2010 prebar notes poli

7/28/2019 2010 Prebar Notes Poli

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2010 PRE-BAR NOTES IN POLITICAL LAW

(This is a compilation of my personal reading, hand-outs and lectures for 2010 bar examination

in Political law. Feel free to use this as an additional reading material for your preparation inthe bar examination. But as the law on Sales says, CAVEAT EMPTOR. Goodluck and God bless.

Through GOD's mercy and grace, we will achieve what we aspire for.)

ELEMENTS OF THE STATE

People

Territory

Fixed portion of the face of the earth

Archipelago doctrine

The national territory comprises the Philippine archipelago, with all the islandsand waters embraced therein, and all other territories over which the

Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial

and aerial domains, including its territorial sea, the seabed, the subsoil, theinsular shelves, and other submarine areas.

ElementsTerrestrialFluvialAerial

Is ARMM (Bansa Moro) a state? NO. Indigenous community right isrecognized in the framework of national unity and development.

Government

The will of the state formulated, express and realized

Government is the agent of the state

The one who violate the right is an act of the government and not the state.

Parens patria - government has the right to sue in behalf of the victim

Government of the Philippines is a corporate governmental entity thru which the

function of the government is exercise throughout the Philippines

Democratic and republican

Constituent function- compulsory; ministerial function- general welfare

Is distinction relevant? No. what the private sector done before is now is doneby the government.

2 kinds of GovernmentDe facto- with power and control but without legal rightDe jure- no power or control but legal

3 kinds of de facto GovernmentInsurrectionUsurpationOccupation

Administration change from time to time; group of people who has the reign of

power for the meantime

Sovereignty

Legal sovereignty- one who has authority or final say (congress)


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Political sovereignty - power behind legal sovereignty; people

KindsInternalExternal - directs relations to other state

Bansa Moro was given power to have relations to independent state

(unconstitutional)Characteristics

Permanent, exclusive, absolute, imprescriptible, comprehensive, indivisible,

inalienable

Belligerent OccupationSovereignty cannot be suspended but the exercise of the acts of sovereigntyPolitical laws are suspended with respect to civilian forces but not as far as

enemy-at-arm is concern.Political law is suspended to civilian except for law on treasonNon-political law is still binding

Change in sovereignty/state

Political law is abrogatedNon-political law remains effective unless the new state change the political

law

NON-SUABILITY OF THE STATE

No right against authority which makes the law upon which the right depends.

Except: state gives consent

Can state sue other sate?

NO. The other state state can invoke sovereign equality of state

One state cannot assert jurisdiction to another state

Remedy: file a suit to the officer who discharge function or grant redress

If state is liable - not suable

If officer liable - suable

Suit not against the state

No affirmative act on the part of the government.previously appropriated funds for the case

Recovery and possession of title and propertyNo appropriation on the part of the governmentExample : payment of rental damages - suit against the state. Requiring

appropriation of money for damages.

Non- compliance on the condition of the donation. Recovery and possession oon

the title and property.

Royal prerogative of dishonesty

State can be sued if it gives its consent

Consent to sueExpress

General law - Act 3083 - arising out of contract

File claim to COA if rejected file a petition for certiorari to SC

Special lawImplied

Files for complaint asking for affirmative relief


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Filed intervention without affirmative relief - not an implied

waiver of suit

State entered to proprietary contract

Example : Wharfage claims is a governmental contract therefore

no implied waiver

EXCEPTION: CASEThe property is taken by the government without eminent domain. Theowner did not agree thus filed a case before the court. The government

contend non-suability of the state.

The court held non-suability of state cannot be use to violate theright of the person. The government did not follow the procedure of

expropriation.Suit filed against the agency of the government

Kinds

Incorporated

Check the charter

Check the functionUnincorporated

If both performing governmental and proprietary function

cannot be sued. If the government cannot perform the

government function without performing the proprietaryfunction.

Bureau of printing performing proprietary function outside scope

of their function.

Cannot be sued. Cannot divide the person. Those

performing governmental function is the same as those

performing proprietary function

Suability v. Liability

Not automatically liable. Must give consent to make the

government liable

LGU can sue and be sued.

They are suable but not liable because performing

governmental function.

Performing proprietary function - both suable and liableDECLARATION OF PRINCIPLES AND STATE POLICIES

PRINCIPLESSection 1. The Philippines is a democratic and republican State. Sovereignty resides in

the people and all government authority emanates from them.Section 2. The Philippines renounces war as an instrument of national policy, adopts

the generally accepted principles of international law as part of the law of the land and

adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with

all nations.

Doctrine of incorporation - the Philippines adopt generally accepted principles as

part of the law of the land.

Offensive war renounces but not defensive war

Congress has the power to express war


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Section 3. Civilian authority is, at all times, supreme over the military. The Armed

Forces of the Philippines is the protector of the people and the State. Its goal is to

secure the sovereignty of the State and the integrity of the national territory.Section 4. The prime duty of the Government is to serve and protect the people. The

Government may call upon the people to defend the State and, in the fulfillment

thereof, all citizens may be required, under conditions provided by law, to renderpersonal, military or civil service.Section 5. The maintenance of peace and order, the protection of life, liberty, and

property, and promotion of the general welfare are essential for the enjoyment by all

the people of the blessings of democracy.Section 6. The separation of Church and State shall be inviolable.

STATE POLICIESSection 7. The State shall pursue an independent foreign policy. In its relations with

other states, the paramount consideration shall be national sovereignty, territorialintegrity, national interest, and the right to self-determination.

Section 8. The Philippines, consistent with the national interest, adopts and pursues a

policy of freedom from nuclear weapons in its territory.Policy on nuclear weapon - freedom from nuclear weapon depends on national

interest

Section 9. The State shall promote a just and dynamic social order that will ensure the

prosperity and independence of the nation and free the people from poverty throughpolicies that provide adequate social services, promote full employment, a rising

standard of living, and an improved quality of life for all.

Section 10. The State shall promote social justice in all phases of nationaldevelopment.

Section 11. The State values the dignity of every human person and guarantees full

respect for human rights.

Section 12. The State recognizes the sanctity of family life and shall protect andstrengthen the family as a basic autonomous social institution. It shall equally protect

the life of the mother and the life of the unborn from conception. The natural and

primary right and duty of parents in the rearing of the youth for civic efficiency and thedevelopment of moral character shall receive the support of the Government.

Policy on divorce - solidarity of family

Marriage contract with expiration date? Sanctity of marriage

Policy on abortion- equally protect the life of mother and the child

Section 13. The State recognizes the vital role of the youth in nation-building and shall

promote and protect their physical, moral, spiritual, intellectual, and social well-being.

It shall inculcate in the youth patriotism and nationalism, and encourage theirinvolvement in public and civic affairs.

Prohibits the establishment of elementary and high school unconstitutional? Yes

Prohibits the teaching of local dialect unconstitutional? Yes. It prohibits the

national/primary right of rearing their children

Access to quality educationRules and regulation on up to 3 takes? Valid. Must show that he is entitled

to it.


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Section 14. The State recognizes the role of women in nation-building, and shall

ensure the fundamental equality before the law of women and men.

Section 15. The State shall protect and promote the right to health of the people andinstill health consciousness among them.

Section 16. The State shall protect and advance the right of the people to a balanced

and healthful ecology in accord with the rhythm and harmony of nature.Section 17. The State shall give priority to education, science and technology, arts,culture, and sports to foster patriotism and nationalism, accelerate social progress, and

promote total human liberation and development.

Section 18. The State affirms labor as a primary social economic force. It shall protectthe rights of workers and promote their welfare.

Section 19. The State shall develop a self-reliant and independent national economy

effectively controlled by Filipinos.

Section 20. The State recognizes the indispensable role of the private sector,encourages private enterprise, and provides incentives to needed investments.

Section 21. The State shall promote comprehensive rural development and agrarian

reform.Section 22. The State recognizes and promotes the rights of indigenous cultural

communities within the framework of national unity and development.

Section 23. The State shall encourage non-governmental, community-based, or

sectoral organizations that promote the welfare of the nation.Section 24. The State recognizes the vital role of communication and information in

nation-building.

Section 25. The State shall ensure the autonomy of local governments.Section 26. The State shall guarantee equal access to opportunities for public service

and prohibit political dynasties as may be defined by law.

Section 27. The State shall maintain honesty and integrity in the public service and

take positive and effective measures against graft and corruption.Section 28. Subject to reasonable conditions prescribed by law, the State adopts and

implements a policy of full public disclosure of all its transactions involving public

interest.LEGISLATIVE DEPRATMENT

Section 1. The legislative power shall be vested in the Congress of the Philippines

which shall consist of a Senate and a House of Representatives, except to the extentreserved to the people by the provision on initiative and referendum.

Section 2. The Senate shall be composed of twenty-four Senators who shall be elected

at large by the qualified voters of the Philippines, as may be provided by law.

Section 3. No person shall be a Senator unless he is a natural-born citizen of thePhilippines and, on the day of the election, is at least thirty-five years of age, able to

read and write, a registered voter, and a resident of the Philippines for not less than two

years immediately preceding the day of the election.

Section 4. The term of office of the Senators shall be six years and shall commence,unless otherwise provided by law, at noon on the thirtieth day of June next following

their election. No Senator shall serve for more than two consecutive terms. Voluntary

renunciation of the office for any length of time shall not be considered as aninterruption in the continuity of his service for the full term of which he was elected.


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Section 5. (1) The House of Representatives shall be composed of not more than two

hundred and fifty members, unless otherwise fixed by law, who shall be elected from

legislative districts apportioned among the provinces, cities, and the MetropolitanManila area in accordance with the number of their respective inhabitants, and on the

basis of a uniform and progressive ratio, and those who, as provided by law, shall be

elected through a party-list system of registered national, regional, and sectoral partiesor organizations.(2) The party-list representatives shall constitute twentyper centum of the total number

of representatives including those under the party list. For three consecutive terms after

the ratification of this Constitution, one-half of the seats allocated to party-listrepresentatives shall be filled, as provided by law, by selection or election from the

labor, peasant, urban poor, indigenous cultural communities, women, youth, and such

other sectors as may be provided by law, except the religious sector.

(3) Each legislative district shall comprise, as far as practicable, contiguous, compact,and adjacent territory. Each city with a population of at least two hundred fifty

thousand, or each province, shall have at least one representative.

(4) Within three years following the return of every census, the Congress shall make areapportionment of legislative districts based on the standards provided in this section.

Section 6. No person shall be a Member of the House of Representatives unless he is a

natural-born citizen of the Philippines and, on the day of the election, is at least

twenty-five years of age, able to read and write, and, except the party-listrepresentatives, a registered voter in the district in which he shall be elected, and a

resident thereof for a period of not less than one year immediately preceding the day of

the election.Section 7. The Members of the House of Representatives shall be elected for a term of

three years which shall begin, unless otherwise provided by law, at noon on the

thirtieth day of June next following their election. No Member of the House of

Representatives shall serve for more than three consecutive terms. Voluntaryrenunciation of the office for any length of time shall not be considered as an

interruption in the continuity of his service for the full term for which he was elected.

Section 8. Unless otherwise provided by law, the regular election of the Senators andthe Members of the House of Representatives shall be held on the second Monday of

May.

Section 9. In case of vacancy in the Senate or in the House of Representatives, aspecial election may be called to fill such vacancy in the manner prescribed by law, but

the Senator or Member of the House of Representatives thus elected shall serve only

for the unexpired term.

Section 10. The salaries of Senators and Members of the House of Representativesshall be determined by law. No increase in said compensation shall take effect until

after the expiration of the full term of all the Members of the Senate and the House of

Representatives approving such increase.

Section 11. A Senator or Member of the House of Representatives shall, in all offensespunishable by not more than six years imprisonment, be privileged from arrest while

the Congress is in session. No Member shall be questioned nor be held liable in any

other place for any speech or debate in the Congress or in any committee thereof.


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Section 12. All Members of the Senate and the House of Representatives shall, upon

assumption of office, make a full disclosure of their financial and business interests.

They shall notify the House concerned of a potential conflict of interest that may arisefrom the filing of a proposed legislation of which they are authors.

Section 13. No Senator or Member of the House of Representatives may hold any

other office or employment in the Government, or any subdivision, agency, orinstrumentality thereof, including government-owned or controlled corporations ortheir subsidiaries, during his term without forfeiting his seat. Neither shall he be

appointed to any office which may have been created or the emoluments thereof

increased during the term for which he was elected.Section 14. No Senator or Member of the House of Representatives may personally

appear as counsel before any court of justice or before the Electoral Tribunals, or

quasi-judicial and other administrative bodies. Neither shall he, directly or indirectly,

be interested financially in any contract with, or in any franchise or special privilegegranted by the Government, or any subdivision, agency, or instrumentality thereof,

including any government-owned or controlled corporation, or its subsidiary, during

his term of office. He shall not intervene in any matter before any office of theGovernment for his pecuniary benefit or where he may be called upon to act on

account of his office.

Section 15. The Congress shall convene once every year on the fourth Monday of July

for its regular session, unless a different date is fixed by law, and shall continue to bein session for such number of days as it may determine until thirty days before the

opening of its next regular session, exclusive of Saturdays, Sundays, and legal

holidays. The President may call a special session at any time.Section 16. (1). The Senate shall elect its President and the House of Representatives,

its Speaker, by a majority vote of all its respective Members. Each House shall choose

such other officers as it may deem necessary.

(2) A majority of each House shall constitute a quorum to do business, but a smallernumber may adjourn from day to day and may compel the attendance of absent

Members in such manner, and under such penalties, as such House may provide.

(3) Each House may determine the rules of its proceedings, punish its Members fordisorderly behavior, and, with the concurrence of two-thirds of all its Members,

suspend or expel a Member. A penalty of suspension, when imposed, shall not exceed

sixty days.(4) Each House shall keep a Journal of its proceedings, and from time to time publish

the same, excepting such parts as may, in its judgment, affect national security; and the

yeas and nays on any question shall, at the request of one-fifth of the Members present,

be entered in the Journal. Each House shall also keep a Record of its proceedings.(5) Neither House during the sessions of the Congress shall, without the consent of the

other, adjourn for more than three days, nor to any other place than that in which the

two Houses shall be sitting.

Section 17. The Senate and the House of Representatives shall each have an ElectoralTribunal which shall be the sole judge of all contests relating to the election, returns,

and qualifications of their respective Members. Each Electoral Tribunal shall be

composed of nine Members, three of whom shall be Justices of the Supreme Court tobe designated by the Chief Justice, and the remaining six shall be Members of the


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Senate or the House of Representatives, as the case may be, who shall be chosen on the

basis of proportional representation from the political parties and the parties or

organizations registered under the party-list system represented therein. The seniorJustice in the Electoral Tribunal shall be its Chairman.

Section 18. There shall be a Commission on Appointments consisting of the President

of the Senate, as ex officio Chairman, twelve Senators, and twelve Members of theHouse of Representatives, elected by each House on the basis of proportionalrepresentation from the political parties and parties or organizations registered under

the party-list system represented therein. The chairman of the Commission shall not

vote, except in case of a tie. The Commission shall act on all appointments submittedto it within thirty session days of the Congress from their submission. The Commission

shall rule by a majority vote of all the Members.

Section 19. The Electoral Tribunals and the Commission on Appointments shall be

constituted within thirty days after the Senate and the House of Representatives shallhave been organized with the election of the President and the Speaker. The

Commission on Appointments shall meet only while the Congress is in session, at the

call of its Chairman or a majority of all its Members, to discharge such powers andfunctions as are herein conferred upon it.

Section 20. The records and books of accounts of the Congress shall be preserved and

be open to the public in accordance with law, and such books shall be audited by the

Commission on Audit which shall publish annually an itemized list of amounts paid toand expenses incurred for each Member.

Section 21. The Senate or the House of Representatives or any of its respective

committees may conduct inquiries in aid of legislation in accordance with its dulypublished rules of procedure. The rights of persons appearing in, or affected by, such

inquiries shall be respected.

Section 22. The heads of departments may, upon their own initiative, with the consent

of the President, or upon the request of either House, as the rules of each House shallprovide, appear before and be heard by such House on any matter pertaining to their

departments. Written questions shall be submitted to the President of the Senate or the

Speaker of the House of Representatives at least three days before their scheduledappearance. Interpellations shall not be limited to written questions, but may cover

matters related thereto. When the security of the State or the public interest so requires

and the President so states in writing, the appearance shall be conducted in executivesession.

Section 23. (1) The Congress, by a vote of two-thirds of both Houses in joint session

assembled, voting separately, shall have the sole power to declare the existence of a

state of war.(2) In times of war or other national emergency, the Congress may, by law, authorize

the President, for a limited period and subject to such restrictions as it may prescribe,

to exercise powers necessary and proper to carry out a declared national policy. Unless

sooner withdrawn by resolution of the Congress, such powers shall cease upon the nextadjournment thereof.

Section 24. All appropriation, revenue or tariff bills, bills authorizing increase of the

public debt, bills of local application, and private bills, shall originate exclusively inthe House of Representatives, but the Senate may propose or concur with amendments.


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Section 25. (1) The Congress may not increase the appropriations recommended by the

President for the operation of the Government as specified in the budget. The form,

content, and manner of preparation of the budget shall be prescribed by law.(2) No provision or enactment shall be embraced in the general appropriations bill

unless it relates specifically to some particular appropriation therein. Any such

provision or enactment shall be limited in its operation to the appropriation to which itrelates.(3) The procedure in approving appropriations for the Congress shall strictly follow the

procedure for approving appropriations for other departments and agencies.

(4) A special appropriations bill shall specify the purpose for which it is intended, andshall be supported by funds actually available as certified by the National Treasurer, or

to be raised by a corresponding revenue proposal therein.

(5) No law shall be passed authorizing any transfer of appropriations; however, the

President, the President of the Senate, the Speaker of the House of Representatives, theChief Justice of the Supreme Court, and the heads of Constitutional Commissions may,

by law, be authorized to augment any item in the general appropriations law for their

respective offices from savings in other items of their respective appropriations.(6) Discretionary funds appropriated for particular officials shall be disbursed only for

public purposes to be supported by appropriate vouchers and subject to such guidelines

as may be prescribed by law.

(7) If, by the end of any fiscal year, the Congress shall have failed to pass the generalappropriations bill for the ensuing fiscal year, the general appropriations law for the

preceding fiscal year shall be deemed re-enacted and shall remain in force and effect

until the general appropriations bill is passed by the Congress.Section 26. (1) Every bill passed by the Congress shall embrace only one subject

which shall be expressed in the title thereof.

(2) No bill passed by either House shall become a law unless it has passed three

readings on separate days, and printed copies thereof in its final form have beendistributed to its Members three days before its passage, except when the President

certifies to the necessity of its immediate enactment to meet a public calamity or

emergency. Upon the last reading of a bill, no amendment thereto shall be allowed,and the vote thereon shall be taken immediately thereafter, and theyeas and nays

entered in the Journal.

Section 27. (1) Every bill passed by the Congress shall, before it becomes a law, bepresented to the President. If he approves the same he shall sign it; otherwise, he shall

veto it and return the same with his objections to the House where it originated, which

shall enter the objections at large in its Journal and proceed to reconsider it. If, after

such reconsideration, two-thirds of all the Members of such House shall agree to passthe bill, it shall be sent, together with the objections, to the other House by which it

shall likewise be reconsidered, and if approved by two-thirds of all the Members of

that House, it shall become a law. In all such cases, the votes of each House shall be

determined byyeas ornays, and the names of the Members voting for or against shallbe entered in its Journal. The President shall communicate his veto of any bill to the

House where it originated within thirty days after the date of receipt thereof, otherwise,

it shall become a law as if he had signed it.


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

appropriation, revenue, or tariff bill, but the veto shall not affect the item or items to

which he does not object.Section 28. (1) The rule of taxation shall be uniform and equitable. The Congress shall

evolve a progressive system of taxation.

(2) The Congress may, by law, authorize the President to fix within specified limits,and subject to such limitations and restrictions as it may impose, tariff rates, importand export quotas, tonnage and wharfage dues, and other duties or imposts within the

framework of the national development program of the Government.

(3) Charitable institutions, churches and personages or convents appurtenant thereto,mosques, non-profit cemeteries, and all lands, buildings, and improvements, actually,

directly, and exclusively used for religious, charitable, or educational purposes shall be

exempt from taxation.

(4) No law granting any tax exemption shall be passed without the concurrence of amajority of all the Members of the Congress.

Section 29. (1) No money shall be paid out of the Treasury except in pursuance of an

appropriation made by law.(2) No public money or property shall be appropriated, applied, paid, or employed,

directly or indirectly, for the use, benefit, or support of any sect, church, denomination,

sectarian institution, or system of religion, or of any priest, preacher, minister, other

religious teacher, or dignitary as such, except when such priest, preacher, minister, ordignitary is assigned to the armed forces, or to any penal institution, or government

orphanage or leprosarium.

(3) All money collected on any tax levied for a special purpose shall be treated as aspecial fund and paid out for such purpose only. If the purpose for which a special

fund was created has been fulfilled or abandoned, the balance, if any, shall be

transferred to the general funds of the Government.

Section 30. No law shall be passed increasing the appellate jurisdiction of the SupremeCourt as provided in this Constitution without its advice and concurrence.

Section 31. No law granting a title of royalty or nobility shall be enacted.

Section 32. The Congress shall, as early as possible, provide for a system of initiativeand referendum, and the exceptions therefrom, whereby the people can directly

propose and enact laws or approve or reject any act or law or part thereof passed by the

Congress or local legislative body after the registration of a petition therefor signed byat least tenper centum of the total number of registered voters, of which every

legislative district must be represented by at least threeper centum of the registered

voters thereof.

Legislative power is vested in CongressExcept

referendum and initiative which is reserve to the people

Has the power to make, alter, repeal laws

Non-delegation of PowerExceptions

Tariff power to the President

Emergency power to the President

Power to the people


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Power to LGU

Power to administrative body

2 test of delegation of powerCompleteness testSufficient standard test

Legislative Department

Lecture Topic:

Privilege not to be questioned outside but can be questioned in congress

Privilege of arrest

Incompatible office

No member of legislative may hold office without forfeiting his elective office

Can congress practice profession? Not personally appear as counsel but can practice

professionCannot be employed in government

Executive officials - absolutely prohibited

Forbidden office

Congressman who created the office cannot be appointed to such office

created during his term

Not necessary that he authored it

Elective official

Not forfeited his seat upon filing of certificate of candidacy

Forfeiture upon taking an oathBarangay chairman not forfeited his seat upon filing certificate of candidacy, if loss.

Continue to hold office. If won, decide to take oath or not, if took oath, he forfeit hisseat as barangay chairman

Appointive officialFiled certificate of candidacy on elective position deemed resigned

Dec. 2009 - March 2010 - not deemed resigned

Suspension of not more than 60 days for disorderly behavior

Political question - congress will decide

2/3 votes of all members - justifiable questionCannot be expelled if did not get the 2/3 votes of all members

Books

Journal

1/5 of those present can require that particular matter be put in the journal

3rd reading must be place in the journal

Records - verbatim reproduction


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Electoral tribunal

HRET - within 10 days from proclamation

SET - within 10 days from proclamation

Congressman, senator, president and vice-president - no pre-proclamation cases

Exception

Correction of manifest errorComposition of board of directorsAuthenticity and due execution

9 members each

3 justices

6 senate/house based on proportionate representation

Filed an election protest at the same time part of electoral tribunal. Can be disqualified?

No. cannot be disqualified on the same reason that they are the protestee.

Congressman elected as electoral tribunal. Case pending before him is between his partymate and the other party. He voted against the party mate, the party wanted to recall

him because of disloyalty against the party. Can be recalled? No. the congressman who

sit is a justice and decide based on the case and not as a member of a political party

Commission on appointmentsOrganized within 30 days

12 senators and 12 congressman

Chairman is the senate president

Screens the nominee of the President

Inquiry in aid of legislation

Rules of procedure in 14th congress be used in 15th congress? No. not valid. Need topublish new set of rules again notwithstanding few of senators remained

Need to re-file again the bill

Where to publish? Official gazette or newspaper of general circulation

Rules on electronic evidence not applicable. Under constitutional law of due process

Sub poena to be valid

Required to state the proposed legislation

State the subject matter of the inquiry

Appearance

On initiative

With consent of the president

Inquiry in aid of legislation is initiated by congress

Bills

Bills originated from the House

Appropriations - revenue

Private bills - tariff

Bills of local appropriations - increase in private debt

Rider

Provision in general appropriations law which does not refer to any item

Appropriations sub rosa


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Not follow procedure in the appropriations with other agencies

Can transfer appropriations from savings

President

Senate president

Speaker of the house

Chairman of constitutional commissionChief justice

If the congress fails to appropriate a general appropriations law, adopt the appropriation

of preceding year

If given an appropriation for construction of bridges, no longer required to get the sameappropriations

Bills originated form senate are those not included in the bills originated in congress

Certified urgent bills

Certified by the president for immediate enactment

An urgent bill to meet the calamity or emergency

Passed 1, 2 and 3rd reading on the same day

Can it be questioned in SC? Political questionRights of the state

Right to sovereign and independence

Right to sovereign immunity

Right to territorial integrity

Right of legation

Right to territorial integrity

How to acquire territoryDiscovery and occupationPrescriptionCessionConquestAccretion

RA 9522 modifies archipelagic doctrinePresumed the island doctrineInclude the KGI and scaboroughRepeal all base line lawImplication: renounce the sabbah and some of kalayaan group of islandConflicts: resolve by ITLOS otherwise deemed adoptedInfirmity: unconstitutional against Art. 1 enclosed in the base line

BasisJurisdictionTerritorialNationalityProtectiveUniversality

Exception from territorial jurisdictionextraterritoriality - under treatyExterritoriality - international customs

Rome statute - established international criminal court


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Criminal offenses

Genocide

Crimes against humanity

Crimes against aggression

War crimes

Right of legationDiplomatic intercourse

Send and receive representative to other state

KindsDiplomatic- political affairs like ambassadorConsular - civil/commercial affairs like consul

Diplomatic v. consularFree from searches in document and premises while the second is free from

searches in document onlyDiplomatic immune from personal and professional act while the second is

free from suit from professional act

TreatiesRequisites

Treaty making capacity

Competence of representative

Consent freely given

Subject matter and object is lawful

Effective nationality principle - where the person mostly stay

Mode of acquiring citizenshipBirthNaturalizationRepatriation

RA 8171Former filipino woman married to foreignerNatural born filipino loss citizenship due to economic or political reason

RA 9225Dual citizenshipFormer natural filipino

Doctrine of state responsibility - the state can be held liable for anything thathappen to the foreigner

How to enforce liabilityExhaust local remediesIf futile, appeal in own country and his country will intercede in behalf of

the personState will negotiate with another state

Mode of treating alienDeportationReconductionExtradition

PurposeDeportation expels foreigner to protect the state


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Extradition benefits the requesting state

BasisDeportation based on unilateral actExtradition involves 2 countries with treaty

Effect upon alien

In deportation the alien can be in any countryIn Extradition the alien went to requesting state

Extradition

Double criminality - offense punishable in both countries

Specialty - offense must be included in the treaty otherwise refuse to surrender

Offense cannot be included in the statePoliticalReligious

Except assassination of head of state

Subsequent due process - arrest first before given due process

Bail is not allowed by the rules of court because extradition is not a criminal

proceeding but under international convention of political and civil rightsallows the right to bail. To afford remedies of the person deprive of liberty

Settlement of dispute

International dispute - 2 countries with disagreement because one took step not

acceptable to another state

Use of force mode -discourageException

Individual or collective self-defense

Enforcement action- sanctioned by security councilPeaceful mode

Negotiation

Inquiry

Tender of good office

Mediation

Conciliation

Arbitration

Judicial settlementHostile mode - cutting relationship with other state

Retortion - lawful

Embargo - sequester other

Freezing assets

Suspension of commercial transaction

Law on neutrality and war

Neutrality - applies in times of war. Governed to third party

Neutralization - brought by treaty stipulation. Making a state a neutral country

Election law

Ground for disqualification

Ground on petition to deny due course or cancel COC

Election crimeElectoral sabotage - punishable by life imprisonment


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Committed by board of canvasserIf in one doc votes tallied exceeds 5Kif several documents more than 10KNational position - added or substracted regardless of number resulted to

losing candidate

Producing fake election documents like returns, in digital formPost result within 24 hoursAccomplish the return outside the election presinct

NOTES:

PUBLIC INTERNATIONAL LAWSources of international law

Primary or direct sourcesformal sources because they are the methods by which

norms of international laws are created and recognizeda.International treaties and conventionsb.International customsc.General principles of law recognized by civilized nations

Secondary or indirect sourcessubsidiary means for the determination of the rules oflawa.Decisions of international tribunalsb.Writings of publicist of recognized reputationsc.Abstract reasoning, and the natural moral law

International become part of domestic law

Transformation - international law transform into domestic law through local legislation

Incorporationby constitutional declaration, international law is deemed to have theforce of domestic law

Hard law v. soft law

Hard law is used to designate a norm or rule of conduct accepted and recognized by

the international community of states as a whole, as a source of law binding onthem

Soft law has no binding force and pertains to a statement or declaration of principles

with moral on the conduct of states but no normative character and without intentto create enforceable obligations. Soft law is an expression of binding norms,

principles and practices that influences state behaviorGenerally accepted principles of international law

Refers to the norms of general or customary international law which are binding on all

states

By virtue of incorporation clause of the constitution, form part of the law of the land

even if they do not derive from treaty obligations

Customs or customary international law means a general and consistent practice ofstates followed by them from a sense of legal obligation

How may a conflict between international law and municipal law be resolved?

Basic rule is to reconcile or harmonize the apparent conflict, thereby giving effect to

both

If conflict is irreconcilable, on the domestic sphere, with the local court deciding:

oPhilippine constitution vs. international law principle: the constitution prevails


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oStatue vs. international law: they are of equal standing under doctrine ofincorporation. Which ever comes last in time will be upheld by the municipal

tribunal under the principle of lex posterior derogate priorioExercise of police power: municipal law prevailsoOther local legislation: when the case is brought before local courts, municipal

law will be upheld. Where the controversy is brought before internationalbodies or tribunals, invariably international law prevails

On international sphere, with international tribunal deciding: international law prevails

over municipal law. Rationale: international law provides the standards by which todetermine the legality of a states conduct.

National territory

Archipelagic doctrine emphasizes the unity of the land and waters by defining an

archipelago either as a group of islands and islets or body of waters studded with

islands

Territorial sea is an adjacent belt of sea with a breadth of twelve nautical miles

measured from the baselines of a state and over which a state has sovereigntyInternal waters are the waters on the landward side of baselines from which the breadth

of the territorial sea is calculated

Contiguous zone is a zone contiguous to the territorial sea and extends up to 12 nautical

miles from the territorial sea and over which the coastal state may exercise controlnecessary to prevent infringement of its customs, fiscal immigration or sanitary laws

and regulation within its territory or territorial sea

Exclusive economic zone is a zone extending up to 200 nautical miles from the baseline

of a state over which the coastal state has sovereign rights for the purpose ofexploring and exploiting, conserving and managing the natural resources, whetherliving or non-living, of the waters superjacent to the seabed and subsoil, and

sovereign right with regard to other activities for the economic exploitation andexploration of the zone, such as establishment and use of artificial islands

The new archipelagic baseline law of the Philippines is embodied in RA 9522. It adopts

the regime of islands formula in dealing with our claim over spratlys. The new law

would operate as a repeal of the sabbah provision of the previous baseline law, RA5446 resulting in the derogation of the other territories clause of the constitution.

The regime of islands doctrine as embodied in the new archipelagic baseline law of the

Philippines modifies the archipelagic principle by excluding two disputed territories,

namely, the kalayaan islands group and the scarborough shoal from the countrysarchipelagic baseline but they remain as parts of Philippine territory and considered

as regime baseline but they remain as part of Philippine territory and considered as

regime of islands consistent with article 121 of UNCLOS. It adopts a mix formulathat combines archipelagic baselines for the main archipelago and regime of islandsfor the disputed islands with the option to fix normal baselines in the islands we claim

in the disputed spratlys islands group. Under the regime of islands principle, baselines

will be drawn on an island-to-island basis rather than a package deal-type archipelago

State Sovereignty


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The doctrine of sovereign immunity of states is a universally recognized principle

which exempt a state from the jurisdiction of other states including the right not to be

sued in the courts of another without its consents or unless consent is waived. Stateimmunity includes not only exemption of the states property from taxation orattachment wherever the property is located but also the exemption of its public

vessels from being searched, detained, seized by any state. The basis of immunityfrom suits of a foreign state are the twin principles of independence and equality ofstates pursuant to the maxim par parem habet non imperium.

State Immunity from Suit

State immunity from suit means that the state may not be sued without its consent. But

consent to suit does not include consent to attachment of property for foreign

sovereign. The doctrine applies to foreign government. When a foreign state wishes

to invoke sovereign immunity, it secures an executive endorsement of its claim ofimmunity from the department of foreign affairs, and the determination made by the

executive department is a political question which is conclusive on Philippine

courts.it may also file a motion to dismiss on the ground of lack of jurisdiction overits person. The right to state immunity maybe waived but it does not mean that it is

admitting liability.

2 kinds of sovereign immunity

oAbsolute immunityall acts of state, be they governmental or proprietary, areprotected by sovereign immunity

oRestrictive immunitya state liable to suit only in the exercise of its proprietaryacts and does not apply to acts performed in its sovereign or governmental

function

Principle of Restrictive State Immunity from Suit

State immunity from suit extends only to governmental acts (jure imperii) and does

not cover private, commercial and proprietary act (jure gestiones). The restrictiveapplication of state immunity is proper only when the proceedings arise out of

commercial transactions of the foreign sovereign, its commercial activities or

economic affairs. A state maybe said to have descend to the level of an individualand can thus be deemed to have tacitly given its consent to be sued only when it

enters into business contracts. Ir does not apply where the contracts relate to the

exercise of its sovereign function

Covered by the doctrine of state immunity

oA state enjoys immunity from the exercise of jurisdiction by another state,unless it has given consent, waived its immunity, or voluntarily submitted to

the jurisdiction of the court concerned

oThe head of state, who is the personification of the state, and to diplomaticrepresentatives, in porder to uphold their dignity as representatives of their

respective states and to allow them free and unhampered exercise of theirfunctions

oThe united nations, its organs, specialized agencies and other internationalorganizations and its officers shall enjoy privileges and immunities as arenecessary for the independent exercise of their functions

When is a suit against a public official deemed to be suit against state?


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While the doctrine of state immunity appears to prohibit only suits against the state

without its consent, it is also applicable to complaints filed against public officials for

acts allegedly done in the performance of their official duties. The rule is that the suitmust be regarded as one against the state where the satisfaction of the judgment

against the public official concerned will require the state to perform a positive act,

such as appropriation of the amount necessary to pay the damages awarded to theplaintiff. The rule does not apply where the public official is clearly being sued foracts that are unlawful and injurious tot eh rights of others. Public officials are not

exempt, in their personal capacity, from liability arising from the acts committed in

bad faith. Neither does it apply where the public official is clearly being sued not inhis official capacity but in his personal capacity, although the acts complained of

may have been committed while he occupied a public position

Act of State Doctrine

A doctrine emanating from the right of equality among nations which means that a state

cannot, in anyway, question the validity of the official acts of another state insofar as

these acts are performed within the sphere of the states own jurisdiction and notcontrary to accepted rules of public international law. The act of state doctrine is one

of the methods by which states prevents their national courts from deciding disputes

which relate to the internal affairs of another state, the other two being immunity andnon-justiciability.

International Human Rights

International human rights are liberties or freedoms, immunities and benefits accepted

as guaranteed rights and giving rise to obligations under international law. Under UN

charter, the international community of states has recognized the general obligation

on universal respect for, and observance of, human rights and fundamental freedoms

for all without distinction as to race, sex, language or religion.Human rights may either be individual rights or collective or national rights.

oFirst generation human rightscivil and political rightsoSecond generationeconomic, social and cultural rightsoThird generationfight to peace, healthy environment and the right to

development

International Bill of Human Rights is the designation used to refer to three instrument

of the international protection of human rights, taken together, namely:oThe universal declaration of human rights based on the human rights provisions

of the UN charteroThe international covenant of civil and political rights

oThe international covenant on economics, social and cultural rightsUnder international law, may a state derogate from the obligation in treaties for the

protection of human rights?

YES. Art 4(1) or the derogation clause of the international covenant on civil and

political rights, provides that in time of public emergency which threatens the life ofthe nation, and the existence of which is officially proclaimed, the state parties to the

present covenant to the extent strictly required by the exigencies of the situation,

provided such measures are not inconsistent with their obligations under international


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law and do not involve discrimination solely on the ground of race, color, sex,

language, religion or social origin

The derogation clause does not apply to the following human rights:

oRight to lifeoRight not to be subjected to torture or to cruel, inhuman or degrading treatment

or punishmentoRight not to be held in slavery or in servitudeoRight to be imprisoned merely on ground of inability to fulfill a contractual

obligationoRight not o be held guilty under ex post facto lawoRight to be recognized everywhere as a person before the lawoRight to freedom of thought, conscience and religion

Settlement of International disputes

Does the use of war or force by a state against another violate international law?

YES. Art 2(4) in the UN charter prohibits the use of force in the relations of state by

providing that all member of the UN shall refrain in their international relations fromthreat or use of force against the territorial integrity or political independence of any

state, or in any other manner inconsistent with the purposes of the UN

May force be used without violating the UN charter?

YES. Instances are:oRight o individual or collective defenseoEnforcement measure involving the use of armed force by the security counciloEnforcement measure by regional arrangement as authorized by the security

council

Role of ICJ in international relations

The ICJ may decide on interpretation of treaties, any question on international law,

the existence of facts constituting breach of international obligations, and the natureor extent of the reparation to be made for the breach of international obligation

2 limitations on the jurisdiction of ICJ

oOnly states maybe parties in cases before itoThe consent of the parties is needed for the court to acquire jurisdiction in

accordance with the optional jurisdiction clause

In case of an outbreak of armed conflict between or among nations what steps maybe

undertaken by the UN Security Council to settle disputes?

In case of armed conflict among nations, the UN Security Council may undertake

preventive action and enforcement actionoPreventive action consists of provisional measures to prevent a conflict from

worsening and may involve the deployment of peacekeeping or observermissions

oEnforcement action involves the deployment of air, sea and land forces, or inthe institution of a blockade. The only limitation in the exercise of the UNSC

power to undertake preventive and enforcement actions is that the disputemust be international and not domestic in character

Jurisdiction of the International Criminal Court (ICC)

oCrime of genocide


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oCrime against humanityoWar crimesoCrime of aggression

Extradition and Deportation

EXTRADITION DEPORTATIONAccording to

purpose

Effected for the benefit of the

state to which the person is beingextradited will be surrendered

because he is a fugitive criminal

in that state

Effected for the protection

of the state expelling thealien

According to basis Extradition treaty or upon request

of another state

Unilateral act of the state

expelling an alien

According to its

effects on aliens

Alien will be surrendered to the

state asking for his extradition

Sent to state willing to

accept him

Principle of double criminality

Extradition is available only when the act is an offense in the two countries involve inextradition. The purpose of the principle of double criminality is to ensure each state

that it can rely on reciprocal treatment and that no state will use its processes tosurrender a person for contract which it does not characterized as criminal

Extradition treaty is not a criminal statute. Therefore, prohibition against ex post facto

law does not apply

Procedure for extradition

oUpon receipt of the petition for extradition and its supporting documents, thejudge must study them and make, as soon as possible, a prima facie finding

whether they are sufficient in form and in substance, they complied with the

extradition treaty and law and the person sought is extraditable.oIf the presence of prima facie case is determined, then the magistrate must

immediately issue a warrant for the arrest of extradite, who is at the same time

summoned to answer the petition and to appear at scheduled summaryhearings.

oAfter a potential extradite has been arrested or placed under the custody of thelaw, bail may be applied for and granted as an exception, only upon clear andconvincing evidence showing

Applicant will not be a flight risk or danger to the community

Exist special, humanitarian or compelling circumstances

Potential extradites are entitled to the rights of due process and to fundamental fairness

Right to bail and due process in extradition proceedings

oThe SC ruled that potential extradite maybe granted bail on the basis of clearand convincing evidence that the person is not a flight risk and will abide withall the orders and processes of the extradition court

oUnder international convention on civil and political rights, under obligation tomake available to every person under detention such remedies whichsafeguards their fundamental rights to liberty.

oUniversal declaration of human rights applies to deportation cases, there is noreason why it cannot be invoked in extradition cases


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oIf there is no extradition treaty between the state of refuge and the state seekingthe fugitives return, the state may still secure his surrender in the interest of

international comity or courtesy

Principle of Asylum

oThe power of the state to allow an alien who has sought refuge from prosecution

or persecution to remain within the territory and under its protectionoEither be:

oTerritorialwhere it exist only if stipulated in a treaty or justified byestablished usage and depends on the liberal attitude of the receiving

state on grounds of territorial supremacyoDiplomatic- if granted only by virtue of treaty stipulation, or where

established usage allow it, or when the life or liberty of the person is

threatened by imminent violence

Treaties

May a treaty or conventional rule qualify as a norm jus cogens character?

NO. a treaty or conventional rule may not qualify as a jus cogens because such normis binding on all states, whereas a treaty rule binds only the states that are parties to itand even in the event that all states are parties to a treaty, they are entitled to

terminate or withdraw from the treaty. A jus cogens norm is characterized as a norm

of general international law which by its nature is binding on every state

Can a treaty or international agreement be invalidated by Philippine courts or amended

by subsequent law?

YES. The constitution of the Philippines has clearly settled that an internationalagreement maybe invalidated by Philippine courts. Sec 2 of Art VIII thereof provides

that the SC may not be deprived of its jurisdiction to review, revise, reverse, modifyor affirm on appeal, certiorari or writ of error as the law or the rules of court may

provide, final judgments and decrees of inferior courts in all cases in which theconstitutionality or validity of any treaty, law or ordinance or executive order orregulation is in question. In other words, the court authorizes the nullification of a

treaty, not only when it conflicts with the fundamental law, but, also, when it runs

counter to an act of congress

May treaty violate international law?

YES. A treaty may violate international law if it conflicts with preemptory norm or

jus cogens of international law. Jus cogens norm is defined as a norm of general

international law accepted and recognized by the international community as a wholeas a norm from which no derogation is permitted and which can be modified only by

a subsequent norm of general international law having the same character.

May a state party to a treaty by unilateral act declare it terminated or withdrawn from it?NO. even on grounds provided for by the Vienna convention on the Law of the

treaties, either of these cannot be done unilaterally. This convention requires aprocedure, beginning with notification to other parties to the treaty as to the measure

it proposes to take

May a non-signatory state become a party to a treaty?

YES. A non-signatory state may become a party to a treaty through the process of

adhesion. Also, if the treaty is merely a formal expression of customary


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international law, or where the treaty expressly extends benefits to non-signatory

states, states not originally parties to the agreement may become bound

2010 prebar notes poli

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