human rights
SPORTS 4. appreciation of the role of national heroes in the
historical development of the country
State Policy 5. teach the rights and duties of citizenship
priority to education, science and technology, 6. strengthen ethical and spiritual values
arts, culture and sports to 7. develop moral character and personal discipline
foster patriotism and nationalism 8. encourage critical and creative thinking
accelerate social progress and 9. broaden scientific and technological knowledge
promote total human liberation and 10. promote vocational efficiency
development
protect and promote the right of all citizens to Optional Religious Instruction
quality education at all levels and shall take - Option expressed in writing by parent or
appropriate steps to make such education accessible guardian
to all. - Public elementary and high schools
- Within regular class hours
National Medical Admission Test (NMAT) - Instructors designated or approved by religious
ensures quality education for future doctors and authorities
protect public health by making sure of the - Without additional cost to Government
competence of future medical practitioners.
Educational Institution
Constitutional right of every citizen to select a
- Ownership
profession or course of study subject to fair,
reasonable and equitable admission and academic Solely by Filipino citizens or
requirements. Corporations 60% Filipino-owned
It may be regulated pursuant to police power of Exception: those established by religious groups
the State to safeguard health, morals, peace, or mission boards, but Congress may increase
education, order, safety and general welfare of the required Filipino equity participation.
people. - Control and Administration
Persons who desire to engage in the learned Vested in Filipino citizen..
professions requiring scientific or technical - Alien Schools
knowledge may be required to take an examination No educational institution shall be established
as a prerequisite to engaging in their chosen careers. exclusively for aliens, and no group of aliens shall
Requirement that a school must first obtain compromise more than 1/3 of the enrolment in any
government authorization before operating is based school.
on the State policy that educational programs and/or Exception: schools for foreign diplomatic
operations shall be of good quality and shall satisfy personnel and their dependents and for other foreign
minimum standards. temporary residents.
- Tax Exemptions
Constitutional Mandate for the State to all revenues and assets
76
Nachura Notes – Constitutional Law
all grants, endowments, donations and readmission or re-enrollment to students who had
contributions led or participated in student mass actions against
of non-stock, non-profit educational institution the school. The students do not shed their
used directly, actually and exclusively for constitutionally-protected rights of free expression
educational purposes at the school games.
The only valid grounds to deny readmission of
Highest Budgetary Priority to Education students are:
- merely directory 1. academic deficiency and
2. breach of the school’s reasonable rules of
Academic Freedom conduct
enjoyed in all institutions of higher learning Minimum standards of procedural due process
colleges, publicly or privately-owned must be satisfied:
Two Views: 1. student must be informed in writing of the
1. from the standpoint if the educational institution nature and cause of the accusation against them
determine: 2. right to answer the charges against them, with
1. who may teach the assistance of counsel, if desired
2. what may be taught 3. informed of the evidence against them
3. how it shall be taught 4. right to adduce evidence in their own behalf
4. who may be admitted to study 5. evidence must be duly considered by the
investigating committee or official designated by
Freedom to determine whom to admit includes
the school authorities to hear and decide the case.
the right to determine whom to exclude or expel, as
well as to impose lesser sanctions such as It is within the sound discretion of the university
suspension. to determine whether a student may be conferred
graduation honors, considering that the student had
Right to freely choose their field of study
incurred a failing grade in an earlier course she took
subject to existing curricula, and to continue their
in school.
course therein up to graduation, such right is subject
to established academic and disciplinary standards Profession Regulation Commission cannot
laid down by the academic institution. interfere with the conduct of review that review
2. from the standpoint of the members of the schools and centers believe would best enable their
academe enrollees to meet the standards required before
becoming full-pledged public accountants.
freedom of the teacher or research worker in
higher institutions of learning to investigate and Prerogative of the school to provide standards
discuss the problems of his science and to express for its teachers and to determine whether or not
conclusions, whether through publication or in the these standards have been met is in accordance with
instruction of students, without interference from academic freedom and constitutional autonomy
political or ecclesiastical authority, or from the which give educational institutions the right to
administrative officials of the institution in which choose who should teach.
he is employed, unless the methods are found to be Academic freedom was never meant to be
incompetent or contrary to professional ethics. unbridled license; it is a privilege which assumes
Widest latitude to innovate and experiment on the correlative duty to exercise it responsibly.
the method of teaching which is most fitting to his Conferment of an honor or distinction was
students, subject only to the rules and policies of the obtained through fraud, the University has the right
University. to revoke or withdraw the honor or distinction
Limitations conferred. The right does not terminate upon the
1. dominant police power of the State graduation of the student.
2. social interests of the community
Language
“Termination of Contract” theory in Alcauz can
no longer be used as a valid ground to deny National language Filipino
77
Nachura Notes – Constitutional Law
Purpose of communication and instruction No member of the armed forces in the active
Filipino, and until otherwise provided by law, service shall, at any time, be appointed or
English designated in any capacity to any civilian position.
Regional languages auxiliary official Laws on retirement of military officers shall not
languages in the regions and shall serve as ancillary allow extension of their service.
media of instruction The officers and men of the regular force of the
Spanish and Arabic promoted on voluntary armed forces shall be recruited proportionately from
and optional basis all provinces and cities as far as practicable.
Constitution shall be promulgated in Filipino
and English and shall be translated into major National Police Force
regional languages, Arabic and Spanish. The State shall establish and maintain one
police force, which shall be:
XVII. THE FAMILY National in scope and
Civilian in character.
XVII. GENERAL PROVISIONS To be administered and controlled by a national
police commission.
Flag Authority of local executives over the police
Red, white and blue units in their jurisdiction shall be provided by law.
A sun and 3 stars RA 6975 established the PNP under a
As consecrated and honored by the people and reorganized department, DILG.
recognized by law.
Mass Media and Advertising Industry
Name Mass Media
Congress may, by law, adopt: Ownership limited to CITIZENS or
a new name for the country CORPORATIONS WHOLLY-OWNED and
a national anthem or MANAGED by such citizens.
a national seal Congress shall regulate or prohibit monopolies
which shall be truly reflective and symbolic of in commercial mass media.
the ideals, history, and traditions of the people. Advertising Industry
Law shall take effect only upon its ratification Only FILIPINO CITIZENS or
by the people in a national referendum. CORPORATIONS or ASSOCIATIONS at least
70% FILIPINO-OWNED shall be allowed to
Armed Forces of the Philippines engage in the advertising industry.
Composed of a citizen armed force ALL EXECUTIVES and MANAGING
Which shall undergo military training OFFICERS of such entities must be CITIZENS of
And serve, as may be provided by law. the Philippines.
Advertising entities affected shall have 5 years
All members of the armed forces shall take an from the ratification of the Constitution to comply
oath or affirmation to uphold and defend the on GRADUATED and PROPORTIONATE basis
Constitution with the minimum Filipino ownership.
Professionalism and Adequate Remuneration
XIX. TRANSITORY PROVISION
shall be a prime concern of the State.
Insulated from partisan politics.
Elections
No member of the military shall engage directly
- First elections of members of Congress 2nd
or indirectly in any partisan political activity except
Monday of May 1987
to vote.
- First local elections to be determined by
President
78
Nachura Notes – Constitutional Law
stock. Until the main sequestration case is resolved, - A mere allegation in the anti-graft complaint
the right to vote the sequestered shares of stocks that the accused is a relative of then President
depends on the 2-tiered tests: Marcos will not suffice to enable the PCGG to take
1. whether there is prima facie evidence showing cognizance of the case. There must, in addition, be a
that the said shares are ill-gotten and thus belong to showing that the accused has unlawfully
the State accumulated wealth by virtue of such close relation
2. whether there is an immediate danger of with the former President.
dissipation thus necessitating their continued - Fact of sequestration alone did not automatically
sequestration and voting by PCGG while the main oust the RTC of its jurisdiction.
issue pends with the Sandiganbayan. - In order that the Sandiganbayan’s exclusive
Does not apply in cases involving funds of jurisdiction may be invoked, the PCGG must be a
“public character” party to the suit.
The Government is granted the authority to vote - The Office of the Solicitor General may validly
said shares: call the PCGG for assistance and ask it to respond
1. where government shares are taken over by to a motion for a bill of particulars, considering that
private persons or entities who/which registered PCGG has the complete records of the case and,
them in their own names and being in charge of the investigation, is more
2. where the capitalization or shares that were knowledgeable and better informed.
acquired by public funds somehow landed on
private hands. GENERAL PRINCIPLES
- Sandiganbayan can review the validity of
sequestration orders. Principles of Local Autonomy
- Absence of express prohibition, the rule on Constitutional Provisions
amicable settlement or compromise agreements in The State shall ensure the local autonomy of
the Civil Code is applicable to PCGG cases before local governments
the Sandiganbayan. The territorial and political subdivisions shall
- PCGG’s authority to enter into compromise enjoy local autonomy
agreements involving ill-gotten wealth and to grant The principle of local autonomy under the 1987
immunity in civil and criminal cases, without need Constitution simply means
of prior Congressional approval is sustained. “DECENTRALIZATION”.
- Penal violations to fall within the jurisdiction of It does not make the local government sovereign
the PCGG: within the state or an imperium in iperio.
1) it must relate to ill-gotten wealth; Autonomy is either:
2) of the late President Marcos, his immediate 1. decentralization of administration
family, relatives, subordinates, and close associates; no valid constitutional challenge
3) who took advantage of their public office and/or delegation of administrative powers to broaden
power, authority, influence, connections or the base of governmental power.
relationships. 2. decentralization of power
- Those not fulfilling the above elements are not
abdication by the national government of
within the authority of the PCGG but within the
political power in favor of the local government
jurisdiction of the Ombudsman and other duly
authorized investigating agencies. Congress retains control over the LGUs
- The invalid preliminary investigation did not although significantly reduced under the
impair the validity of the criminal information or Constitution. National legislature is still the
otherwise render them defective; much less did not principal of LGUs which cannot defy its will or
affect the jurisdiction of the Court. modify or violate it.
The only effect is the imposition on the latter of Power to tax of LGUs which cannot be
the obligation to suspend the proceedings and to withdrawn by mere statute.
require the holding of preliminary investigation.
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Any form of autonomy granted to local Law creating or authorizing the creation or
governments will necessarily be limited and incorporation of a municipal corporation.
confined within the extent allowed by the central 2. Corporate name
authority. Sanggunian Panlalawigan may change the name
Exercise of local autonomy remains subject to: of component cities or municipalities:
1. power of control by Congress and 1. consultation with Philippine Historical Institute
2. general supervision by the President 2. effective upon ratification in a plebiscite
Scope of President’s supervisory powers: 3. Inhabitants
President can only interfere in the affairs and People residing in the territory.
activities of a local government unit if he finds that 4. Territory
the latter had acted contrary to law; Land mass where the inhabitants reside
Cannot interfere in local affairs as long as the Together with external and internal waters and
concerned local government unit acts within the the airspace above.
parameters of the law and the Constitution;
Otherwise, violates the principle of local Dual Nature and Functions
autonomy and the doctrine of separation of powers. Exercise powers as a political subdivision of the
Liga ng mga Barangay is not subject to the National Government and
control by the Chief Executive or his alter ego. As a corporate entity representing the
inhabitants of the territory.
Corporation 1. Public or Governmental – acts as agents of the
Artificial being created by operation of law, State, for the government of the territory and the
having the right of succession and the powers, inhabitants.
attributes and properties expressly authorized by 2. Private or Proprietary – acts as agents of the
law or incident to its existence. community in the administration of local affairs.
Acts as a separate entity for its own purposes and
Classification not as a subdivision of the state.
1. Public: organized for the government of a
portion of a state. Roles of Municipal Corporations in the
2. Private: formed for some private purpose. Philippines
3. Quasi-Public: private corporation that renders The territorial and political subdivisions of the
public service or supplies public wants. Philippines are the PROVINCES, CITIES,
MUNICIPALITIES and BARANGAYS. There
Criterion to determine whether corporation is shall be AUTONOMOUS REGIONS in MUSLIM
public MINDANAO and the CORDILLERAS.
Relationship of the corporation to the State; if it
is created by the State as its own agency to help the Provinces
State in carrying out its governmental function then Cluster of municipalities or municipalities and
it is public. Otherwise, it is private. component cities.
Dynamic mechanism for developmental
Classes of public corporations processes and effective governance of LGUs within
1. Quasi-corporation – created by the state for a its territorial jurisdiction.
limited purpose. City
2. Municipal Corporation – body politic and More urbanized and developed barangays
corporate constituted by the incorporation of the General purpose government for the
inhabitants for the purpose of local government. coordination and delivery of basic, regular and
direct services.
Municipal Corporation Effective governance of the inhabitants within
Elements: its jurisdiction.
1. Legal creation or incorporation
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Nachura Notes – Constitutional Law
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Nachura Notes – Constitutional Law
whether the municipality may be validly converted ELECTION and QUALIFICATION of its Chief
into a city) Executive and a majority of the members of its
For conversion to cities, the municipality’s sangguinan.
income should not include the IRA. UNLESS some other time is fixed therefore by
2. Population the law or ordinance creating it.
Total number of inhabitants within the territorial
jurisdiction of the LGU concerned. Division and Merger, Abolition of LGUs
Required minimum population: Division and Merger
1. Barangay: 2,000 inhabitants; except in Metro comply with same requirements, provided that
Manila and other metropolitan political subdivisions such division shall not reduce the income,
or in highly urbanized cities where the requirement population or land area of the local government
is 5,000 inhabitants unit/s concerned to less than the minimum
2. Municipality: 25,000 requirements prescribed
3. City: 150,000 provided, further, that the income classification
4. Highly Urbanized City: 200,000 of the original local government unit/s shall not fall
5. Province: 250,000 below its current income classification prior to the
3. Land Area division.
Contiguous, unless it comprises 2 or more Abolition
islands or is separated by a LGU independent of the LGU may be abolished when its income,
others population or land area has been irreversibly
Properly identified by metes and bounds with reduced to less than the minimum standards.
technical descriptions Law or ordinance abolishing a LGU shall
Sufficient to provide for such basic services and specify the province, city, municipality or barangay
facilities to meet the requirements of its populace. with which the local government unit sought to be
Area Requirements: abolished will be incorporated or merged.
1. Municipality: 50 sq. kms.
2. City: 100 sq. kms. De Facto Municipal Corporation
3. Province: 2,000 sq. kms. Requisites:
Compliance with the foregoing indicators shall 1. Valid law authorizing incorporation
be attested to by the Department of Finance, the 2. Attempt in good faith to organize under it
National Statistics Office and the Lands 3. Colorable compliance with the law
Management Bureau of the Department of 4. Assumption of corporate powers
Environment and Natural Resources. Not de facto municipal corporations, because
Requirement that the territory of the newly- there was no law authorizing incorporation.
created local government units be identified by
metes and bounds is intended to provide the means Attack Against Invalidity of Incorporation
by which the area of the local government unit may No collateral attack
be reasonably ascertained. Inquiry into the legal existence of a municipal
Territorial jurisdiction of the newly created city corporation is reserved to the state in a proceeding
may be reasonably ascertained – by referring to for quo warranto or other direct proceeding.
Rule is applicable only when the municipal
common boundaries with neighboring
municipalities – then the legislative intent has been corporation is at least a de facto municipal
sufficiently served. corporation
Other constitutional limitations: Bill of Rights
The Local Government Code
Effectivity: January 1, 1992; after its complete
Beginning of Corporate Existence
publication in at least 1 newspaper of general
circulation.
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Nachura Notes – Constitutional Law
resources and assets for productive, developmental 3. local revenue is generated only from sources
or proprietary powers and functions and thereby expressly authorized by law or ordinance and
ensure their development into self-reliant collection shall at all times be acknowledged
communities and active participants in the properly
attainment of national goals. 4. all monies officially received by a local
LGUs have no power to tax instrumentalities of government officer in any capacity shall be
the National Government, e.g. PAGCOR accounted for as local funds unless otherwise
Fundamental Principles governing the exercise provided by law
of taxing and other revenue-raising powers of LGUs 5. trust funds in the local treasury shall not be
1. Taxation shall be uniform in all LGUs paid out except in fulfillment of the purpose for
2. Taxes, fees, charges and other impositions shall which the trust was created or the funds received
be 6. every officer of the LGU whose duties permit or
equitable based as far as practicable on the require the possession or custody of local funds
taxpayer’s ability to pay; shall be properly bonded and such officer shall be
levied and collected only for public purpose; accountable and responsible for said funds and for
not unjust, excessive, oppressive or safekeeping
confiscatory; and 7. local governments shall formulate sound
financial plans and the local budgets shall be
not contrary to law, public policy, national
based on functions, activities and projects in terms
economic policy or in restrain of trade;
of expected results
3. collection of taxes, fees, charges and other
8. local budget plans and goals shall, as far as
impositions shall not be left to any private person
practicable, be harmonized with national
4. revenue collected shall inure solely to the
development plans, goals, strategies in order to
benefit and be subject to the disposition by the
optimize the utilization of resources and to avoid
LGU, unless specifically provided herein
duplication in the use of fiscal and physical
5. each LGU shall evolve a progressive system of
resources
taxation.
9. local budgets shall operationalize approved
Exercise by LGU of the power to tax is ordained local development plans
by the Constitution; only guidelines and limitations 10. LGUs shall ensure that theirs respective budget
that may be established by Congress can define and incorporate the requirements of their component
limits such power of local governments. units and provide for equitable allocation of
Secretary of Justice can review the resources among those
constitutionality or legality of tax ordinance – and if 11. national planning shall be based on local
warranted, revoke it on either grounds planning
Exemption may be withdrawn at the pleasure of 12. fiscal responsibility shall be shared by all those
the taxing authority. exercising authority over financial affairs,
Exception: where the exemption was granted to transactions and operations of the LGUs
private parties based on material consideration of a 13. the LGU shall endeavor to have a balanced
mutual nature, which then becomes contractual and budget in each fiscal year of operation
is covered by the non-impairment clause of the
Constitution. Eminent Domain
Fundamental Principles governing financial - Through chief executive and acting pursuant to
affairs, transactions and operations of the local an ordinance
government: - For public purpose/use/welfare, for the benefit
1. no money shall be paid out of the local treasury of the poor and landless
EXCEPT in pursuance of appropriation ordinance - Payment of just compensation
or law - Valid and definite offer has been previously
2. local government funds and monies shall be made to the owners and such offer was not accepted
spent solely for public purpose - LGU may immediately take possession:
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Nachura Notes – Constitutional Law
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Nachura Notes – Constitutional Law
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Nachura Notes – Constitutional Law
Ultra Vires Contracts: contracts entered into Attaches even if the road does not belong to the
without compliance with first and third requisites LGU, provided that the City exercises control or
ultra vires and void. supervision over said road.
Cannot be ratified or validated. 2. Article 2180, CC: The State is responsible when
Ratification of defective municipal contracts is it acts through special agents
possible only when there is non-compliance with 3. Article 34, CC: The LGU is subsidiarily liable
the 2nd and/or 4th requisite. for damages suffered by a person by reason of the
Does not provide that the absence of an FAILURE or REFUSAL of a member of the
appropriation ordinance ipso facto makes a contract POLICE FORCE to render aid and protection in
entered into by a LGU null and void. Public funds case of danger to life and property.
may be disbursed not only pursuant to an
appropriation law, but also pursuant of other Liability for Tort – decisions PRIOR to LGC
specific statutory authority. 1. if a LGU is engaged in GOVERNMENTAL
Police power prevails over non-impairment functions, it is NOT liable
clause. 2. if a LGU is engaged in proprietary function, it is
Breach of contractual obligations – city liable liable
for damages City is liable for the tortuous acts of its
Authority to negotiate and secure grants employees under the principle of respondeat
Local chief executive upon authority of the superior
sangguinian 3. Liability for illegal dismissal of employee
Negotiate and secure financial grants or Absent proof of malice or bad faith which
donations in kind attended the illegal dismissal – cannot be held
In support of the basic services and facilities in personally accountable
Section 17 Municipal corporation, whether or not included
From local and foreign assistance agencies in the complaint for recovery of back salaries due to
Without necessity of securing clearance or wrongful removal from office is liable
approval from any department, agency, or office of 4. Local officials may be held personally liable
the national government or from any higher LGU Acted beyond the scope of their authority and
Provided, projects financed by such grant or with bad faith
assistance with national security implications shall Must be sued in their personal capacity
be approved by the national agency concerned. When they act maliciously and wantonly and
injure individuals rather than discharged a public
To exercise such other powers as are granted to duty, they are personally liable.
corporations, subject to limitations provided in the
Code and other laws Liability for Violation of the Law
1. closed part of a municipal street without
III. MUNICIPAL LIABILITY indemnification liable for damages
2. non-payment of minimum wage to employees
Rule: LGUs and their officials are NOT exempt 3. refusal to abide by the TRO
from liability for DEATH or INJURY to persons or
DAMAGE to property Liability for Contracts
1. Rule: A municipal corporation, like an ordinary
Specific Provisions Making LGUs liable: person, is liable on a contract it enters into,
1. Article 2189, CC: The LGU is liable in damages provided that the contract is intra vires.
for death or injuries suffered by reason of the If the contract is utra vires, the municipal
DEFECTIVE CONDITION of roads, streets, corporation is not liable.
bridges, public buildings and other public works. 2. a private indivisual who deals with a municipal
corporation is imputed constructive knowledge of
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Nachura Notes – Constitutional Law
third consecutive term. Any subsequent election, 3. appointed by CITY or MUNICIPAL MAYOR
like a recall election, is no longer covered by the sangguniang barangay upon recommendation of
prohibition: the sangguniang barangay concerned
1. subsequent election like a recall election is no
longer an immediate re-election after three EXCEPT for the sangguniang barangay, only
consecutive terms the nominee of the political party under which the
2. intervening period constitutes an involuntary sanggunian member concerned had been elected
interruption in the continuity of service and whose elevation to the position next higher in
rank created the last vacancy in the sanggunian shall
Rules on Succession be appointed.
- Permanent vacancies: A nomination and a certificate of membership
1. fills a higher vacant office of the appointee from the highest official of the
2. refuses to assume office political concerned are conditions sine qua non.
3. fails to qualify In case the permanent vacancy is caused by a
4. dies sanggunian member who does not beling in any
5. removed from office political party, the local chief executive shall upon
6. voluntarily resigns recommendation of the sangguinian concerned,
7. permanently incapacitated to discharge the shall appoint a qualified person to fill the vacancy.
functions Reason: to maintain party representation
Recommendation by the sanggunian takes the
a. Governor/Mayor Vice-Governor/Vice-Mayor place of nomination by the political party (since
b. Vice-Governor/Vice-Mayor highest ranking members of the sanggunian barangay are prohibited
sanggunian member OR 2nd highest ranking, and to have party affiliation) and is considered condition
subsequent vacancies shall be filled automatically sine qua non.
by the other sanggunian members according to their Vacancy in the representation of the youth and
ranking
the barangay in the sanggunian filled
Ranking in the sanggunian member shall be automatically by the official next in rank of the
determined on the basis of the proportion of votes organization concerned.
obtained by each winning candidate to the total
Member of the Sangguniang Kabataan who
number of registered voters in each district in the
obtained the next highest number of votes shall
immediately preceding election.
succeed as Chairman if the latter:
Mode of succession for permanent vacancies 1. refuses to assume office
may also be applied in cases of temporary 2. fails to qualify
vacancies. 3. convicted of a crime
c. Punong Barangay highest ranking 4. voluntarily resigns
sanggunian barangay member OR 2nd highest 5. dies
Tie between or among the highest ranking 6. permanently incapacitated
sanggunian members shall be resolved by drawing 7. removed from office
lots. 8. has been absent without leave for more than 3
d. Sanggunian member where automatic consecutive months
succession do not apply: * ineligibility is not one of the causes enumerated in
1. appointment by PRESIDENT, through LGC
Executive Secretary in the case of Sangguniang Temporary Vacancies
Panlalawigan or Panlungsod of highly urbanized Governor/City or Muncipal Mayor/Punong
cities and independent component cities Barangay is temporarily incapacitated, due to but
2. apponted by GOVERNOR sangguniang not limited to:
panlungsod of component cities and the 1. leave of absence
sangguniang bayan 2. travel abroad
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Resignation
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9. Civil Registrar
Administrative Appeal – w/in 30 days from receipt 10. Administrator
1. to Sangguniang Panlalawigan component 11. Legal Officer
cities’ sangguniang panlungsod and sangguniang 12. Agriculturist
bayan 13. Social Welfare and Development Officer
2. to OP Sangguniang Panlalawigan and 14. Environment and Natural Resources Officer
Sangguniang Panlungsod of highly urbanized cities 15. Architect
and independent component cities 16. Information Officer
- decisions of OP – final and executory 17. Cooperatives Officer
- administrative appeal to OP is possible; only 18. Population Officer
means that administrative appeal will not prevent 19. Veterinarian
enforcement of the decision 20. General Services Officer
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Nachura Notes – Constitutional Law
d. Involving a component city or municipality on invoke their power of initiative, giving notice to the
the one hand and a highly urbanized city on the sanggunian concerned.
other, or 2 or more highly urbanized cities – jointly 3. The proposition shall be numbered serially –
referred to the respective sanggunians of the parties starting from Roman Numeral I. Two or more
propositions may be submitted in an initiative. The
2. Sanggunian fails to effect a settlement within 60 COMELEC or designated representative shall
days from the date the dispute was referred to it, it extend assistance in the formulation of the
shall issue a certification. proposition.
3. Dispute shall then be formally tried by the 4. Proponents collect the required number of
sanggunian, which shall decide the issue within 60 signatures within
days from the date of the certification. 90 days in case of provinces and cities
4. within the time and manner prescribed by the 60 days in case of municipalities
ROC, any party may elevate the decision of the 30 days in case of barangays
sanggunian concerned to the proper RTC having From NOTICE
jurisdiction over the area in dispute which shall 5. The petition shall be signed before the election
decide the appeal within 1 year from filing. registrar or his representative, in the presence if the
5. Settlement of boundary dispute between a a representative of a proponent and a representative
municipality and an independent component city in of the sanggunian in a public place in the local
the same province RTC in the province that can government unit.
adjudicate the controversy. 6. Lapse of the period, COMELEC shall certify as
6. The boundaries must be clear for they define the to whether the required the number of signatures
limits of the territorial jurisdiction of the LGU. It has been obtained. Failure to obtain the required
can legitimately exercise powers of government number of signatures. Failure to obtain the required
only within the limits of its territorial jurisdiction. number of signatures defeats the proposition.
Beyond these limits, its acts are ultra vires. 7. If required number is obtained, the COMELEC
shall set a date for the initiative during which the
VI. LOCAL INITIATIVE AND REFERENDUM proposition is submitted to the registered voters for
their approval:
Local Initiative w/in 60 days in case of provinces
It is the legal process whereby the registered w/in 45 days in case of municipalities
voters of a local government unit may directly w/in 30 days in case of barangays
propose, enact or amend any ordinance.
from date of CERTIFICATION by COMELEC.
It may be exercised by all registered voters. The initiative shall be held on the date set, after
which the results shall be certified and proclaimed
Procedure by the COMELEC.
1. Petition filed with the sanggunian proposing the 8. If the proposition is approved by a majority of
adoption, enactment, repeal or amendment of an the votes cast, it shall take effect 15 days after
ordinance certification by the COMELEC.
Not less than 2,000 registered voters in the
region Limitations
Not less than 1,000 registered voters in cases of On Local Initiative
provinces and cities 1. not be exercised more than once a year
Not less than 100 voters in case of 2. extend only to subjects or matters which are
municipalities within the legal powers of the sanggunian to enact
Not less than 50 voters in case of barangays 3. at any time before the initiative is held, the
2. If no favorable action taken, within 30 days sanggunian adopts in toto the proposition presented
from presentation, the proponents through their duly and the local chief executive approves the same, the
authorized and registered representatives, may
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Nachura Notes – Constitutional Law
initiative shall be cancelled. However, those against The Sangguniang Barangay may form brigades
such action may apply for initiative. and create such other positions or offices as may be
deemed necessary to carry out the purposes of the
On the Sanggunian barangay government.
Any proposition or ordinance approved through Punong Barangay, Sangguniang Barangay
an initiative and referendum shall not be repealed, Members and members of the Lupong
modified or amended by the sanggunian w/in 6 Tagapamayapa in each barangay shall be deemed as
months from date of approval. Persons in Authority in their jurisdiction; while
Amended, modified or repealed w/in 3 years by other barangay officials and members who may be
a vote of all its members. designated by law or ordinance and charged with
In case of barangays, the period shall be 18 maintenance, protection and security, and any
months after the approval. barangay members who comes to the aid of persons
in authority shall be deemed agents of persons in
Local Referendum authority.
Legal process whereby the registered voters of Barangay Chairman is a public officer who may
the LGUs may approve, amend or reject any e charged with arbitrary detention.
ordinance enacted by the sanggunian. Barangay Chairman entitled to possess and
The local referendum shall be held under the carry firearms within the territorial jurisdiction of
control and direction of the COMELEC: the barangay.
1. w/in 60 days in case of provinces
2. w/in 45 days in case of municipalities The Barangay Assembly
3. w/in 30 days in case of barangays Composed of:
COMELEC shall certify and proclaim the 1. All persons who are actual residents of the
results of the said referendum. barangay for at least 6 months,
2. 15 years of age or over
Authority of Courts 3. Citizens of the Philippines
Nothing shall preclude the proper courts from 4. Duly registered in the list of barangay assembly
declaring null and void any proposition approved members
pursuant for violation of the Constitution or want of Meet at least 2x a year to hear and discuss the
capacity of the Sanggunian concerned to enact said semestral report to the sangguniang barangay
measure. concerning its activities and finances and problems
affecting the barangay.
VII. LOCAL GOVERNMENT UNITS
Katarungang Pambarangay
The Barangay Lupong Tagapamayapa
Punong barangay as chairman
Chief Officials and Offices 10 to 20 members
Constituted every 3 years
There shall be in each barangay:
1. PUNONG BARANGAY Powers of the Lupon
2. 7 SANGGUNIANG BARANGAY MEMBERS 1. Exercise administrative supervision over the
3. The SANGGUNIANG KABATAAN conciliation panels
CHAIRMAN 2. Meet regularly once a month to provide a forum
4. BARANGAY SECRETARY for exchange of ideas among its members and the
5. BARANGAY TREASURER public of matters relevant to the amicable settlement
6. LUPONG TAGAPAMAYAPA of disputes, and to enable various conciliation panel
members to share with one another their
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Nachura Notes – Constitutional Law
observations and experiences in effecting speedy There shall be an organization of all the
resolution of disputes prederasyn ng mga sangguniang kabataan:
3. Exercise such other powers and perform such 1. in municipalities pambayang pederasyon
other duties and functions as may be prescribed by 2. in cities panlungsod ng pederasyon
law or ordinance 3. in provinces panlalawigang pederasyon
4. special metropolitan political subdivision
Pangkat ng Tagapagkasundo pangmetropolitang pederasyon
Conciliation panel or Pangkat ng 5. on national level pambansang pederasyon
Tagapagkasundo shall be constituted for each
dispute brought before the lupon. Leagues of Local Government Units/Officials
Consists of 3 members - Liga ng mga Barangay
Chosen by the parties to the dispute Organization of all the barangays for the
From list of members of the lupon primary purpose of determining the representation
Should the parties fail to agree on the pangkat of the Liga in the sanggunians
membership, the same shall be determined by lots And for ventilating, articulating and
drawn by the lupon chairman crystallizing issues affecting barangay government
administration and securing, through proper and
Subject Matter of Amicable Settlement legal means, solutions.
1. procedure
Liga is empowered to create such other
2. conciliation
positions as may be deemed necessary.
3. arbitration
4. effects of settlement and arbitration award
League of Municipalities
Organized for the primary purpose of
Sangguniang Kabataan
ventilating, articulating and crystallizing issues
- Creation: There shall be in every barangay a
affecting municipal government administration, and
Sangguniang Kabataan
securing through proper and legal means, solutions.
1. a Chairman
2. 7 Members
XII. ELECTION CONTESTS
3. a secretary
4. a treasurer
Jurisdiction over Election Contests
- An official who, during his term of office, shall
have passed the age of 21 shall be allowed to serve Original and Exclusive
the remaining portion of the term for which he was 1. President/VP SC
elected. 2. Senator Senate ET
3. Representative HRET
Katipunan ng Kabataan 4. Regional/Provincial/City COMELEC
Shall be composed of: 5. Municipal RTC
1. all citizens of the Philippines actually residing 6. Barangay MTC/MeTC
in the barangay for at least 6 months
2. who are 15 but not more than 21 years of age Appellate
3. duly registered in the list of the sangguniang Decision of RTC/MTC/MeTC = exclusively to
kabataan or in the official barangay list in the COMELEC, whose decision shall be final,
custody of the barangay secretary. executory and unappealable.
It shall meet once every 3 month, or at the call Election Contests for Municipal Offices:
of the sangguniang kabataan chairman, or upon o Filed with RTC shall be decided expeditiously.
written petition of at least 1/20 of its members. o Decision may be appealed to COMELEC w/in 5
days from promulgation or receipt of copy by the
Pederasyon ng mga Sangguniang Kabataan aggrieved party.
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Nachura Notes – Constitutional Law
o COMELEC shall decide appeal within 60 days COMELEC cannot simply close its eyes to the
after it is submitted for decision, but not later than 6 illegality of the ballots, even if the protestant
months after the filing of the appeal, which decision omitted to raise the ground in his protest.
shall be final, executory and unappealable. Handwriting even without the use of experts;
o MR is a prohibited pleading. being an internal matter.
o COMELEC cannot deprive RTC of its Order regarding the revision of ballots is an
competence to order EXECUTION of its decision interlocutory order requires a party to perform
PENDING APPEAL, being a judicial prerogative certain acts leading to the final adjudication of the
and there being no law disauthorizing the same. case.
o In the exercise of its exclusive appellate General Rule: The filing of an election protest
jurisdiction, COMELEC has the power to issue or quo warranto precludes the subsequent filing of a
writs of prohibition, mandamus or certiorari. pre-proclamation controversy or amounts to an
In the absence of any express provision, RTC, a abandonment of one earlier filed, depriving the
court of general jurisdiction, has jurisdiction over COMELEC of the authority to inquire into and pass
controversies involving election of members of the upon the title of the protestee or the validity of the
Sangguniang Kabataan. proclamation.
Decision in appealed cases involving elective o Exceptions:
municipal and barangay officials raised to SC via 1. Board of Canvassers was improperly
SCA for certiorari on the ground that COMELEC’s constituted.
factual finding is marred by grave abuse of 2. Quo Warranto is not the proper remedy.
discretion. 3. What was filed was not really a petition for quo
Review of a decision of the Electoral Tribunal is warranto or an election protest but a petition to
possible only in the exercise of supervisory or annul a proclamation
extraordinary jurisdiction, and only upon showing 4. filing of an election contest was expressly made
that the Tribunal’s error results from whimsical, without prejudice to the pre-proclamation
capricious, unwarranted, arbitrary or despotic controversy or was made in ad cautelam
exercise of power. 5. proclamation was null and void (in which case
Purposes of election contests cognizable by the pre-proclamation case is not rendered moot)
Electoral Tribunal HRET rules of procedure general denial does not amount to an admission
prevail over provisions of the Omnibus Election of the material allegations in the protest.
Code Failure to commence the revision of ballots in
the counter-protested precincts’ is deemed a waiver
Actions which may be Filed of his counter-protest.
1. Election Protest Omissions are merely administrative lapses,
2. Quo Warranto error to nullify election results in the absence of
clear showing of fraud.
Election Protest 3. w/in 10 days from proclamation of the results of
Requisites: the election
1. filed by any candidate who has filed a certificate period for filing election protest is suspended
of candidacy and has been vote upon for the same while pre-proclamation case is pending.
office.
After 5 days from Proclamation files appeal
2. on grounds of fraud, terrorism, irregularities or
illegal acts committed before, during or after casting in pre-proclamation case only 5 days left to file
and counting of votes election protest.
rights of contending parties must yield to the far COMELEC may not entertain a counter-protest
greater interest of the citizens in upholding the filed beyond the reglementary period to file the
sanctity of the ballot. same
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Nachura Notes – Constitutional Law
Petition or protest contesting the election of a honest belief that the candidate was then qualified
barangay official should be decided by the to be the person to whom they would entrust the
MTC/MeTC w/in 15 dyas from filing. exercise of the power s of government.
2. Appointive Office
Payment of Docket Fees - Issue is the legality of the appointment
o Pay docket fee of )300 - The court determined who of the parties has
o Additional docket fees for damages legal title to the office
o Failure to pay, protest should be dismissed
Execution Pending Appeal
Requirement for Certificate of Absence of TC may grant a motion for execution pending
Forum Shopping appeal, because the mere filing of an appeal does
not divest the trial court of its jurisdiction.
Death of Protestant Since it had jurisdiction to act on the motion at
o Does not extinguish election protest. the time it was filed, that jurisdiction continued
o Imbued with public interest – involves not only until the matter was resolved, and was not lost by
adjudication of the private interest of the rival the subsequent action of the opposing party.
candidates but also the paramount need of Rationale: to give as much recognition to the
dispelling once and for all the uncertainty that worth of the trial judge’s decision as that which is
beclouds the real choice of the electorate with initially ascribed by law to the proclamation of the
respect to who shall discharge the prerogatives of Board of Canvassers,
the office. To prevent the “grab the proclamation, prolong
o If persons not real parties in interest in the the protest” techniques.
action could be allowed to intervene, proceedings Factors:
will be unnecessarily complicated, expensive and o Public interest involved or will of the electorate
interminable. o Shortness of the remaining portion of the term
o Length of time that the election contest has been
Quo Warranto pending
Requisites: Reasons allowing for immediate execution must
1. filed by any registered voter in the constituency be of such urgency as to outweigh the injury or
2. grounds of ineligibility or disloyalty to the damage of the losing party should such party secure
Republic a reversal of judgment on appeal.
3. w/in 10 days from proclamation Filed before expiration of the period for appeal.
Distinction between Quo Warranto in elective and Award of Damages
appointive office Actual and compensatory damages may be
1. Elective Office awarded in election contests and quo warranto
- Issue is the eligibility of the officer-elect proceedings
- Court/tribunal cannot declare protestant or the
Intent of the legislators to do away with the
candidate who obtained the 2nd highest number of
provisions indemnifying the victorious party for
votes as having been elected.
expenses incurred in the election contest, in the
There must be a final judgment of absence of a wrongful act or omission clearly
disqualification before the election in order that the attributable to the losing party.
votes of the disqualified candidate can be
Question for damages remain ripe for
considered “stray.”
adjudication notwithstanding that the appeal from a
In voting for a candidate who has not been decision of the election case has already been moot
disqualified by final judgment during election day,
the people voted for him bona fide, without any Contest
intention to misapply their franchise and in the
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Nachura Notes – Constitutional Law
Involving title or claim of title to an elective o Not necessary that deadly weapon be seized
office, made before or after proclamation of the from the accused.
winner, whether or not the contestant is claiming 6. Transfer or detail of government
the office in dispute. official/employee without COMELEC approval
o Exception: not penalized, if done to promote
Election, Returns and Qualifications efficiency.
Collectively, all matters affecting the validity of o To prove violation:
the contestee’s title to the position a. Fact of transfer or detail within the election
period as fixed by the COMELEC
Election b. Transfer or detail was made without prior
Conduct of the polls approval of the COMELEC
Includes
1. listing of votes Good Faith is not a defense
2. holding of election campaign o Generally, mala prohibita
3. casting of votes o Proof of criminal intent is not necessary
4. counting of votes o Good faith, ignorance, or lack of malice is not a
defense
Returns
Includes:
1. canvass of returns Jurisdiction over Election Offenses
2. proclamation of winners Investigation and prosecution – COMELEC has
3. questions concerning composition of Board of exclusive jurisdiction.
Canvassers May validly delegate to Provincial Prosecutor.
4. authenticity of elections returns It is not the duty of the COMELEC to gather
proof in support of a complaint.
Qualifications Trial and Decision – RTC has exclusive
may be raised in quo-warranto proceeding jurisdiction to try and decide any criminal actions or
against proclaimed winner proceedings for violation of election laws.
The MTC and MeTC, by way of exception,
XIII. ELECTION OFFENSES exercises jurisdiction only over offenses relating to
failure to register or to vote.
Prohibited Acts
1. Vote-buying and vote-selling Preferential Disposition of Election Offenses
o Distribution of yosi (People vs. Ferrer) Investigation and prosecution of election
2. Wagering upon the result of the elections offenses shall be given priority by COMELEC.
o Bet or wager forfeited to Government
Investigating officer shall resolve the case w/in
3. Threats, intimidation, terrorism, use of 5 days from submission.
fraudulent device or other forms of coercion
Courts shall give preference to election offenses
4. Appointment of new employee
over all other cases.
o Exception:
o Exception: writ of HC
a. In case of urgent need
Cases shall be decided w/in 30 days from
b. w/ notice given to COMELEC
submission.
c. w/in 3 days from appointment
o Includes creation of new positions, promotion or
Prescription for election offenses
granting of salary increase.
o 5 years from date of commission
5. Carrying of deadly weapon within a radius of
100 meters from precint
GENERAL PRINCIPLES
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Nachura Notes – Constitutional Law
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Nachura Notes – Constitutional Law
Power to punish contempt must be expressly there is a need to propound searching questions to
granted to the administrative body; when granted, witnesses who give vague testimonies.
may be exercised only when administrative body is Procedural right which employee must ask for
actually performing quasi-judicial functions since it is not an inherent right.
5. Summary Summary proceedings may be conducted
Power to apply compulsion or force against - Administrative due process dies not necessarily
persons or property to effectuate a legal purpose require the assistance of counsel.
without a judicial warrant to authorize such action - In a request for extradition, the prospective
extradite does not face a clear and present danger of
Quasi-Judicial or Adjudicatory Powers loss of property or employment, but of liberty itself.
- Proceedings partake of the character of judicial He is entitled to the minimum requirements of
proceedings notice and opportunity to be heard.
- Administrative due process - The standard of due process that must be met in
1. right to hearing administrative tribunals allows a certain latitude as
2. tribunal must consider evidence presented long as the element of fairness is not ignored; even
3. decision must have something to support itself in the absence of previous notice, there is no denial
4. evidence must be substantial of due process as long as the parties are given the
5. decision must be based on the evidence adduced opportunity to be heard.
at the hearing or at least contained in the record and - Administrative due process:
disclosed to the parties 1. opportunity to be heard
6. the Board or Judges must act on its or 2. opportunity to seek reconsideration
independence consideration of the facts and the law 3. opportunity to explain one’s side
of the case, and not simply accept the views of a - Substantial evidence: such relevant evidence as
subordinate in arriving at a decision a reasonable mind might accept as adequate to
7. decision must be rendered in such a manner that support a conclusion which is the quantum of proof
the parties to the controversy can know the various necessary to prove a change in an administrative
issues involved and the reasons for the decision case
rendered - “To be heard” does not mean only verbal
- In forfeiture proceeding, where the owner of the agreements in court, one may also be heard through
allegedly prohibited article is known, mere posting pleadings.
of the notice of hearing in the Bulletin Board does
not constitute compliance. Administrative Determinations where Notice and
- Due process demands that the person be duly Hearing are NOT necessary for due process
informed of the charges against him. He cannot be 1. grant of provisional authority for increased rates
convicted of an offense with which he was not or to engage in a particular line of business
charged. 2. summary proceedings of distraint and levy upon
Party be afforded reasonable opportunity to be the property of a delinquent taxpayer
heard and to submit any evidence he may have in 3. cancellation of passport, no abuse of discretion
support of the defense. 4. summary abatement of a nuisance per se which
In administrative proceedings, it means the affects the immediate safety of persons/property
opportunity yto explain one’s side or opportunity to 5. preventive suspension of a public
seek a reconsideration of the action or ruling officer/employee pending investigation of
complained of; a formal or trial-type hearing is not, administrative charges
at all times, necessary.
Requirement of notice and hearing in Right Against Self-Incrimination
termination cases does not connote full adversarial Administrative charge of unexplained wealth
proceedings, as actual adversarial proceedings which may result in forfeiture of the property
become necessary only for clarification or when
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Nachura Notes – Constitutional Law
Questions which may be subject of judicial review Judicial Review is not trial de novo
1. Question of Law It is merely an ascertainment of whether the
2. Question of Fact findings of the administrative agency are consistent
Factual findings of administrative agencies are with law, free from fraud or imposition and
generally conclusive upon the courts if supported by supported by evidence.
substantial evidence, EXCEPT
1. expressly allowed by statute
2. fraud, imposition or mistake other than error of
judgment I. GENERAL PRINCIPLES
3. error in appreciation of the pleadings and in the
interpretation of the documentary evidence Public Office
presented by the parties - Right, authority, duty, created and conferred by
3. Mixed Question of Law and Fact (Brandeis law, by which for a given period, either fixed by
Doctrine of Assimilation of Facts) law or enduring at the pleasure of the creating
What purports to be a finding upon a question of power, an individual is invested with some
fact is so involved with and dependent upon a sovereign power of government to be exercised by
question of law as to be in substance and effect a him for the benefit of the people.
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Nachura Notes – Constitutional Law
2. qualifications are not too specific as to fit a 6. Members of the Constitutional Commission,
particular identifiable person that would deprive Ombudsman and deputies must not have been
appointing authority of discretion in the selection of candidates for any elective position in the election
the appointee immediately preceding their appointments.
7. Members of the Constitutional Commission,
Disqualifications Ombudsman and his deputies are appointed to a
Authority term of 7 years, without reappointment.
Legislature has the right to prescribe 8. Spouse and relatives by consanguinity or
disqualifications in the same manner as it can affinity within the 4th civil degree of the President
prescribe qualifications. shall not during his tenure be appointed:
Limitation: do not violate the Constitution As members of the Constitutional Commission
Disqualification may be because of unfitness for Office of Ombudsman
public office or because the person is rendered Secretaries
ineligible for the office. Undersecretaries
General Disqualifications under the Constitution Chairmen/heads
1. No candidate who lost in an election, shall,
within 1 year after such election, be appointed to III. DE FACTO OFFICERS
any office in the Government.
2. No elective official shall be eligible for - Reputation of being an officer and yet is not a
appointment or designation in any capacity to any good officer in point of law.
public office or position during his tenure. - Acted as an officer for such length of time under
3. No appointive official shall hold any other color of title and under such circumstances of
position in the Government, unless otherwise reputation or acquiescence by the public and public
allowed by law or the primary functions of his authorities as to afford a presumption of
office. election/appointment and induce people to submit to
*ex-officio capacity or invoke his action.
Specific Disqualification under the Constitution
1. President, VP, Cabinet Members and their Legal Effect
deputies and assistants shall not hold any other - Those that affect the public are valid, binding
office or employment during their tenure, UNLESS and with full legal effect.
otherwise provided in the Constitution. - For the protection of the public.
2. No Senator or Member of the HR may hold
any other office or employment in the Government Elements
including GOCC, during his term without forfeiting 1. validly existing public office
his seat. Neither shall he be appointed to any office 2. actual physical possession of said office
which may have been created or the emoluments 3. color of title to the office
increased during the term for which he was elected. a. by reputation/acquiescence
3. Members of the SC and of other courts b. known and valid appointment/election but
established by law shall not be designated to any officer failed to conform to a requirement imposed
agency performing quasi-judicial or administrative by law
functions. c. known appointment or election, void (though
4. No member of the Constitutional unknown to public) because:
Commission shall during his tenure, hold any other i. ineligibility of officer
office or employment. Applies to Ombudsman and ii. want of authority of appointing/electing
his deputies. authority
5. Ombudsman and his deputies shall not be iii. irregularity in appointment/election
qualified to run for office in the election d. known appointment/election pursuant to
immediately succeeding their cessation. unconstitutional law, before law was declared
unconstitutional.
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Nachura Notes – Constitutional Law
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Nachura Notes – Constitutional Law
4) Officers whose appointments are vested in the Appointing authority is in the best position to
President under the Constitution. determine who among the prospective appointees
can effectively discharge the functions of the
Steps in Appointing Process position.
For REGULAR Appointments Final choice of appointing authority should be
1) Nomination by President respected and left undisturbed.
2) Confirmation by COA Commission may not and should not substitute
3) Issuance of the Commission its judgment for that of the appointing authority.
4) Acceptance by the appointee Civil Service Law grants career service officers
preference in promotion under the “next-in-rank”
AD-INTERIM Appointment rule, it is not mandatory, appointing authority
1) Nomination by President should be allowed the choice of men of his
2) Issuance of the Commission confidence provided they are qualified and eligible.
3) Acceptance by the appointee Provincial, city prosecutor and their assistants
4) Confirmation by COA
appointed by President upon recommendation of
Secretary of Justice (mere advise).
DO NOT require Confirmation
1) Appointment by Appointing Authority Discretion of appointing authority choice of
2) Issuance of the Commission the person WHO is to be appointed, NATURE and
3) Acceptance by the Appointee CHARACTER of appointment.
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Nachura Notes – Constitutional Law
- Career Executive Service personnel can be - Not involve reduction in rank, status or salary
shifted from one office to another without violating - Management prerogative vested in the CSC, any
their right to security of tenure, because salary and department or agency embraced in Civil Service
status is based on their ranks and not on the - Does not constitute removal without cause
positions to which they are assigned. - Should have definite date and duration.
- Lack of specific duration is tantamount to
Reinstatement floating assignment thus a dimunition in status or
- Has been permanently appointed in the career rank.
service and who has, through no delinquency of
misconduct, been separated may be reinstated to a Reemployment
position in the same level for which he is qualified. - Names of persons who have been appointed
- Acquisition of civil service eligibility is not the permanently to positions in the career service and
sole factor for the reappointment. Other factors who have been SEPARATED as a result of
should be considered: performance, degree of REDUCTION in force and/or
education, work experience, training, seniority and REORGANIZATION, shall be entered in a list
enjoys confidence and trust of the appointing from which selection for reemployment shall be
power. made
- Not subject to application for a writ of - Separated not for a cause but as a result of
mandamus. reorganization separation pay + retirement and
- Issuance of new appointment which is other benefits; in lieu of separation pay, may be
discretionary considered for employment (Proclamation No. 3)
- Exercise of discretionary power cannot be
controlled by the courts, as long as properly V. POWERS AND DUTIES OF PUBLIC
exercised OFFICERS
- Forfeited his right to public office because of
conviction of a crime, but was extended plenary Authority of Public Officers
pardon CANNOT by reason of pardon demand 1. Expressly conferred upon him by the ACT
reinstatement as a matter of right. appointing him
- Exception: 2. Expressly ANNEXED to the office by LAW
1. Sabello vs. DECS – considerations of justice 3. Attached to the office by COMMON LAW as
and equity incidents to it
2. Garcia vs. Chairman, Commission on Audit – 4. Doctrine of Necessary Implication – all powers
person given pardon because he did not truly necessary for the effective exercise of the express
commit the offense; the pardon relives him from all powers
punitive consequences of his criminal act thereby
restoring him to his clean name, good reputation Authority can be exercised only during the term
and unstained character prior to his finding of guilt. when the public officer, is by law, invested with the
rights and duties of the office.
Detail
- Movement of an employee from one agency to Ministerial and Discretionary Powers
another without the issuance of an appointment 1. Ministerial – discharge by officer is imperative
- Allowed only for a limited period of time in the and requires neither judgment nor discretion;
case of employees occupying professional, technical exercise of which may be compelled
and scientific positions 2. Discretionary – imposed by law upon a public
- Temporary in nature officer; officer has the right to decide how and
when the duty shall be performed; mandamus will
Reassignment not lie to compel performance
- Reassigned from one organizational unit to Exception: when mandamus will lie:
another in the same agency 1. GAD
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Nachura Notes – Constitutional Law
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Nachura Notes – Constitutional Law
term of the Members of the Senate and HofRep who and other monetary benefits from the time of his
approved he increase. illegal dismissal up to his reinstatement.
2. Salaries of President and VP shall be fixed by “no work, no pay” not applicable
law and sjall not be decreased during their tenure. Note: Balitaosan vs. Secretary, DECS:
No increase, until after expiration of the incumbent reinstatement was not the result of exoneration but
during which increase was approved. an ACT OF LIBERALITY of the CA, the claim for
3. Salary of members of the Judiciary shall not be back wages was not allowed. Thus the general rule
decreased during their continuance in office; that a public official is not entitled to compensation
income tax is not unconstitutional dimunition. if he has not rendered any service was applied.
4. Additional, double or indirect compensation are No right to back wages if NOT EXONERATED
prohibited. and NOT UNJUSTIFIABLY SUSPENDED
5. Standardization of compensation.
6. Separation pay to career Civil Service Right to additional allowance and benefits
employees who are separated from service not for LGUs may provide additional allowances and
cause but by reason of reorganization. benefits to national government officials assigned or
stationed in their municipality or city.
Preventive Suspension and the Right to Salary Not without limitations.
1. Preventive Suspension pending investigation
2. Preventive Suspension pending appeal Right to Preference in Promotion
Right does not prevail over discretion of
If the penalty imposed is suspension or appointing authority.
dismissal and after review, he is exonerated no
right to compensation during preventive suspension Right to Vacation and Sick Leave
even pending investigation Sec 81, RA 7160 (LGC) – Elective local
It is not enough that he is exonerated; it must be officials shall be entitled to the same leave
shown that suspension is unjustified privileges as those enjoyed by appointive local
Justified if charged with: officials, including the cumulation and
1. dishonesty commutation.
2. oppression Entitled to commutation of all leave credits
3. grave misconduct without limitation and regardless of the period when
4. neglect of duty the credits were earned, provided the claimant was
Gloria vs. Court if Appeals entitled not only in the service as of January 9, 1986.
to reinstatement but also to back wages for the Government employees are not required to work
period of preventive suspension pending appeal. on Saturdays, Sundays and holidays.
Because preventive suspension pending appeal
is actually PUNITIVE. Right to Maternity Leave
Award should not exceed equivalent of 5 years
pay at the rate last received before suspension was Right to Retirement Pay
imposed. Retirement laws are liberally construed in favor
If his conviction is affirmed, the period of his of the retiree.
suspension becomes part of the final penalty of Money value of the terminal leave of a retiring
suspension. government official shall be computed at the
retiree’s highest monthly pay.
Right to back salaries of illegally dismissed Judiciary – extension if satisfied that the career
employees was marked by competence, integrity and
Illegally dismissed government employees who dedication to the public service.
is later ordered reinstated is entitled to back wages A reserved officer who successfully rendered a
total of 10 years continuous active commissioned
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Nachura Notes – Constitutional Law
military service shall not be reverted to inactive 3. law fixing the term is ambiguous one that
service except for cause or upon his own request. fixes the term at the shortest period should be
Covered by compulsory membership in the GSIS. followed
Totalization of service credits is only resorted to 4. both duration of the term of office and the time
when the retiree does not qualify for benefits in of its commencement/termination are fixed by
either or both of the systems. constitutional or statutory provision person
appointed or elected for vacancy shall hold the same
Right to reimbursement for expenses incurred in only for the unexpired portion
due performance of duty 5. only the duration is fixed, no time is fixed for
beginning or end person selected to fill the
Right to be indemnified against any liability which vacancy may serve the full term and not merely the
they may incur in the bona fide discharge of their unexpired balance of the prior incumbent’s term
duties. 6. office is created/officer appointed for the
purpose of performing a single act or
Right to longevity pay accomplishment of a given result office
terminates and the authority ceases with the
VIII. TERMINATION OF OFFICIAL accomplishment of the purposes which called it into
RELATIONSHIP being.
Principle of Hold-Over: public officer is entitled
Modes of Terminating Official Relationship to hold his office until his successor shall have been
1. Expiration of term or tenure duly chosen and shall have qualified. Purpose is to
2. Reaching the age limit prevent hiatus in public service.
3. Resignation Legislative intent of not allowing hold-over
4. Recall must be clearly expressed or at least implied in the
5. Removal legislative enactment, otherwise, it is reasonable to
6. Abandonment assume that the law-making body favors the same.
7. Acceptance of an Incompatible Office
Article 237, RPC which penalizes public officer
8. Abolition of Office
who shall continue to exercise the duties and
9. Prescription of the Right to Office
powers of the office beyond the period provided by
10. Impeachment
law.
11. Death
12. Failure to Assume Elective Office w/in 6 During this period, de jure officer
months from proclamation Where the law fixes a specific sate for the end
13. Conviction of a Crime of the term implied prohibition against hold-over
14. Filing of Certificate of Candidacy
Reaching the age limit
Expiration of term or tenure Compulsory Retirement Age
Courtesy resignation during the EDSA 70 for members of judiciary
Revolution expiration of term; entitled to 65 for other government officers or employees
retirement benefits Special Retirement Laws: RA 1616 – allows
Termination presupposes an overt act optional retirement after an officer has rendered a
committed by a superior officer minimum number of years of government service,
Commencement of Term of Office when availed of by the public officer, will result in
1. statute fixes a period upon qualification the termination of official relationship through
2. no time is fixed by law date of reaching the age limit or retirement.
appointment/election
Resignation
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Nachura Notes – Constitutional Law
Not later than 30 days after the filing of the lure the employee away from his permanent
resolution/petition in the case of position, cannot be done without the employee’s
barangay/city/municipal officials consent, for that would constitute removal from
Not later than 45 days in the case of provincial office.
officials No permanent transfer can take place unless the
Officials sought to be recalled, automatically officer or employee is first removed from the
considered as registered candidate. position held, and then appointed to another
Effectivity of Recall position.
Recall of an elective official shall be effective Some cases on Grounds for Disciplinary Action:
upon the election an proclamation of a successor. 1. Dishonesty – concealment or distortion of truth
If the official sought to be recalled receives the in a matter of fact relevant to one’s office or
highest number of votes confidence in him is connected with the performance of his duty; e.g. use
affirmed and he shall continue in office of fake or spurious civil service eligibility
2. Conduct prejudicial to the best interest of the
Prohibition from Resignation
service
Limitation on Recall 3. Misconduct – transgression of some established
1. any elective official may be subject of a recall and definite rule of action; wrongful intention
election once during his term of office for lack of
Administrative Code of 1987: 1) Unsatisfactory
confidence
conduct and 2) Want of capacity
2. no recall shall take place within one year from
the date of the official’s assumption to office or one Civil Service Law: inefficiency and
year immediately preceding a regular local election incompetence in the performance of official duties
Sangguiniang Kabataan election is not a regular • Poor performance falls within the concept of
election; inefficiency and incompetence
Not barred by barangay election • Inefficiency and incompetence can only be
Approaching local election must be one where determined after the passage of sufficient time,
the position of the official to be recalled is actually hence, the probationary period of 6 months.
contested and to be filled by the electorate Poltical or non-career members of the Foreign
Service is coterminous with that of the appointing
Removal authority or subject to his pleasure
Constitutional Guarantee of Security of Tenure Holding primarily confidential positions
– not removed or suspended except for causes continue in office as long as the confidence in them
provided by law endures; termination is justified on the ground of
Career service officers and employees causes lack of confidence removal: expiration of term
enumerated in law and in accordance with Holding temporary or acting appointments
procedure prescribed may be removed at any time, without necessity of
Removal not for just cause or non-compliance just cause or a valid investigation.
with prescribed procedures reversible,
reinstatement with back salaries and without loss of Procedure in Administrative Case
seniority rights 1. Administrative case against a public official
shall continue despite withdrawal of the complaint
Demotion is tantamount to unlawful removal is
since they do not involve purely private matters but
NO CAUSE is shown or it is NOT PART OF
are impressed with public interest by virtue of the
DISCIPLINARY ACTION
public character of the public office.
Unconsented transfer resulting in demotion in 2. Substantial proof and not clear and convincing
rank or salary is tantamount to removal without just evidence or proof beyond reasonable doubt is
cause. sufficient.
A transfer that results in promotion or demotion, Satisfied when the employer has reasonable
advancement or reduction or a transfer that aims to ground to believe that the employee is responsible
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Nachura Notes – Constitutional Law
for the misconduct and his participation renders him Court may validly order the preventive
unworthy of trust and confidence demanded by his suspension of officer (since removal of office is
position. within the power of the Courts)
Cristobal vs. Melchor: on grounds of equity Focuses on SUBJECTS (entities which possess
Reason: title to public office should not be international personality and with rights and
subject to continued uncertainty; should be obligations recognized under international law)
determined as speedily as possible. as opposed to OBJECTS (which are persons or
Filing of an action for administrative remedy things in respect of which rights are held and
does NOT suspend the period for filing the obligations assumed by the subjects of international
appropriate judicial proceeding (quo warranto); 1 law)
year period runs even during pendency of a motion - Modern – law that deals with the conduct of
for reconsideration. States and international organizations, their
relations with each other and, in certain
Impeachment circumstances, their relations with persons, natural
or juridical.
Death
Renders office vacant. Basis of International Law
1. Law of Nature School
Failure to Assume Elective Office w/in 6 months There is a natural and universal principle of
from proclamation right and wrong, independent of mutual intercourse
Unless failure is for a cause or causes beyond or compact, which can be discovered and
his control recognized by every individual through the use of
his reason and conscience.
Conviction of a Crime Since individuals compose the State whose will
Penalty imposed upon conviction carries with it is but the collective will of the inhabitants, the State
the accessory penalty of disqualification, conviction also becomes bound by the law of nature.
by final judgment automatically terminates official 2. Positivist School
relationship. Binding force of international law is derived
Plenary pardon extinguished the accessory from the agreement of the States to be bound by it.
penalty of disqualification, it will not restore the International law is not a law of subordination
public office to the officer convicted; but of coordination.
He must be given a new appointment. 3. Eclectic or Grotian School
In so far as it conforms to the dictates of right
Filing of Certificate of Candidacy reason, the voluntary law may be said to blend with
Any person holding a public appointive office the natural law and is an expression of it.
or position, In case of conflict, the natural law prevails,
Including active members of the AFP being the more fundamental law.
And officers and employees in GOCCs
Shall be considered ipso facto RESIGNED upon Public International Law distinguished from:
filing of certificate of candidacy.
Applies even to employees of GOCCs without Private International Law
an original charter
Public Private
International International
GENERAL PRINCIPLES Law Law
Nature International Municipal
International Law, defined Remedies International Local Tribunals
- Traditional – branch of public law which Modes
regulates the relations of States and of other entities Parties International Private Persons
which have been granted international personality. Entities
Enforcement International Sheriff/Police
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Nachura Notes – Constitutional Law
Object
Person or thing in respect of which rights are Other Suggested Elements:
held and obligations assumed by the subject. 1. Civilization
It is not directly governed by the rules of 2. Recognition
international law. Act by which a state acknowledges the
Its rights are received, and its responsibilities existence of another state, a government, belligerent
imposed, indirectly through the instrumentality of community and indicates its willingness to deal
an international agency. with the entity as such under international law.
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Nachura Notes – Constitutional Law
1. Political laws are abrogated while municipal a. Protectorate – established at the request of a
laws remains in force weaker state for the protection by a strong power
2. Treaties are discontinued except those dealing b. Suzerainty – result of a concession from a state
with local rights and duties to a former colony that is allowed to be independent
3. All rights of the predecessor state are inherited subject to the retention by the former sovereign of
4. Successor state can assume and reject liabilities certain powers over external affairs of the latter.
in its discretion 3. Neutralized – independence and integrity are
guaranteed by an international treaty on the
Conquered state has no personality in international condition that such states obligates itself never to
law. take up arms against any other state (except in self-
defense) or to enter into an international obligation
Succession of Government as would indirectly involved it in war.
1. Integrity of the State is not affected
2. State continues as the same international person Vatican City and the Holy See
except that its lawful representative is changed Has all the constituent elements of statehood.
Has all the rights of a state.
Consequences of Succession of Government The Holy See is an international person with
1. all rights of the predecessor government are which the Philippines had diplomatic ties until
inherited by the successor 1957.
2. where the new government was organized by
virtue of a constitutional reform duly ratified in a Colonies and Dependencies
plebiscite, all obligations of the predecessor are Colony – dependent political community
likewise assumed consisting of a number of citizens of the same
3. where the new government is established country who migrated to inhabit another country,
through violence, the new government may lawfully but remain subject to the mother state.
reject purely personal political obligations of the Dependency – territory distinct from the country
predecessor but not those obligations contracted by in which the supreme power resides, but belongs
it in the ordinary course of official business rightfully to it, and subject to the laws and
regulations which the sovereign may prescribe.
Classes of States
NOTE: Theoretically, they belong to the parent
1. Independent – freedom to direct and control
state and are without any personality. However, on
foreign relations without restraint from other states
occasions, colonies have been allowed to participate
a. Simple – single central government with power
in their own right to certain international
over internal and external affairs.
undertaking.
b. Composite – 2 or more sovereign states joined
together to constitute one international person
Territories under International Control or
i. Real Union
Supervision
2 or more states are merged under a unified
Non-self-governing territories which have been
authority so that they form a single international
placed under international supervision or control to
person through which they act as one entity.
insure their political, economic, social and
State retains their separate identities. educational advancement.
Respective international personalities are Mandates: former territorial possession of states
extinguished and blended in the new international defeated in World War and placed under control of
person. the League of Nations
ii. Federal Union
Many of these mandates became trust territories
2. Dependent – theoretically a state, but does not
which are placed under the Trusteeship Council of
have full freedom in the direction of its external
the United Nations.
affairs
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131
Nachura Notes – Constitutional Law
State in war or other armed conflict would be a independence of another state or in any other
breach of its obligations under international law, manner inconsistent with the UN Charter.
including WHO Convention. The first use of armed force by a State in
o International organizations are governed by the contravention of the UN Charter is prima facie
PRINCIPLE OF SPECIALTY, that they are evidence of an act of aggression.
invested by the States which create them with Other principles
powers, the limits of which are a function of the 1. No consideration of whatever nature, political,
common interest whose promotion those States economic or military, can justify aggression.
entrust to them. 2. A war of aggression is a crime against
o To accede to the demand of WHO would be international peace which will give rise to
violative of the Principle of Specialty, for such international responsibility.
competence could not be deemed a necessary 3. No territorial acquisition or special advantage
implication of the Constitution. resulting from aggression shall be recognized as
lawful.
Individuals 4. All these are without prejudice to the right of
- Traditionally considered as objects self-determination, freedom and independence of
- Granted a certain degree of international people deprived of such rights, nor the right to these
personality under a number of Agreements: people to struggle to that end and to seek and
1. UN Charter receive support.
2. Universal Declaration of Human Rights
3. treaties, e.g. Treaty of Versailles Right to Sovereignty and Independence
4. The need for States to maintain an international Sovereignty
standard of justice in the treatment of aliens The totality of the powers, legal competence and
5. Genocide Convention privileges of a state arising from customary
6. 1930 Hague Convention international law and not dependent on the consent
7. 1950 European Convention on Human Rights of another state.
and Fundamental Freedoms Independence
The freedom to conduct foreign relations
III. FUNDAMENTAL RIGHTS OF STATE without outside control.
1. Existence and Self-Preservation The right to independence is a natural aspiration
2. Right to Sovereignty and Independence of people.
3. Right of Equality It is not an absolute freedom.
Valid restraints may consist in the obligation to
Existence and Self-Preservation observe
Article 51 of the UN Charter 1. the rights of others
Right of the state to individual and collective 2. treaty stipulations
self-defense through regional appointments, if an 3. obligations arising from membership in
armed attack occurs against such state, until the international organizations
Security Council has taken measures necessary to Intervention
maintain international peace and security.
Right may be resorted to upon clear showing of State interferes in the domestic or foreign affairs
grave and actual danger and must be limited to of another state through the use of force or threat of
necessity. force.
Security Council which determines whether or Protest or demand for rectification or reparation
not an “armed attack” has taken place. does not comprise intervention.
Aggression 1. Intervention used to be justified for preservation
The use of armed force by a state against the of the balance of power, pre-emptive self-defense,
sovereignty, territorial integrity or political enforcement of treaty obligation, collection of debts
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Nachura Notes – Constitutional Law
(subsequently prohibited – Drago Doctrine in the Neither may its public property be attached or
HGUE Convention). taxed, nor its public vessel be boarded, arrested or
2. Contemporary International Law, intervention is sued.
not allowed. Based on the principle of par in parem non
o Article 2, UN Charter – even UN is precluded habet imperium.
from intervening in matters essentially within the The State’s immunity extends to the Head of
domestic jurisdiction of a state, unless necessary to State who is the personification of the State.
remove and prevent threats to the peace, breaches or Restrictive Application of the Doctrine
acts of aggression. Only with respect to sovereign or public acts of
o 1965 UN General Assembly – no state has the the state and cannot be invoked with respect to
right to intervene, directly or indirectly, in the private or proprietary acts.
affairs of another. Neither may this immunity be invoked when the
3. At present, intervention is allowed only: foreign state sues in the courts of another state, for
a. as an act of individual or collective self-defense then it is deemed to have submitted itself to the
in response to an armed attack ordinary incidents of procedure and thus, a
b. pursuant to treaty stipulations or counterclaim may be validly set up against it.
c. with prior UN authorization On Labor Contracts
Immunity Extends to Diplomatic Personnel to
Right of Equality the United Nations, its organs and specialized
- Article 2 of UN Charter agencies and to international organizations
Organization is based on the principle of Waiver of Immunity
sovereign equality of all its members 1. gives its consent at the time the proceeding is
Guaranteed is legal – or sovereign – equality: instituted
equal in law, rights of sovereignty, personality, 2. takes steps relating to the merits of the case
territorial integrity and political independence before invoking immunity
respected by others. 3. by treaty or contract, it had previously given
Not equality in fact consent
- Act of State Doctrine 4. by law or regulation in force at the time the
A state should not inquire into the legal validity complaint arose, it has indicated that it will consent
of the public acts of another state done within the to the institution of the proceedings.
territory of the latter.
Considerations such as motive are immaterial. IV. RIGHT TO TERRITORIAL INTEGRITY
State doctrine seems to make a determination on AND JURISDICTION
the validity of the confiscation of property by a
foreign state a violation of the principle of Territory
international law. (Sabbatino Case) - Fixed portion on the surface of the earth on
Acts of torture, execution and disappearance which the State settles and over which it has
were clearly acts outside of the President’s authority supreme authority.
and are not covered by the act of state doctrine. - Components:
- Doctrine of State Immunity 1. Terrestrial
As a consequence of independence, territorial 2. Aerial
supremacy and equality, a state enjoys immunity 3. Fluvial
from the exercise of jurisdiction (executive, 4. Maritime
legislative, judicial) by another state, unless he has - National Territory of the Philippines – Section
given consent, waived its immunity or voluntarily 1, Article I.
submitted to the jurisdiction of the court - Organic Acts
concerned. 1. Treaty of Paris – cession of the Philippine
Islands by Spain to the US
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Nachura Notes – Constitutional Law
iv. Canals GR: ships (not aircrafts) of all states enjoy the
Suez Canal - neutralized right of innocent passage through the territorial sea
Panama Canal – open to everyone in times of (not waters).
war or peace Must be continuous and expeditious.
2) Archipelagic Waters Exception: force majeure
Archipelagic Doctrine – The waters around, Submarines and other underwater craft are
between and connecting the islands of the required to navigate on the surface and to show
archipelago, regardless of their breadth or their flag
dimension, are to be treated as internal waters. 4) Contiguous Zone – extends up to 12 nautical
Archipelago – group of islands (including parts miles from the territorial sea.
of island), interconnecting waters and other natural Technically, not part of the territory of the State.
features which are closed interrelated in such Coastal state may exercise limited jurisdiction
islands, waters, and other natural features which over the contiguous zone to prevent infringement of
form an intrinsic geographical, economic and customs, fiscal, immigration or sanitary laws.
political entity for which historically has been 5) Exclusive Economic Zone – extends up to 200
regarded as such. nautical miles from the low-water mark or the
Straight Baseline Method – to determine extent baselines.
of archipelagic waters, the archipelagic state shall Coastal state may exercise sovereign rights over
draw straight baselines connecting the outermost economic resources of the sea, seabed, subsoil,
points of the outermost islands and drying reefs Other States shall have freedom of navigation
providing that the ratio of the area of the water to and over-flight, to lay submarine cables and
the area of the land, including atolls, is between 1:1 pipelines, and other lawful uses.
and 9:1. States with overlapping EEZ enter into
The length of such baselines shall not exceed appropriate treaty for joint exploitation and
100 nautical miles, except that up to 3% of the total utilization.
number of base lines inclosing any archipelago may Philippine EEZ Scarborough Shoal
exceed that length, up to a maximum of 125 6) Continental Shelf
nautical miles. Comprises the seabed and the subsoil of the
The baselines drawn should not depart from, to submarine areas that extends beyond the territorial
any appreciable extent, from the general sea throughout the natural prolongation of its land
configuration of the archipelago. territory to the outer edge of the continental margin,
All the waters within the baselines shall be or to a distance of 200 miles from the baselines
considered as internal waters. from which the territorial sea is ensured where the
The breadth of the 12-mile territorial sea, the outer edge of the continental margin does not
contiguous zone, the exclusive economic zone and extend up to that distance.
the continental shelf shall then be measures from Coastal state enjoys right of exploitation of oil
the archipelagic baselines. deposits and other resources in the continental shelf.
Vessels may be allowed innocent passage. This In case continental shelf extends to the shores of
right may be suspended, after PUBLICATION in another State, or is shared with another State, the
the interest of INTERNATIONAL SECURITY. boundary shall be determined in accordance with
Coastal state may designate the equitable principles.
ARCHIPELAGIC SEA LANES for continuous, 7) High Seas
unobstructed transit vessels. Treated as res communes or res nullius
3) Territorial Sea - belt of the sea located between Not territory of any particular state
the coast and internal waters of the coastal state on Traditional view: Freedom of the high seas –
one hand and the high seas on the other, extending open and available, without restriction, to the use of
up to 12 nautical miles from the low-water mark, or all states for the purpose of navigation, flight over
in case of archipelagic states, from the baselines.
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Nachura Notes – Constitutional Law
4) Immigration, restriction and alien registration Same jurisdiction as land area, since the internal
5) Same immunities as are enjoyed by diplomats of water are deemed assimilated in the land mass
comparable rank Foreign merchant vessels docked in a local port
International agency, enjoys immunity from the or bay, the coastal state exercises jurisdiction in
legal writs and processes of the Philippines, because civil matters, but criminal jurisdiction depends on:
subjection to local jurisdiction would impair the 1) English Rule: coastal state shall have
capacity of such body to discharge its jurisdiction over all offenses committed on board
responsibilities impartially in behalf of its member the vessel except those which do not compromise
States. the peace of the port
Section 31, Convention on the Privileges and 2) French Rule: flag State shall have jurisdiction
Immunities to Specialized Agencies of the UN – over all offenses committed on board the vessel
provides remedy for those who may be adversely except those which compromise the peace of the
affected by these immunities each specialized port.
agency of the UN shall make a provision for - Over archipelagic waters
appropriate modes of settlement of disputes arising Same rule as internal waters.
out of contracts or other disputes of private Except for innocent passage of merchant vessels
character to which it is a party. through archipelagic sea lanes.
5) Foreign merchant vessels exercising the right of - Over the territorial sea
innocent passage or arrival under stress Criminal jurisdiction over foreign merchant
Innocent Passage: navigation through the vessels depends on English Rule or French Rule
territorial sea of a State for the purpose of Exceptions:
transversing that sea without entering internal 1) Innocent passage and
waters, or of proceeding to internal waters, or 2) Involuntary surrender (distress on the vessel
making for the high seas from the internal waters, as must be real)
long as it is not prejudicial to the peace, good order - Over the contiguous zone
or security of the coastal State. UN Convention on the Law of the Sea, the
Arrival under stress: involuntary entrance, due Coastal State may exercise the control necessary to
to lack of provisions, unseaworthiness of vessel, prevent infringement of its customs, fiscal,
inclement weather or other case of force majeure, immigration and sanitary regulations, and punish
such as pursuit by pirates. the said infringement.
6) Foreign armies passing through or stationed in - Over the exclusive economic zone
the territory with the permission of the State UN Convention on the Law of the Sea, Coastal
7) Warships and other public vessels of another State has sovereign rights over the EEZ for
State operated for non-commercial purposes purposes if exploring and exploiting, conserving
Generally immune from local jurisdiction and managing the natural resources, whether living
“floating territory” or non-living, of the sea-bed, sub-soil, and the
Crew members are immune from local superjacent waters as well the production of energy
jurisdiction when on shore duty. from the water, currents and winds.
N/A if the crew members violate local laws Other States shall have the freedom of
while on furlough or off-duty navigation and over-flight, to lay submarine cables
and pipes and other lawful uses.
Jurisdiction over Land Authority - Over the continental shelf
- Save for exceptions, the State exercises Coastal State enjoys the right of exploitation of
jurisdiction over everything found within the oil deposits and other resources in the continental
terrestrial domain. shelf.
In case the continental shelf extends to the
Jurisdiction over Maritime Authority shores of another State or is shared with another
- Over internal waters
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Nachura Notes – Constitutional Law
State, the boundary shall be determined in 3) Ceases as soon as the ship being pursued enters
accordance with equitable principles. the territorial sea of its own or of a Third State.
- Over the high seas
Its vessels Jurisdiction over other Territories (Extra-Territorial
Flag state has jurisdiction over its public vessels Jurisdiction)
wherever they are, and over its merchant vessels on - State may, by virtue of customary and
the high seas. conventional law, extend its jurisdiction to territory
Because of the “Flags of Convenience” not within its sovereignty in the following:
Controversy, the UN Convention on the Law of the 1) Assertion of personal jurisdiction over its
Sea concedes that a vessel shall have the nationality national abroad
of the flag it flies provided there is genuine link 2) Relations with other states, as when it
between the State and the vessel State must establishes a protectorate, condominium, or
effectively exercise jurisdiction and control in administers trust territory or occupies enemy
administrative, technical and social matters over the territory in the course of war
ship. 3) Consequence of waiver of jurisdiction by the
Pirates local state over person and things within the latter’s
Enemies of mankind territory
May be captured on the open seas by the vessels 4) Principle of extraterritoriality, exemption of
of any State persons and things from the local jurisdiction on the
Engaged in illicit traffic in drugs and slave trade basis of international custom.
All states shall cooperate in the suppression of: (Principle of extra-territoriality: exemption from
1) Illicit traffic in narcotics jurisdiction is based on treaty or convention;
2) Illicit traffic in slave trade discredited)
3) Terrorism 5) Enjoyment of easements and servitudes
4) Unauthorized broadcasting from the high seas,
except in distress calls Rome Statute of the International Criminal Court
(ICC)
In the exercise of the right to visit and search
- Adopted in July, 1988 by a Conference of States
Laws of Neutrality – public vessels or aircraft of
in Rome
a belligerent State may visit and search any neutral
- Come into existence once 60 States have ratified
merchant vessel on the open seas and capture it if
- Philippines signed the ICC Statute on 28
found to be engaged in activities favorable to the
December 2000
other belligerent.
- January 2000 124 countries have signed;
Under the doctrine of hot pursuit
only 25 have ratified
If an offense is committed by a foreign
- Jurisdiction of the court limited to serious
merchant vessel within the territorial waters of the
crimes of concern to international community as a
coastal state (or of the coastal state has good reason
whole
to believe that such an offense had been committed)
a. Genocide
the said State’s vessels may pursue the offending
b. Crimes against humanity
vessel into the open seas and, upon capture, bring it
c. War crimes
back to its territory for punishment.
d. Crimes of aggression
Exercised to violations committed in the EEZ or
on the continental shelf installations.
V. RIGHT OF LEGATION
However, to be lawful:
1) The pursuit must have begun before the
The Right of Legation
offending vessel has left the territorial waters or the
Right of Diplomatic Intercourse
contiguous zone of the coastal state
2) The pursuit must be continuous and unabated Right of the state to send and receive diplomatic
missions, which enables States to carry on friendly
intercourse.
141
Nachura Notes – Constitutional Law
142
Nachura Notes – Constitutional Law
144
Nachura Notes – Constitutional Law
Possessed by every state as attribute of the Senate leadership, the Secretary shall then make
sovereignty the appropriate recommendations to the President.
International organization, deemed to possess
such, may be limited by the purpose and Treaty-making Process
constitution of such organization. 1) Negotiations
2) Competence of the representative/organ Pleine pouvoirs
concluding the treaty Even w/o such, it has been the general practice
Generally, exercised by Head of State. to consider the following as representatives of the
In the Philippines, President w/ concurrence by State for treaty negotiations:
2/3 of all members of the Senate 1) Head of State
3) Parties must freely given consent 2) Head of Government
Doctrine of Unequal Treaties – imposed through 3) Foreign Minister
coercion or duress by a State of unequal character is 4) Head of diplomatic missions
void. 5) Representative accredited by the State to an
4) Object and subject matter must be lawful international conference or to an international
Within the commerce of nations and in organization
conformity with international law. 2) Signing of the Treaty
Doctrine of jus cogens – customary international Principle of alternat – order of the naming of the
law has the status of peremptory norm of parties and of the signatures of the plenitpotentiaries
international law, accepted and recognized by the is varied so that each party is named and its
international community of states as a rule from plenipotentiary signs first in the copy of the
which no derogation is permitted. instrument to be kept by it.
A treaty which contravenes such norms/rules 3) Ratification
may be invalidated. Provisions of a treaty are formally confirmed
Official torture of prisoners is violation of and approved by a State and by which the State
principle of jus cogens (Human Rights Cases vs. expresses its willingness to be bound by the treaty
Marcos) Philippines power to ratify is with the
5) Ratification in accordance with constitutional President, subject to concurrence by 2/3 of all the
processes of the parties concerned members of the Senate
Concurrence in by at least 2/3 of all the Accession or Adhesion – non-signatory State
members of the Senate. becomes a party to the treaty; by invitation or
permission of the contracting parties, a 3rd party
Treaties and Executive Agreements who did not participate or who did not ratify on
time, may be bound by a treaty.
Treaties Executive Agreements
Reservation: unilateral statement made by a
Basic political issues Adjustment of detail State when signing, ratifying, accepting, approving
Changes in national carrying out well- or acceding to a treaty, whereby it purports to
policy established national exclude or modify the legal effect of certain
policies provisions of the treaty in their application to the
Permanent international Temporary arrangements State.
arrangements
Remains to be a party to the treaty as long as
reservation is compatible with the object and
When there is a dispute as to whether or not an purpose of the treaty.
international agreement is purely an executive 4) Entry into Force
agreement, the matter is referred to the Secretary of In such manner and on such date as it may
Foreign Affairs who will then seek the comments of provide, or as the negotiating parties may agree.
the SENATE REPRESENTATIVE and the LEGAL
ADVISER of the DFA and after consultation with
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Nachura Notes – Constitutional Law
Absence of such provision, as soon as consent “disappearance of the foundation upon which it
of all the parties to be bound by the treaty is rests.”
established. Doctrine does not operate automatically, there
Consent deemed established: must be a FORMAL ACT OF REJECTION, usually
1) Exchange of instruments of ratification by the HEAD OF STATE, with a statement of the
2) Deposit of such instrument with a named REASONS why compliance with the treaty is no
depositary, coupled with the notification to the longer required.
contracting State of such deposit. Requisites
Registration with and publication by the UN – 1) Change must be so substantial that the
failure does not affect the validity of the treaty; only foundation of the treaty must have altogether
that the unregistered instrument cannot be invoked disappeared
by any party before any organ of the United 2) Change must have been unforeseen or
Nations. unforeseeable at the time of the perfection of the
treaty
When non-signatories may be bound by a treaty 3) Change must not have been caused by the party
GR: treaties cannot impose obligations upon invoking the doctrine
States not parties to them. (Pacta tertiis nocent nec 4) Doctrine must be invoked within a reasonable
prosunt) time
Exception 5) Duration of the treaty must be indefinite
1) Process of Accession or Adhesion 6) Doctrine cannot operate retroactively
2) Most favored Nation Clause – contracting State
entitled to the clause may claim the benefits Interpretation of Treaties
extended by the latter to another State in a separate - Interpreted in good faith
agreement. - Ordinary meaning given to the terms
3) Formal expression of customary international - In the light of its objects and purposes
law - Consider:
4) Treaty expressly extends benefits to non- 1) Preamble
signatory States 2) Text
3) Annexes
Fundamental principles 4) Agreements relating to the treaty
1) Pacta sunt servanda 5) Subsequent agreements
Treaties must be observed in good faith.
If necessary, State must modify its national Amendment/Modifications
legislation to make them conform to the treaty, to Consent of all the parties is required
avoid international embarrassment If allowed by the treaty itself, 2 States may
Philippines treaty may be invalidated if modify a provision only insofar as they are
contrary to Constitution concerned.
Tanada vs. Angara: Treaties do not limit or
restrict sovereignty of a State; by their voluntary Termination of Treaties
act, States may surrender some aspects of their 1) EXPIRATION of the term or WITHDRAWAL
power in exchange for greater benefits granted by or of a party
derived from a convention or pact. 2) EXTINCTION of one of the parties (bipartite
2) Rebus sic stantibus treaties)
Contracting State’s obligations under a treaty When the rights and obligations under the treaty
terminates when a vital or fundamental change or would not devolve upon the State that may succeed
circumstances occurs, thus allowing a State to the extinct State
unilaterally withdraw from a treaty, because of 3) MUTUAL AGREEMENT of ALL the parties
4) DENUNCIATION or DESISTANCE
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Nachura Notes – Constitutional Law
The right to give notice of termination or No obligation on the part of the State of his
withdrawal – right of denunciation nationality to recognize a person’s newly acquired
5) SUPERVENING IMPOSSIBILITY of nationality.
performance 3) Repatriation – recovery of nationality by
6) CONCLUSION of SUBSEQUENT individuals who were natural-born citizens of a
INCONSISTENT TREATY State but who had lost their nationality.
7) LOSS of the subject matter 4) Subjugation
8) MATERIAL BREACH or violation 5) Cession
9) REBUS SIC STANTIBUS
10) Outbreak of WAR, unless the treaty precisely Loss of Nationality
relates to the conduct of war 1) Release
11) SEVERANCE of diplomatic relations 2) Deprivation
12) Doctrine of JUS COGENS or emergence of 3) Renunciation
NEW PEREMPTORY NORM of general 4) Substitution
international law which renders void any existing
treaty conflicting with such norm. Multiple Nationality
Possessed of mope than one nationality because
VII. NATIONALITY AND STATELESSNESS of the concurrent application to him of the
municipal laws of 2 or more states claiming as their
Nationality – membership in a political community national.
with rights and duties Arise by:
- Determination of a person’s nationality – 1930 1) Concurrent application to him of the principles
Hague Convention on Conflict of Nationality Laws of jus sanguinis and jus soli
1) For each state to determine under its own law 2) naturalization w/o renunciation of the original
who are its nationals nationality
2) Question as to whether a person possesses the 3) legitimation
nationality of a particular State shall be determined 4) legislative action
in accordance with the law of that State. Policy in the Philippines- dual allegiance is
inimical to national interest and shall be dealt with
- Mode of Acquisition of Nationality by law.
1) Birth Resolution of conflicts in Multiple Nationality
Jus sanguinis (by blood) Cases
Jus soli (by place of birth) 1930 Hague Convention on the Conflict of
2) Naturalization Nationality Law
Accomplished through: 1) A person having 2 or more nationalities –
1) Marriage regarded as national by each of the States; AND a
2) Legitimation state may not give diplomatic protection to one of
3) Election its nationals against a State whose nationality that
4) Acquisition of domicile person possesses.
5) Appointment to government office 2) If a person has more than one nationality, he
6) Grant on application shall within a 3rd state, be treated as if he had only
In the Philippines one; the third State shall recognize exclusively
1) Judicial process either the nationality of the State in which he is
2) Legislative process habitually and principally resident or the nationality
3) Election of the State with which he appears in fact to be most
4) Marriage closely connected – “Principle of Effective
Nationality”
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Nachura Notes – Constitutional Law
Even when the laws of the State conform to to the remedies available under the laws of the local
International standard, if it does not make state.
reasonable efforts to prevent injury to alien or Does not mean that the alien’s state is deprived
having done so unsuccessfully, fails to repair such of the right to protect or vindicate its interest in case
injury. they are injured in another state, as such waiver can
The act or omission that may give rise to be legally made by the state, not the alien.
liability may either be: 2. Resort to Diplomatic Protection
1. acts of government officials After exhaustion of local remedies, alien must
primary agents avail himself of the assistance of his state.
give rise to direct state responsibility Tie of nationality time of injury until time
acts of high administrative officials international claim is finally settled.
officer acts beyond the scope of his authority, UN may file diplomatic claim on behalf of its
his act is likened to an act of a private individual. officials.
Acts of a minor or subordinate official to give European Commission on HR and also
rise to liability, there must be a denial of justice or contracting states other than the state of the injured
something which indicates complicity of the State individual may bring alleged infractions of the
in, or condonation of, the original wrongful act, European Convention on HR before the European
such as an omission to take disciplinary action Court of HR.
against the wrongdoer. 3. Modes of Enforcement of Claims
2. acts of private individuals Negotiations or other modes of settling dispute.
For State to be liable, there must be actual or When responsibility is established:
tacit complicity of the government in the act, before 1. Reparation
of after it, either by directly ratifying or approving 2. Satisfaction
it, or in the patent or manifest negligence in taking 3. Compensation
measures to prevent injury, investigate the case, 4. all three
punish the guilty or to enable the victim to pursue
his civil remedies against the offender. Extradition
The claimant has the burden of proving. - surrender of a person by one state to another
3. Injury to the claimant State indirectly because of state where he is wanted for prosecution or
damage to its national punishment (if already convicted)
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Nachura Notes – Constitutional Law
151
Nachura Notes – Constitutional Law
152
Nachura Notes – Constitutional Law
3. existence of any fact which would constitute a a. Security Council will recommend appropriate
breach of international obligations measures; consider amicable measures or refer
4. nature or extent of the reparation to be made matter to ICJ;
for such breach b. If unsuccessful, Security Council may
8. Resort to Regional Agencies or Arrangements recommend such terms of settlement as it may deem
Parties may of their own volition or at the appropriate; and
instance of the organization itself, assume the c. If the terms of settlement are rejected, Security
obligation of settling the dispute. Council may take:
Preventive Action
Hostile Methods Not involving use of armed force
- Pacific methods have failed. E.g. complete or partial interruption of
- Includes: economic relations, and of rail, sea, air, postal,
1. Severance of Diplomatic Relations telegraphic, radio or other means of
2. Retorsion – unfriendly but lawful, coercive acts communications and severance of diplomatic
done in retaliation for unfair treatment and acts of relations.
discrimination of another state. (e.g. levy of high Enforcement Action
discriminatory tariffs on goods) By air, sea or land forces as may be necessary to
3. Reprisal – unfriendly and unlawful acts in maintain or restore international peace and security
retaliation for reciprocal unlawful acts of another including demonstrations, blockades and other
state: operations by air, sea or land forces of members of
a. Freezing of the assets of the nationals of the the UN.
other state Member state is obliged to render assistance in
b. Embargo – forcible detention or sequestration of carrying out the measures decided upon by the
vessels and other property of the offending state. Security Council.
c. Pacific blockade – prevention of entry/exit from
the ports of the offending state of means of General Assembly
communication or transportation n(could be - If the Security Council because of lack of
violative of UN Charter) unanimity fails to exercise its primary responsibility
d. Non-intercourse – suspension of all intercourse to maintain peace and security, the General
with the offending state, in matters of trade and Assembly shall consider making recommendations
commerce including the use of armed forces when necessary.
e. Boycott – concerted suspension of commercial
relations with the offending state, particularly, the X. WAR AND NEUTRALITY
refusal to purchase goods.
4. Intervention War
5. other Peaceful Means Contention between 2 states, through their
armed forces, for the purpose of overpowering the
Role of the United Nations other and imposing such conditions of peace as the
- Methods of settling disputes do not succeed, UN victor pleases.
may be asked or may decide on its own authority to
Does not mean the mere employment of force.
take a hand in the settlement
- Security Council or the General Assembly If a nation declares war, war exists though no
force has yet been used.
Security Council
- Intervene in all disputes affecting international Outlawry of War
peace and security and in all disputes which Condemnation of war on an international scale
although coming under the domestic jurisdiction Covenant of the League of Nations: conditions
clause, have been submitted to it by the parties for for the right to go to war
settlement.
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Nachura Notes – Constitutional Law
Kellogg-Briand Pact of 1928 or General Treaty State may, in time of war, authorize and provide
for Renunciation of War: forbade war as an for seizure and sequestration, through executive
instrument of national policy channels, of properties believed to be enemy-
Charter of the United Nations: prohibits the owned, if adequate provision is made for their
threat or use of force against the territorial integrity return in case of mistake.
or political independence of a state.
Participants in War
Commencement of War 1. Combatants – those who engage directly in the
a. Declaration of war hostilities
b. Rejection of an ultimatum 2. Non-combatants – those who do not
c. Commission of an act of force regarded by one
of the belligerents as an act of war Combatants – may be:
1. Non-privileged: like spies, who under false
Effects of Outbreak of War pretenses try to obtain vital information from the
(1) Laws of peace cease to regulate the relations enemy ranks and who, then caught, are not
between the belligerents and are superseded by laws considered prisoners of war.
of war; 2. Privileged : who, when captured, enjoy the
Third states are governed by laws of neutrality privileges of prisoners of war:
in their relations with the belligerents; a. Regular armed forces
(2) Diplomatic and consular relations are b. Ancillary services
terminated; c. Accompany the armed forces
Representatives are allowed to return to their d. Levees en masse, inhabitants of unoccupied
countries; territory who, on approach of the enemy,
(3) Treaties of political nature are automatically spontaneously take up arms to resist the invading
cancelled, except those intended to operate during troops without having had time to organize
the war; themselves, provided they carry arms openly and
Multipartite treaties dealing with technical or observe the laws and customs of war;
administrative matters are merely suspended as e. Franc tireursm, or guerillas, provided they are
between belligerents. commanded by a person responsible for his
(4) Individuals are impressed with enemy character: subordinates, wear a fixed distinct emblem
a. Nationality test – nationals of the other recognizable at a distance, carry their arms openly,
belligerent, wherever they may be and conduct their operations according to the laws
b. Domicillary test – domiciled aliens in the and customs of war; and
territory of the other belligerent on the assumption f. Officers and crew of merchant vessels who
that they contribute to its economic resources forcibly resist attack.
c. Activities test – if being foreigners, they
participate in the hostilities in favor of the other Rights of Prisoners of War
belligerent 1949 Geneva Convention
(5) Corporations and other juridical persons are Treated humanely
considered enemies: Not subject to torture
a. where the controlling stockholders are nationals Allowed to communicate with their families
of the other belligerent OR Receive food, clothing. Religious articles, etc.
b. if incorporated in the territory or under the laws
of the other belligerent and may not be allowed to Spies
continue operations. Individual is deemed a spy only if,
(6) Enemy public property found in the territory of a. Acting clandestinely or under false pretenses
the other belligerent at the outbreak of the war is b. He obtains or seeks to obtain information in the
subject to confiscation; zone of operations of a belligerent
Private property is subject to requisition.
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Nachura Notes – Constitutional Law
c. With the intention of communicating it to the maintain international peace and security,
hostile party. humanitarian rules of warfare should still govern.
When captured, may be proceeded against under
the municipal law of the belligerent. Principle of Chivalry
Although under the Hague Convention, may not Prohibits the belligerents from the employment
be executed without a trial. of perfidious or treacherous methods.
But if captured after he has succeeded in
rejoining his army, must be treated as a prisoner of Belligerent Occupation
war. Temporary military occupation of the enemy’s
Scouts or soldiers in uniform who penetrate the territory during the war.
zone of operations of the hostile army to obtain Maintains effective control and military
information are NOT spies. superiority and being able to send sufficient forces
to assert its authority within a reasonable time.
Mercenaries
Protocol I to the 1949 Geneva Convention Effects
No change in sovereignty, but exercise of the
Mercenaries shall not have the rights of
powers of sovereignty is suspended.
combatants or of prisoners of war.
Political laws, except the laws on treason, are
To be considered a mercenary
suspended.
a. The person must be a specially recruited to fight
Municipal laws remain in force.
for a particular armed conflict
b. Must take direct part in the hostilities
Rights and Duties of Belligerent Occupant
c. Motivated essentially by the desire for personal
1. Re-establish or continue the processes of orderly
gain and is provided material compensation
administration, including enactment of laws.
substantially in excess of that promised or paid to
2. Adopt measures for the protection of the
combatants of similar ranks and functions in the
inhabitants
armed forces of that party.
3. Requisition (sequester) goods with proper cash
or future payment and services in non-military
Conduct of Hostilities.
projects (Conscription is prohibited)
Three Basic Principles
4. Demand taxes and contributions to finance
Principle of Military Necessity
military and local administrative needs
The belligerent may employ any amount of force to
Foraging: the actual taking of provisions for
compel the complete submission of the enemy with
men and animals by the occupation troops where
the least possible loss of lives, time and money.
lack of time makes it inconvenient to obtain
Principle of Humanity
supplies by usual or ordinary methods.
Prohibits the use of any measure that is not
Compensation must be paid at the end of the
absolutely necessary for the purposes of the war.
war.
Humanitarian Convention in Armed Conflict
5. Issue legal currency
The right of the parties to adopt means of injuring
6. Use enemy property, public or private, but
the enemy is not unlimited
private property is subject to indemnification or
Parties are prohibited to launch attacks against the
return at the end of the war.
civilian population as such
Distinction must be made at all times between
Right of Angary
persons taking part in the hostilities and members of
Right of belligerent state, in cases of extreme
the civilian population, to spare the latter as much
necessity, to destroy or use neutral property on its
as possible.
own or on enemy territory or on the high seas
Enforcement action undertaken by UN is not war in
the traditional sense, as it is employed only to
Non-Hostile Intercourse
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Nachura Notes – Constitutional Law
Cartels Capitulation
Agreements to regulate intercourse during the Surrender of military forces, places or districts
war in accordance with rules of military honor.
Usually on the exchange of prisoners of war
Termination of War
Passport 1. Simple Cessation of Hostilities
Written permission given by the belligerent Principle of uti possidetis with respect to
government property and territory possessed by the belligerents
To the subjects of the enemy is applied.
To travel generally in the belligerent state 2. Conclusion of a negotiated treaty of peace
3. Defeat of one of the belligerents
Sage-conduct Followed by a dictated territory of peace or
Permission given to an enemy subject or to an annexation of conquered territory.
enemy vessel
Allowing passage between defined points Postliminium
Revival or reversion to the old laws and
Safeguard sovereignty of territory which has been under
Protection granted by a commanding officer to belligerent occupation once control of the
enemy persons or property within his command belligerent occupant is lost over the territory
Usually with an escort or convoy of soldiers affected.
providing the needed protection.
Distinguished from Uti Possidetis
Licenses to Trade Uti Possidetis alloaws retention of property or
Permission given by competent authority to territory in the belligerent’s actual possession at the
individuals to carry on trade though there is state of time of the cessation of hostilities.
war.
War Crimes
Suspension of Hostilities - Acts for which soldiers or other individuals may
be punished by the enemy on capture of the
Suspension of Arms offender.
Temporary cessation of hostilities - War Criminal: any person – civilian or member
By agreement of the local commanders of the armed forces of the State, who commits an
For the purposes of gathering of the wounded act that violates a rule of international law
and burial of the dead governing armed conflicts
157
Nachura Notes – Constitutional Law
Termination of Neutrality
(1) Conclusion of a treaty or peace between
belligerents
(2) Neutral state itself joins war
158