public international law

I press toward the mark for the prize of the high calling of God in Christ Jesus. - Philippians 3:14

Prepared by: ATTY. MIGUEL LICERALDE

PUBLIC OFFICER

General Principles

Public Office defined “A public office is the right, authority, and duty created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercise by him for the benefit of the public ([Mechem Public Offices and Officers,] Sec. 1). Aparri v. Court of Appeals, 127 SCRA 231, (1984)

No vested right in a public office There is no such thing as a vested interest or an estate in an office, or even an absolute right to hold office. Excepting constitutional offices which provide for special immunity as regards salary and tenure, no one can be said to have any vested right in an office or its salary (42 Am. Jur. 881).”

Creation of an Office by the Constitution, Statute or by

authority of law

Entry to the Civil Service by election or appointment

Who is a de facto officer?A de facto officer is “one who has the reputation of being the officer he assumes and yet is not a good officer in point of law.” He is one who is in possession of the office and discharging its duties under color of authority, and by color of authority is meant that derived from an election or appointment, however irregular or informal, so that the incumbent is not a mere volunteer.

A rightful incumbent (de jure officer) of a public office may recover from a de facto

officer the salary received by the latter during the time of his wrongful tenure. Monroy v. Court of Appeals, 20 SCRA 620, 626 (1967).

A de facto officer, not having a good title, takes the salaries at his risk and must, therefore, account to the de jure officer for whatever salary he received during the period of his wrongful tenure. General Manager, Philippine Ports Authority (PPA) v. Monserate, 381 SCRA 200, 213 (2002). “[I]n cases where there is no de jure officer, a de facto officer who, in good faith, has had possession of the office and has discharged the duties pertaining thereto, is legally entitled to the emoluments of the office, and may in an appropriate action recover the salary, fees and other compensations attached to the office.” Civil Liberties Union v. Executive Secretary, 194 SCRA 317

ProblemARIMAO, a supervisor, was promoted and appointed as Director of the DECS-ARMM in March 1995, and commenced performing function of the office. After four months, TAHER was also appointed to the position of supervisor to succeed ARIMAO. Ultimately, appointment of ARIMAO was disapproved for lack of qualifications by a resolution of the Civil Service Commission which became final on October 17, 1998. Likewise, ARIMAO was declared AWOL and dropped from the rolls. May TAHER continue to occupy the position of supervisor? ANSWER: When the promotional appointment of ARIMAO was disapproved, TAHER’s appointment as supervisor was likewise disapproved. Absent any showing that she has been reappointed to the position, she cannot lay a valid claim thereto. …….Section 13, Rule 6 of the Omnibus Rules Implementing Book V, E.O. 292, provides: “All appointments involved in a chain of promotions must be submitted simultaneously for approval by the Commission. The disapproval of the

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appointment of a person proposed to a higher position invalidates the promotion of those in lower positions and automatically restores them to their former positions. However, the affected persons are entitled to the payment of salaries for services actually rendered at a rate fixed in their promotional appointments.” [Arimao vs. Taher, 498 SCRA 74(2006)]

CIVIL SERVICE COMMISSIONScopeIncluding GOCCs with original charters

Appointments to civil service- only according to merit and fitness thru competitive examinations, EXCEPT: policy-determining, primarily confidential, or highly technical positions

Non competitive positions-1). policy determining- duty to formulate method of action for the govt or any of its subdivisions.

2). Primarily confidential- denotes not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which insures freedom of intercourse without embarrassment or freedom from misgivings or betrayals of personal trust on confidential matters of state.

“proximity rule”-in determining primarily confidential positions- where the position occupied is remote from that of the appointing authority, the element of trust between them is no longer predominant. Grino v. CSC, 194 SCRA 548 (1991)

Highly technical- "to possess a technical skill or training in the supreme or superior degree

One who is next-in-rank is entitled to preferential consideration for promotion to the higher vacancy but it does not necessarily follow that he and no one else can be appointed. The rule neither grants a vested right to the holder nor imposes a ministerial duty on the appointing authority to promote such person to the next higher position. [Santiago, Jr. vs. Civil Service Commission, 178 SCRA 733(1989)]

Executive or legislative declaration of the position as policy determining, primarily confidential or highly technical, not conclusive upon the courts. (PAGCOR v. Rilloraza, 6/25/01)

Extent of CSC powers not allowed to disapprove appointment and require another whom it believes to be more qualified. Central Bank v. CSC, 4/10/89; neither can it change the permanent appointment into a temporary one. Luego v. CSC, 143 SCRA 327

Concurrent jurisdiction of CSC with BORAll members of the civil service are under the jurisdiction of the CSC, unless otherwise provided by law. Being a non-career civil servant does not remove respondent from the ambit of the CSC. Career or non-career, a civil service official or employee is within the jurisdiction of the CSC. In University of the Philippines v. Regino, this Court struck down the claim of exclusive jurisdiction of the UP BOR to discipline its employees. In the more recent case of Camacho v. Gloria, this Court lent credence to the concurrent jurisdiction of the CSC when it affirmed that a case against a university official may be filed either with the university’s BOR or directly with the CSC.

Security of tenure

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"for cause provided by law" covers both procedural and substantive (Delos Santos v. Mallare, supra)

Non-competitive positions entitled to security of tenure, except those involving primarily confidential. (Hernandez v. Villegas, 14 SCRA 544 [1965]

"designation" of Manager for PTA (whose appointment should be made by the President) made by the Secretary of Tourism is not a valid appointment, hence no security of tenure. (Binamira v. Garrucho July 23, 1990)

Abolition of office-does not violate security of tenure if:Done in Good Faith-Briones v. Osmena, 104 Phil 588(bad faith) ;Dario v. Mison, 176 SCRA 84;

-Must not be for personal or political reasons and not in violation of law (Roque v. Ericta, 53 SCRA 156 [1973])

-abolition and creation of office having the same functions; Sec. 35 of RA 6715 -declaring all positions of the Commissioners and Labor Arbiters of the NLRC unconstitutional- (Mayor v. Macaraig, 3/5/91)

Demotion for lack of evidence and proper notice violates security of tenure and due process. Gen. Manager, PPA v. Monserate, Gr No. 129616, 4/17/02

Transfers without consent of the appointed-not merely assigned- to a particular station are not allowed. CARINO vs. Executive Director, GR 144493, 4/9/02;

Even in re-assignment, if it is indefinite, (lasting ten years), is removal without just cause. Pastor v. City of Pasig, GR No. 146873, 5/9/02

-no security of tenure in temporary appointments (Mendiola v. Tancinco, 52 SCRA 66; BUT may not be removed to bust faculty union-PLM v. CSC, 241 SCRA 506

In Larin vs. Executive Secretary 280 SCRA 713. Being a presidential appointee, he comes under the direct disciplining authority of the President.

Doctrine of Condonation

Pascual v. Hon. Provincial Board of Nueva Ecija, 106 Phil. 406 (1959) issued the landmark ruling that prohibits the disciplining of an elective official for a wrongful act committed during his immediately preceding term of office. The Court explained that “[t]he underlying theory is that each term is separate from other terms, and that the reelection to office operates as a condonation of the officer’s previous misconduct to the extent of cutting off the right to remove him therefor.” [Salumbides Jr. vs. Office of the Ombudsman, 619 SCRA 313(2010)]

The doctrine does not apply to re-appointment to a non-career position. A parallel question was involved in Civil Service Commission v. Sojor, 554 SCRA 160 (2008), where the Court found no basis to broaden the scope of the doctrine of condonation: Lastly, We do not agree with respondent’s contention that his appointment to the position of president of NORSU, despite the pending administrative cases against him, served as a condonation by the BOR of the alleged acts imputed to him. The doctrine this Court laid down in Salalima v. Guingona, Jr., 257 SCRA 55 (1996), and Aguinaldo v. Santos, 212 SCRA 768 (1992), are inapplicable to the present circumstances. Respondents in the mentioned cases are elective officials, unlike respondent here who is an appointed official. Indeed, election expresses the sovereign will of the people. Under the principle of vox populi est suprema lex, the re-election of a

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public official may, indeed, supersede a pending administrative case. The same cannot be said of a re-appointment to a non-career position. There is no sovereign will of the people to speak of when the BOR re-appointed respondent Sojor to the post of university president. [Salumbides Jr. vs. Office of the Ombudsman, 619 SCRA 313(2010)]

Prohibition against electioneering and Partisan Political Activity-includes every form of solicitation of the electors vote in favor of specific candidate. (People v. De Venecia, 14 SCRA 864. Includes contribution of money for election purposes and distribution of handbills.

The prohibition notwithstanding, civil service officers and employees are allowed to vote, as well as express their views on political issues, or mention the names of certain candidates for public office that they support. [Quinto vs. Commission on Elections, 613 SCRA 385(2010)]

Deemed resigned provisions

Incumbent Appointive Official.—Under Section 13 of RA 9369, which reiterates Section 66 of the Omnibus Election Code, any person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or-controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy.

Incumbent Elected Official.—Upon the other hand, pursuant to Section 14 of RA 9006 or the Fair Election Act, which repealed Section 67 of the Omnibus Election Code and rendered ineffective Section 11 of R.A. 8436 insofar as it considered an elected official as resigned only upon the start of the campaign

period corresponding to the positions for which they are running, an elected official is not deemed to have resigned from his office upon the filing of his certificate of candidacy for the same or any other elected office or position. In fine, an elected official may run for another position without forfeiting his seat. [on MR upheld in Quinto vs. Commission on Elections, 613 SCRA 385(2010)], citing Fariñas, et al. v. Executive Secretary, et al. G.R. No. 147387, December 10, 2003, 417 SCRA 503.

-prohibition does not apply to department secretaries as they are occupying political positions as alter egos of the President. Santos v. Yatco, 106 Phil

Sandiganbayan

Salary Grade, not the only determinative factor in Sandiganbayan’s jurisdiction. Petitioner claims that she is not a

public officer with Salary Grade 27; she is, in fact, a regular tuition fee-paying student. This is likewise bereft of merit. It is not only the salary grade that determines the jurisdiction of the Sandiganbayan. The Sandiganbayan also has jurisdiction over other officers enumerated in P.D. No. 1606. In Geduspan v. People, We held that while the first part of Section 4(A) covers only officials with Salary Grade 27 and higher, its second part specifically includes other executive officials whose positions may not be of Salary Grade 27 and higher but who are by express provision of law placed under the jurisdiction of the said court. Petitioner falls under the jurisdiction of the Sandiganbayan as she is placed there by express provision of law. …Section 4(A)(1)(g) of P.D. No. 1606 explicitly vested the Sandiganbayan with jurisdiction over Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations.

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Petitioner falls under this category. As the Sandiganbayan pointed out, the BOR performs functions similar to those of a board of trustees of a non-stock corporation. By express mandate of law, petitioner is, indeed, a public officer as contemplated by P.D. No. 1606.

Moreover, it is well established that compensation is not an essential element of public office. At most, it is merely incidental to the public office.

Delegation of sovereign functions is essential in the public office. An investment in an individual of some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public makes one a public officer.

The administration of the UP is a sovereign function in line with Article XIV of the Constitution. UP performs a legitimate governmental function by providing advanced instruction in literature, philosophy, the sciences, and arts, and giving professional and technical training. Moreover, UP is maintained by the Government and it declares no dividends and is not a corporation created for profit.[Serana vs. Sandiganbayan, 542 SCRA 224(2008)]

IMPEACHMENT

Grounds for impeachment:Culpable violation of the Constitution, Treason, Bribery, Graft and Corruption Other high crimes-(serious and enormous a nature as to strike at the very life or the orderly workings of the government), Betrayal of Public Trust (betrayal of public interest, inexcusable negligence of duty, tyrannical abuse of power, breach of official duty by malfeasance or misfeasance, cronyism, favoritism, etc. to the prejudice of public

interest and which tend to bring the office into disrepute, including obstruction of justice. (Concom II Record, p. 272, 286)

(for purposes of the one-year ban) Impeachment is deemed initiated by referral of the impeachment complaint to the appropriate house committee. Francisco v. HOUSE OF REP., GR 160261, 11/10/03; two complaints referred to the same charges, considered as one complaint.(Gutierrez v. House of Rep. Committee on Justice, GR No. 193459 , 2/15/01;

OMBUDSMAN

Shared investigative jurisdiction of the Ombudsman Respondent argues that it is the Ombudsman who has primary jurisdiction over the administrative complaint filed against him. Notwithstanding the consolidation of the administrative offense (non-declaration in the SSAL) with the criminal complaints for unexplained wealth (Section 8 of R.A. No. 3019) and also for perjury (Article 183, Revised Penal Code, as amended) before the Office of the Ombudsman, respondent’s objection on jurisdictional grounds cannot be sustained. Section 12 of Article XI of the 1987 Constitution mandated the Ombudsman to act promptly on complaints filed in any form or manner against public officials or employees of the Government, or any subdivision, agency, instrumentality thereof, including government-owned or controlled corporations. Under Section 13, Article XI, the Ombudsman is empowered to conduct investigations on his own or upon complaint by any person when such act appears to be illegal, unjust, improper, or inefficient. He is also given broad powers to take the appropriate disciplinary actions against erring public officials and employees.

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The investigative authority of the Ombudsman is defined in Section 15 of R.A. No. 6770: “SEC.15.Powers, Functions and Duties.—The Office of the Ombudsman shall have the following powers, functions and duties: (1)Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over, at any stage, from any investigatory agency of Government, the investigation of such cases; x x x x” (Emphasis supplied.)

Such jurisdiction over public officers and employees, however, is not exclusive. “This power of investigation granted to the Ombudsman by the 1987 Constitution and The Ombudsman Act is not exclusive but is shared with other similarly authorized government agencies, such as the PCGG and judges of municipal trial courts and municipal circuit trial courts. The power to conduct preliminary investigation on charges against public employees and officials is likewise concurrently shared with the Department of Justice. Despite the passage of the Local Government Code in 1991, the Ombudsman retains concurrent jurisdiction with the Office of the President and the local Sanggunians to investigate complaints against local elective officials.”(Emphasis supplied.)

Respondent who is a presidential appointee is under the disciplinary authority of the OP. Executive Order No. 12 dated April 16, 2001 created the PAGC which was granted the authority to investigate presidential and also non-presidential employees “who may have acted in conspiracy or may have been involved with a presidential appointee or ranking officer mentioned x x x.”On this score,

we do not agree with respondent that the PAGC should have deferred to the Ombudsman instead of proceeding with the administrative complaint in view of the pendency of his petition for certiorari with the CA challenging the PAGC’s jurisdiction. Jurisdiction is a matter of law. Jurisdiction once acquired is not lost upon the instance of the parties but continues until the case is terminated. [Flores vs. Montemayor, 651 SCRA 396(2011)]Even if the complaint concerns an act of the public official or employee which is not service-connected, the case is within the jurisdiction of the Ombudsman.

—Section 19 of R.A. No. 6770 also states that the Ombudsman shall act on all complaints relating, but not limited, to acts or omissions which are unfair or irregular. Thus, even if the complaint concerns an act of the public official or employee which is not service-connected, the case is within the jurisdiction of the Ombudsman. The law does not qualify the nature of the illegal act or omission of the public official or employee that the Ombudsman may investigate. It does not require that the act or omission be related to or be connected with or arise from the performance of official duty.

Misconduct; when grave or simple—Misconduct is a transgression of some established and definite rule of action, more particularly, unlawful behavior or gross negligence by a public officer. The misconduct is grave if it involves any of the additional elements of corruption, willful intent to violate the law or to disregard established rules, which must be proved by substantial evidence. Otherwise, the misconduct is only simple.

Conduct Unbecoming a Public Officer; Unbecoming conduct means improper performance and applies to a broader range of transgressions of rules not only of social

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behavior but (also) of ethical practice or logical procedure or prescribed method. —For reneging on her promise to return aforesaid amount, petitioner is guilty of conduct unbecoming a public officer. x x x unbecoming conduct means improper performance and applies to a broader range of transgressions of rules not only of social behavior but of ethical practice or logical procedure or prescribed method. [Samson vs. Restrivera, 646 SCRA 481(2011)]

Misconduct differentiated from Disgraceful and Immoral Conduct Misconduct means intentional wrongdoing or deliberate violation of a rule of law or standard of behavior, especially by a government official. To constitute an administrative offense, misconduct should relate to or be connected with the performance of the official functions and duties of a public officer. In grave misconduct as distinguished from simple misconduct, the elements of corruption, clear intent to violate the law or flagrant disregard of established rule, must be manifest. Corruption as an element of grave misconduct consists in the act of an official or fiduciary person who unlawfully and wrongfully uses his station or character to procure some benefit for himself or for another person, contrary to duty and the rights of others.

In the present case, Villanueva’s offense was in no way connected with the performance of his functions and duties as a public officer. Sure, his office was used as a venue for the commission of the offense and definitely, his offense speaks despicably of his character as a man but it in no way evinced any failure on his part to discharge his duties as a public officer. Yes, Villanueva’s offense is gravely immoral and reprehensible but it falls short of grave misconduct as defined by law. To determine whether a public officer committed misconduct, it is necessary to separate the character of the man from the

character of the officer. Here, Villanueva’s transgression laid bare the values of his inner being but did not expose any of his shortcoming as a public officer. Who Villanueva is and what he believes in are inconsequential in concluding whether his misdemeanor amounts to misconduct. Rather, what is material is whether Villanueva properly discharged his public functions which we believe in no way was compromised or affected by the commission of his offense. However, as correctly found by the Commission, we believe that Villanueva is guilty of Disgraceful and Immoral Conduct for having engaged in an illicit affair. In a catena of cases, the Court has ruled that government employees engaged in illicit relations are guilty of “disgraceful and immoral conduct” for which he/she may be held administratively liable. [Villanueva vs. Court of Appeals, 495 SCRA 824(2006)]

What is the nature of acts or omissions of public officer/employee that the ombudsman may investigate? Answer: Acts or omissions that appear to be ILLEGAL, UNJUST, IMPROPER, OR INEFFICIENT. (Par. 1, Sec. 13 of Article XI, Constitution)

Is rape covered by the investigative power of ombudsman? Answer: Certainly. Rape is illegal and a crime.

What are the instances when the court may interfere by certiorari with the exercise of Ombudsman’s power to determine probable cause in preliminary investigation? ANSWER- In Mendoza-Arce v. Office of the Ombudsman (Visayas) 380 SCRA 325 (2002), a writ of certiorari may issue in any of the following instances: 1. When necessary to afford adequate protection to the constitutional rights of the accused; 2. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions; 3. When there is a prejudicial question that is sub-

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judice; 4. When the acts of the officer are without or in excess of authority; 5. Where the prosecution is under an invalid law, ordinance or regulation; 6. When double jeopardy is clearly apparent; 7. Where the court has no jurisdiction over the offense; 8. Where it is a case of persecution rather than prosecution; 9. Where the charges are manifestly false and motivated by the lust for vengeance; 10. When there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied.

Meaning of “suspension of not more than one month’s salarySection 27 of RA 6770 provides that any order, directive, or decision of the Office of the Ombudsman imposing the penalty of public censure or reprimand, and suspension of not more than one month’s salary, shall be final and unappealable. In the instant case, the penalty imposed by the Office of the Ombudsman after finding herein respondents guilty of simple neglect of duty was “fine equivalent to their one (1) month’s pay.” Valid? Answer. Following our ruling in Herrera v. Bohol, 422 SCRA 282 (2004) the penalty imposed upon respondents, which is fine equivalent to one (1) month salary, is included in the phrase “suspension of not more than one month’s salary,” thus: “There is no penalty as suspension of salary in our administrative law, rules and regulations. Salaries are simply not suspended. Rather it is the official or employee concerned who is suspended with a corresponding withholding of salaries following the principle of “no work, no pay.” Or, an official or employee may be fined an amount equivalent to his or her monthly salary as penalty without an accompanying suspension from work. Preventive suspension: by ombudsman (6 months) vs. executive officials (60 days) Under Section 24 of the Ombudsman Act of 1989, it provides “preventive suspension shall

continue until the case is terminated by the Office of the Ombudsman but not more than six months, without pay. ” Does this violate the equal protection considering preventive suspension given by executive officials is limited to sixty (60) days. ANSWER: [ while it is argued] that there is no substantial distinction between preventive suspensions handed down by the Ombudsman and those imposed by executive officials. On the contrary, there is a world of difference between them. The Constitution has endowed the Ombudsman with unique safeguards to ensure immunity from political pressure. Among these statutory protections are fiscal autonomy, fixed term of office and classification as an impeachable officer. This much was recognized by this Court in the earlier cited case of Garcia v. Mojica. Moreover, there are stricter safeguards for imposition of preventive suspension by the Ombudsman. The Ombudsman Act of 1989 requires that the Ombudsman determine: (1) that the evidence of guilt is strong; and (2) that any of the following circumstances are present: (a) the charge against such officer or employee involves dishonesty, oppression, or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondent's continued stay in office may prejudice the case filed against him. MIRANDA vs. SANDIGANBAYAN, OFFICE OF THE OMBUDSMAN, [G.R. No. 154098. July 27, 2005.]

Power to appoint its officials includes the power to specify qualification standards May the Civil Service Commission disapprove the qualification standards set by the Ombudsman for the latter’s subordinates and personnel? ANSWER: NO. Under the Constitution, the Office of the Ombudsman is an independent body. As a guaranty of this independence, the Ombudsman has the power to appoint all officials and employees of the Office of the Ombudsman, except his

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deputies. This power necessarily includes the power of setting, prescribing and administering the standards for the officials and personnel of the Office.

To further ensure its independence, the Ombudsman has been vested with the power of administrative control and supervision of the Office. This includes the authority to organize such directorates for administration and allied services as may be necessary for the effective discharge of the functions of the Office, as well as to prescribe and approve its position structure and staffing pattern. Necessarily, it also includes the authority to determine and establish the qualifications, duties, functions and responsibilities of the various directorates and allied services of the Office. This must be so if the constitutional intent to establish an independent Office of the Ombudsman is to remain meaningful and significant.

Qualification standards are used as guides in appointment and other personnel actions, in determining training needs and as aid in the inspection and audit of the personnel work programs. They are intimately connected to the power to appoint as well as to the power of administrative supervision. Thus, as a corollary to the Ombudsman's appointing and supervisory powers, he possesses the authority to establish reasonable qualification standards for the personnel of the Office of the Ombudsman. OFFICE OF THE OMBUDSMAN vs. CSC, EN BANC, [G.R. No. 162215. July 30, 2007.]

ADMINISTRATIVE LAW

Quasi-Judicial power

What is meaning of “administrative res judicata?”Answer: But jurisprudence has also recognized the rule of administrative res judicata: “the rule which forbids the

reopening of a matter once judicially determined by competent authority applies as well to the judicial and quasi-judicial facts of public, executive or administrative officers and boards acting within their jurisdiction as to the judgments of courts having general judicial powers . . . It has been declared that whenever final adjudication of persons invested with power to decide on the property and rights of the citizen is examinable by the Supreme Court, upon a writ of error or a certiorari, such final adjudication may be pleaded as res judicata.”20 [National Housing Authority vs. Almeida, 525 SCRA 383(2007), citing Brillantes v. Castro, 99 Phil. 497, 503 (1956)]

Judicial recourse and review

What is the Doctrine of Primary Jurisdiction? Answer: “If the case is such that its determination requires the expertise, specialized skills and knowledge of the proper administrative bodies because technical matters or intricate questions of facts are involved, then relief must first be obtained in an administrative proceeding before a remedy will be supplied by the courts even though the matter is within the proper jurisdiction of a court.” (Industrial Enterprises, Inc. vs. CA., 184 SCRA 426)

What is the Doctrine of Exhaustion of Administrative Remedies? Answer: The doctrine is such that “If a remedy within the administrative processes is available, that must exhausted first before resort to the courts may be had.”

What are the exceptions to the rule on exhaustion?

Answer: Exceptions to such rule are: when there is violation of due

process; issue involved is purely legal;

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the administrative action is patently illegal amounting to lack or in excess of jurisdiction;

the administrative agency is estopped;

there is irreparable injury; there is no plain, speedy and

adequate remedy; respondent is an alter-ego of the

president; when exhaustion of administrative

remedies would be unreasonable.; there is urgency of judicial

intervention

What is the doctrine of finality of administrative action?Answer: …..the court does not interfere, as a rule, with administrative action prior to its completion or finality. It is only after judicial review is no longer premature that we ascertain in proper cases whether the administrative findings are not in violation of law, whether they are free from fraud or imposition and whether they find substantial support from the evidence. [Matienza vs. Abellera, 162 SCRA 1(1988)]

ELECTION LAW

COMELEC-Membership Two conditions for workability of Rotational system? (1) that the terms of the first three (3) Commissioners should start on a common date, and, (2) that any vacancy due to death, resignation or disability before the expiration of the term should only be filled only for the unexpired balance of the term. Gaminde vs. Commission on Audit, 347 SCRA 655(2000), citing Republic v. Imperial, 96 Phil. 770 (1955) designation or appointment of commissioners in acting capacity unconstitutional as it impairs the

independence of the Commission. Brillantes v. Yorac, 192 SCRA 358

Ad intérim appointments of Chairman and commissioners of COMELEC not a violation. A renewal of ad interim appointments in case of by-pass by the Commission on Appointment not a violation of the Constitution. MATIBAG vs. BENIPAYO, GR 149036, 4/2/02

INDEPENDENCE Art. IX-A, Art. IX-C, Constitution RA 9189 (absentee voting law) authorizes Congress to review COMELEC’s implementing rules and regulations, valid? ANSWER: It violates the constitutional guaranty of independence of the constitutional commissions. Macalintal vs. Comelec et al., GR No. 157013, July 10, 2003.

ADMINISTRATIVE POWER

Comelec has jurisdiction over actions to annul the result of plebiscites-BUAC vs. Comelec, G.R. No. 155855, January 26, 2004

Power to regulate media, applies in plebiscites and referenda. (UNIDO V. COMELEC, 104 SCRA 17 [1981]); the power to regulate media franchise holders does not include regulation of expression of opinion of writers in a plebiscite or referendum. (SANIDAD V. COMELEC, 1-29-90). Radio and television broadcasting companies may be required to give free air time for political advertisements during election period. (TELEBAB vs. COMELEC, 289 SCRA 33)

Power of Contempt not available in the exercise of administrative powers of COMELEC. (Guevarra v. Comelec, 104 Phil 269)

Not only preventive power but also curative

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include the authority to exclude statistically improbable returns (Lagumbay v. Comelec, 16 SCRA 175 [1966]).

may rely on handwriting experts to prove falsity of returns. (Usman v. Comelec, 42 SCRA 667 [1971].

By law (Sec. 5 of BP 52) Comelec may be granted the power to declare failure of elections. “Failure to elect” may also result from post election terrorism, and such failure authorizes COMELEC to call a special election- Sanchez v. Comelec, 6/19/82

Judicial/Quasi-judicial powers of Comelec

Initial jurisdiction in election cases, including pre-proclamation case- by a division A petition to cancel the certificate of candidacy of Garvida on the ground that she would be more than 21 years of age on election day cannot be acted upon by COMELEC en banc but by a division. (Garvida v. Sales, 271 SCRA 767)

The power of the COMELEC does not include review of elections of BARANGAY FEDERATIONS as its power is limited to popular elections (Taule v. Sec. Santos, 8/12/9

What is the remedy of an aggrieved party from an interlocutory order of a division of Comelec alleged to have been issued with grave abuse of discretion or without jurisdiction? ANSWER: Under Section 5(c), Rule 3 of the 1993 COMELEC Rules of Procedure, a motion for reconsideration on an interlocutory order of a division of Comelec should be resolved by the same division, and not by the Comelec En Banc because only motions for reconsideration of “final decisions” of a division may be elevated to the Comelec en

banc. Under the above-quoted rule, the acts of a Division that are subject of a motion for reconsideration must have a character of finality before the same can be elevated to the COMELEC en banc. The elementary rule is that an order is final in nature if it completely disposes of the entire case. But if there is something more to be done in the case after its issuance, that order is interlocutory. [REPOL v. Comelec, 428 SCRA 321 (2004)]

Initial Appellate jurisdiction- by division Sec. 9 of RA 6679 providing for appeal from MTC to the RTC on contests involving elective municipal and barangay officials is unconstitutional as it deprived COMELEC its appellate jurisdiction. (Flores v. Comelec, 184 SCRA 484)

Appeal from MTC or RTC should be heard/decided by a division of COMELEC. (Abad v. Comelec, 12/10/99)

Requirement of MR No Petition for Certiorari with the SC without filing a motion for reconsideration with COMELEC En Banc. (Reyes v. RTC, 5/5/95)

A Motion for Reconsideration based on the merits and not a dismissal for failure to prosecute is what is contemplated under the provision. SALAZAR v. COMELEC, 184 SCRA 433 [1990].

Effect if qualified majority requirement of the Constitutional is not met

What happens if COMELEC en banc cannot muster the required majority vote of all its members? Answer: Promulgated on 15 February 1993 pursuant to Section 6, Article IX-A and Section 3, Article IX-C of the Constitution is the COMELEC Rules of Procedure, which under its Section 6, Rule 18 categorically provides: “Sec.6.Procedure if Opinion is Equally Divided.—When the

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Commission en banc is equally divided in opinion, or the necessary majority cannot be had, the case shall be reheard, and if on rehearing no decision is reached, the action or proceeding shall be dismissed if originally commenced in the Commission; in appealed cases, the judgment or order appealed from shall stand affirmed; and in all incidental matters, the petition or motion shall be denied.” [Mendoza vs. Commission on Election, 616 SCRA 443(2010)]

REVIEW OF COMELEC DECISIONS

By the SC only by way of Certiorari (under rule 64 & 65)

Decisions reviewable by the SC pertains to the adjudicatory or quasi-judicial power of Comelec and does not apply to decisions on administrative matters which may be questioned before the ordinary courts.(Filipinas Engineering v. Ferrer, 135 SCRA 25). THUS the proper court to review a resolution of the COMELEC in recognizing the lawful election registrar is the regular courts of general jurisdiction. (Garces v. CA, 259 SCRA 99)

May the Supreme Court still review the decisions of Comelec involving election contests of elective municipal and barangay officials. YES, only on questions of law (Galido v. Comelec, 1/18/91; reiterated in Rivera v. Comelec, 7/12/91) POLITICAL PARTIES

What are the two grounds for delisting of a party? Answer: COMELEC may motu proprio or upon verified complaint of any interested party, remove or cancel, after due notice and hearing, the registration of any national, regional or sectoral party, organization or coalition if it: (a) fails to participate in the last two (2) preceding

elections; or (b) fails to obtain at least two per centum (2%) of the votes cast under the party-list system in the two (2) preceding elections for the constituency in which it has registered.6 [Philippine Guardian Brotherhood, Inc. (PGBI) vs. Commission on Elections, 619 SCRA 585(2010)]

May a party-list organization which failed to get 2% of the votes cast under the party-list be delisted? Answer: NO. “…a party-list group or organization which qualified in the second round of seat allocation cannot now validly be delisted for the reason alone that it garnered less than 2% in the last two elections. In other words, the application of this disqualification should henceforth be contingent on the percentage of party-list votes garnered by the last party-list organization that qualified for a seat in the House of Representatives, a percentage that is less than the 2% threshold invalidated in Banat. The disqualification should now necessarily be read to apply to party-list groups or organizations that did not qualify for a seat in the two preceding elections for the constituency in which it registered. [Philippine Guardian Brotherhood, Inc. (PGBI) vs. Commission on Elections, 619 SCRA 585(2010)]Party List PROBLEM: The last sentence of Section 7 of R.A. 7941 reading: "[T]he names of the party-list nominees shall not be shown on the certified list." May COMELEC refuse to divulge the names of nominees of certain party list candidates on the basis of this provision of the PARTY LIST LAW. RULING: The prohibition imposed on the Comelec under said Section 7 is limited in scope and duration, meaning, that it extends only to the certified list which the same provision requires to be posted in the polling places on election day. To stretch the coverage of the prohibition to the absolute is to read into the law something that is not intended. As it were, there is absolutely nothing in R.A. No.

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7941 that prohibits the Comelec from disclosing or even publishing through mediums other than the "Certified List" the names of the party-list nominees. Assayed against the non-disclosure is the right to information enshrined in the self-executory of Section 7, Article III of the Constitution, complemented by Section 28, Article II of the Constitution. BANTAY REPUBLIC ACT OR BA-RA 7941, et al., vs. COMELEC, et al., [G.R. No. 177271. May 4, 2007.]

QUALIFICATIONS

Since his arrival on 4 May 2006, Ty was bodily present in General Macarthur, Eastern Samar. Ty however made trips abroad during said period, i.e. to Bangkok, Thailand (from 14 to 18 July 2006), and to the USA (from 31 October 2006 to 19 January 2007). Did Ty comply with the residence requirement to run for mayor on 14 May 2007 mayoralty election of Macarthur, Eastern Samar despite his trips abroad? Answer: There is no basis to require Ty to stay in and never leave at all the Municipality of General Macarthur, Eastern Samar, for the full one-year period prior to the 14 May 2007 local elections so that he could be considered a resident thereof. …. absence from residence to pursue studies or practice a profession or registration as a voter other than in the place where one is elected, does not constitute loss of residence. [Japzon vs. Commission on Elections, 576 SCRA 331(2009)]

May a Filipino green card holder or US immigrant vote in absentia in Philippine Presidential elections? Answer: YES. Under Sec. 5(d) of RA 9189, otherwise known as Absentee Voting Act, an immigrant or a permanent resident who is recognized as such in the host country, can vote if he/she executes, upon registration, an affidavit prepared for the purpose by the Commission

declaring that he/she shall resume actual physical permanent residence in the Philippines not later than three (3) years from approval of his/her registration under this Act. Such affidavit shall also state that he/she has not applied for citizenship in another country. Failure to return shall be cause for the removal of the name of the immigrant or permanent resident from the National Registry of Absentee Voters and his/her permanent disqualification to vote in absentia. [Macalintal vs. Commission on Elections, 405 SCRA 614(2003)]

CANDIDACY

What are the requirements to acquire a new domicile? ANSWER: In order to acquire a new domicile by choice, there must concur (1) residence or bodily presence in the new locality, (2) an intention to remain there, and (3) an intention to abandon the old domicile. There must be animus manendi coupled with animus non revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite period of time; the change of residence must be voluntary; and the residence at the place chosen for the new domicile must be actual.”

Effect of filing a certificate of candidacy.- Officials holding appointive offices, including active members of the AFP and officers of GOCCs shall be considered ipso facto resigned. (Sec. 66 BP 881)

In case of death, disqualification or withdrawal of candidate after the last day for filing of the certificate of candidacy, who may substitute the candidate? Only a person belonging to and certified by the same political party may file a certificate of candidacy not later than mid-day of the day of the election. (Sec. 77, BP 881)

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Petition to deny or cancel certificate of candidacy -In order to justify the cancellation of COC, it is essential that the false representation mentioned therein pertain to a material matter for the sanction imposed by this provision would affect the substantive rights of a candidate—the right to run for the elective post for which he filed the certificate of candidacy. Although the law does not specify what would be considered as a “material representation.” [Salcedo II v. Commission on Elections, 312 SCRA 447 (1999)].

Section 78 contemplates statements regarding age, residence and citizenship or non-possession of natural-born Filipino status. Furthermore, aside from the requirement of materiality, the false representation must consist of a deliberate attempt to mislead, misinform, or hide a fact which would otherwise render a candidate ineligible. In other words, it must be made with an intention to deceive the electorate as to one’s qualification for public office. [Gonzales vs. Commission on Elections, 644 SCRA 761(2011)]

What are the two instances where a petition questioning the qualifications of a candidate under the Omnibus Election Code? (1)Before election, pursuant to Section 78 thereof on the ground of material misrepresentation in the certificate of candidacy and (2)After election, by petition for quo warranto pursuant to Section 253 on the ground of ineligibility or of disloyalty to the Republic of the Philippines shall file a sworn petition for quo warranto with the Commission within ten days after the proclamation of the results of the election.

Difference between Sec. 78 and Sec. 253? - The only difference between the two proceedings is that, under Section 78, the qualifications for elective office are misrepresented in the certificate of candidacy

and the proceedings must be initiated before the elections, whereas a petition for quo warranto under Section 253 may be brought on the basis of two grounds—(1) ineligibility or (2) disloyalty to the Republic of the Philippines, and must be initiated within ten days after the proclamation of the election results. Under Section 253, a candidate is ineligible if he is disqualified to be elected to office, and he is disqualified if he lacks any of the qualifications for elective office.”[Gonzales vs. Commission on Elections, 644 SCRA 761(2011)]

What is the difference between a petition to deny or cancel certificate of candidacy under Sec. 78 and the petition for disqualification under Sec. 68 of the Omnibus Election Code? Answer: The grounds in Section 68 may be categorized into two. First, those comprising “prohibited” acts of candidates; and second, the fact of their permanent residency in another country when that fact affects the residency requirement of a candidate according to the law. (Section 12 or 68 of the Omnibus Election Code, or Section 40 of the [Local Government Code]) On the other hand, a petition to deny due course to or cancel a CoC can only be grounded on a statement of a material representation in the said certificate that is false. The petitions also have different effects. While a person who is disqualified under Section 68 is merely prohibited to continue as a candidate, the person whose certificate is cancelled or denied due course under Section 78 is not treated as a candidate at all, as if he/she never filed a CoC. X x x they also vary in their prescriptive period. A petition to cancel a CoC gives a registered candidate the chance to question the qualification of a rival candidate for a shorter period: within 5 days from the last day of their filing of CoCs, but not later than 25 days from the filing of the CoC sought to be cancelled. A petition for disqualification may be filed any day after the last day of the filing of CoC but not later than

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the date of the proclamation. [Munder vs. Commission on Election, et al., G.R. No. 194076(2011)] In a petition for disqualification,

where the petitioner dies, will the election and proclamation of the winning candidate cause the outright dismissal of the petition? Answer: The case for disqualification exists, and survives, the election and proclamation of the winning candidate because an outright dismissal will unduly reward the challenged candidate and may even encourage him to employ delaying tactics to impede the resolution of the disqualification case until after he has been proclaimed. The exception to the rule of retention of jurisdiction after proclamation applies when the challenged candidate becomes a member of the House of Representatives or of the Senate, where the appropriate electoral tribunal would have jurisdiction. There is no law or jurisprudence which says that intervention or substitution may only be done prior to the proclamation of the winning candidate. A substitution is not barred by prescription because the action was filed on time by the person who died and who is being substituted. The same rationale applies to a petition-intervention. [Lanot vs. Commission on Elections, 507 SCRA 114(2006)]

Effect of a final judgment disqualifying a candidate before and after the election. -Sec. 6 of RA No. 6646, Electoral Reforms Law of 1987, repealing Sec. 72 of the Omnibus Election Code provides: “Sec. 6. Effect of Disqualification Case.—Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion

of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong.”

PROBLEM: Cayat and Palileng were the only candidates for the mayoralty post in Buguias, Benguet in the 10 May 2004 local elections. Cayat filed his certificate of candidacy on 5 January 2004. On 26 January 2004, Palileng filed a petition for disqualification against Cayat before the COMELEC Regional Election Office in Baguio City alleging that Cayat is not eligible to run as Mayor having been convicted by final judgment for Acts of Lasciviousness, an offense involving moral turpitude which under Sec. 40(a) of R.A. 7160 otherwise known as the Local Government Code is a ground for disqualification, and which reads: (a) Those sentenced by final judgment for an offense involving moral turpitude for an offense punishable by one (1) year or more of imprisonment within [two] (2) years after serving sentence; ….Comelec (through its 1st

division) issued a resolution, disqualifying Cayat and which became final on April 17, 2004. In the local elections held on 10 May 2004, Cayat's name remained on the COMELEC's list of candidates. Cayat received 8,164 votes while Palileng, on the other hand, received 5,292 votes. Cayat took his oath of office on 17 May 2004, but Palileng was declared by Comelec as the duly elected mayor of Buguias, Benguet. Cayat went to the Supreme Court to question the proclamation of Palileng. Bayacsan, the elected vice-mayor, on the other hand filed a petition in intervention, arguing that Palileng is a second placer and under the LABO doctrine, he was not the choice of the people, and in the event of disqualification of Cayat, he, being the vice mayor elect should be declared the Mayor.

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QUESTION: Who should be the mayor of Buguias? Cayat, Palileng or Bayacsan?

ANSWER: Sec. 6 of RA No. 6646, repealing Sec. 72 of the Omnibus Election Code says:

"Sec. 6. Effect of Disqualification Case. — Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong."

The present case falls under the first situation envisaged under Section 6 of the Electoral Reforms Law: a candidate disqualified by final judgment before an election cannot be voted for, and votes cast for him shall not be counted. The Resolution disqualifying Cayat became final on 17 April 2004, way before the 10 May 2004 elections. Therefore, all the 8,164 votes cast in Cayat's favor are stray. Cayat was never a candidate in the 10 May 2004 elections Palileng's proclamation is proper because he was the sole and only candidate, second to none. NOTE: The name of Cayat remained in the list of candidates on election day. [Cayat vs. Commission on Elections, 522 SCRA 23(2007)]

What if his disqualification by final judgment came after the elections, and he received the highest number of votes during the election, may the second placer be proclaimed as winner? ANSWER: The

second placer was rejected by the people as he is not their choice and cannot be proclaimed as the winner (LABO v. Comelec, 211 SCRA 297 [1992])

CAMPAIGN

May a candidate, after filing his certificate of candidacy, lawfully engage in partisan political activity before the start of the campaign period? Answer: YES, The second sentence, third paragraph, Section 15 of RA 8436, as amended by Section 13 of RA 9369, provides that “[a]ny person who files his certificate of candidacy within [the period for filing] shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy.” The immediately succeeding proviso in the same third paragraph states that “unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period.” [Penera vs. Commission on Elections, 605 SCRA 574(2009); RULING on MR]

REMEDIES AND JURISDICTION IN ELECTION LAW

What are the grounds for declaration of failure of election? Answer: There are only three (3) instances where a failure of elections may be declared, namely: a) the election in any polling place has not been held on the date fixed on account of force majeure, violence, terrorism, fraud, or other analogous causes; b) the election in any polling place had been suspended before the hour fixed by law for the closing of the voting on account of force majeure, violence, terrorism, fraud, or other analogous causes; or c) after the voting and during the preparation and transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect on account of force majeure, violence, terrorism,

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fraud, or other analogous causes." (Sison v. Commission on Elections, 304 SCRA 170, 175 [1999]).

What are issues in a pre-proclamation controversy? Answer: The grounds that must support a pre-proclamation controversy are limited by the Omnibus Election Code to the following: “Section243.Issues that may be raised in pre-proclamation controversy.—The following shall be proper issues that may be raised in a pre-proclamation controversy: (a)Illegal composition or proceedings of the board of canvassers; (b)The canvassed election returns are incomplete, contain material defects, appear to be tampered with or falsified, or contain discrepancies in the same returns or in other authentic copies thereof as mentioned in Sections 233, 234, 235 and 236 of this Code; (c)The election returns were prepared under duress, threats, coercion, or intimidation, or they are obviously manufactured or not authentic; and (d)When substitute or fraudulent returns in controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate or candidates.” [Abayon vs. Commission on Elections, 583 SCRA 473(2009)]

Effect of pendency of pre-proclamation case on the period to file election contest- Section 250 of the Omnibus Election Code fixes the period within which to file an election contest for provincial offices at ten days after the proclamation of the election results, to wit: “Section250.Election contests for Batasang Pambansa, regional, provincial and city offices.—A sworn petition contesting the election of any Member of the Batasang Pambansa or any regional, provincial and city official shall be filed with the Commission by any candidate who has duly filed a certificate of candidacy and has been voted for the same office, within ten

days after the proclamation of the results of the election.”

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However, this ten-day period may be suspended, as Section 248 of the Omnibus Election Law provides: “Section248.Effect of filing petition to annul or to suspend the proclamation.—The filing with the Commission of a petition to annul or to suspend the proclamation of any candidate shall suspend the running of the period within which to file an election protest or quo warranto proceedings.”

Is a petition to declare failure of election a pre-proclamation controversy? Answer: In Dagloc v. Commission on Elections, 321 SCRA 273, 279-282 (1999) the Supreme Court clarified that the “petition to annul or to suspend the proclamation,” which Section 248 refers to, and which suspends the running of the period within which to file the election protest or quo warranto proceedings, must be a pre-proclamation controversy. The Court, thus, decreed in the same case that a petition for the declaration of failure of election was not a pre-proclamation controversy and, therefore, did not suspend the running of the reglementary period within which to file an election protest or quo warranto proceedings. [Abayon vs. Commission on Elections, 583 SCRA 473(2009)]

Election protest-filed within 10 days

from proclamation of results of the election by any candidate who has filed a certificate of candidacy and has been voted upon for the same office on grounds of fraud, terrorism, irregularities, or illegal acts committed before, during and after the casting of votes.

Quo warranto- filed within 10 days from proclamation of the results of the election by any registered voter in the

constituency on grounds of ineligibility or disloyalty to the Republic of the Philippines

Election contest and quo warranto distinguished: In quo warranto, the incumbent’s

ouster is sought on the ground of ineligibility or disloyalty to the republic. In an election contest, incumbent’s ouster is sought on the ground of irregularity in the conduct of the elections or in the counting or non-counting of ballots. (Caesar v. Garrido, 53 Phil. 97)

In quo warranto, the incumbent’s ouster does not necessarily entitle the petitioner to be seated. In an election contest, if the protestee or respondent is declared defeated, the protestant or petitioner may be seated in his place (Luisen v. Garcia, 103 Phil. 453)

The grounds for quo warranto are separable from the grounds for election irregular alleged in the protest. Each action should be dealt with according to its own merits. Pacal v. Ramos, G.R. 2167,17 May 48,45 Off. Gaz. 4946, 81 Phil. 30

POWER TO PROSECUTE ELECTION OFFENSES

Power to investigate and prosecute violations of elections laws as part of its executive power, COMELEC has exclusive jurisdiction to investigate and prosecute election offenses committed by PUBLIC OFFICIALS in relation to their office. (CORPUS V. TANODBAYAN, 149 SCRA 281 [1987]

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Preliminary Investigation conducted by the Provincial Election Supervisor involving election offenses need not pass thru the Provincial Fiscal (Prosecutor) before the Court may take cognizance to determine the existence of probable cause. (People v. Judge Inting, 7/25/90) But may delegate such power to the regular prosecutors (PEOPLE V. BASILIA, 11-6-89)

LOCAL GOVERNMENT

Power to create local governments Power to create local governments is

legislative in character.

Congress has delegated (under Secs 385 & 386, RA 7160) to provincial boards, and city and municipal councils, the power to create barangays within their jurisdiction,

BUT the power to create provinces and cities belongs to Congress as their creation involves creation of legislative districts. SEMA vs. COMELEC, G.R. No. 177597, July 16, 2008-

Meaning of autonomy decentralization of administration

NOT delegation or decentralization of power

retention of 10% of the IRA contrary to local autonomy -Pimentel vs. Aguirre, 336 SCRA 201

Dept. of Budget cannot set of a limit to the statutory authority of local governments to grant allowances to judges. Dadole vs. COA, 178 SCAD 262 [Dec. 2002]

When the law requires recommendation of nominees for the position of Prov. Budger Officer from the local government head (Governor), the appointing authority cannot appoint someone not passing thru the recommendation of the local government head. (San juan v. CSC, 4/19/91)

The SC may intervene in the dismissal of the Speaker of the Sangguniang Pampook of Region XII. The autonomous regions are not meant to be "self immolation". Where due process is not observed, the action of the autonomous region is invalid. (Limbona v. Conte Mangelin, 170 SCRA 786 [1989])

Question: What is the constitutional basis for the Internal Revenue Allotment to local governments? Answer. Article X, Section 6 says Local government units shall have a just share, as determined by law, in the national taxes, which shall be automatically released to them.

Question. What are the requirements for validity of a local ordinance?Answer. 1) Must not contravene the Constitution or any statute;2) Must not be unfair or oppressive;3) Must not be partial or discriminatory;4) Must not prohibit but may regulate trade;5) Must be general and consistent with public policy;6) Must be reasonable. (Tatel vs. Municipality of Virac, 207 SCRA 157)

Question. What is the “doctrine of forgiveness or condonation”? What is its scope?

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Answer. An official’s reelection expresses the sovereign will of the electorate to forgive or condone any act or omission constituting a ground for administrative discipline, which was committed during his previous term. The doctrine does not apply to criminal acts. (Salalima v. Guingona, 257 SCRA 55 [1996]); Question. Under the Local Government Code, does the disciplining authority exercise the power to remove elected local official? Answer. NO. The power granted to disciplining authority is the power to suspend. Removal may only be decreed by an order of the proper court. (Sec. 60)

Power to tax

MCIAA as GOCCAccordingly, the position taken by the petitioner is untenable. Reliance on Basco vs. Philippine Amusement and Gaming Corporation is unavailing since it was decided before the effectivity of the LGC. Besides, nothing can prevent Congress from decreeing that even instrumentalities or agencies of the Government performing governmental functions may be subject to tax. Where it is done precisely to fulfill a constitutional mandate and national policy, no one can doubt its wisdom. [Mactan Cebu International Airport Authority vs. Marcos, 261 SCRA 667(1996)]

MIAA as “instrumentality,” not GOCCMIAA is not a government-owned or controlled corporation under Section 2(13) of the Introductory Provisions of the Administrative Code because it is not organized as a stock or non-stock corporation. Neither is MIAA a government-owned or controlled corporation under Section 16, Article XII of the 1987 Constitution because MIAA is not required to meet the test of economic viability. MIAA is a government instrumentality vested with corporate powers

and performing essential public services pursuant to Section 2(10) of the Introductory Provisions of the Administrative Code. As a government instrumentality, MIAA is not subject to any kind of tax by local governments under Section 133(o) of the Local Government Code. The exception to the exemption in Section 234(a) does not apply to MIAA because MIAA is not a taxable entity under the Local Government Code. Such exception applies only if the beneficial use of real property owned by the Republic is given to a taxable entity. [Manila International Airport Authority vs. Court of Appeals, 495 SCRA 591(2006)]

MMDA devoid of power to close provincial bus terminalsDesignated by Executive Order (E.O.) No. 179, MMDA "recommended a plan to decongest traffic by eliminating the bus terminals now located along major Metro Manila thoroughfares and providing more and convenient access to the mass transport system to the commuting public through the provision of mass transport terminal facilities" which plan is referred to under the E.O. as the Greater Manila Mass Transport System Project. May the MMDA close the bus terminals?ANSWER: It bears stressing that under the provisions of E.O. No. 125, as amended, it is the DOTC, and not the MMDA, which is authorized to establish and implement a project such as the one subject of the cases at bar. Thus, the President, although authorized to establish or cause the implementation of the Project, must exercise the authority through the instrumentality of the DOTC which, by law, is the primary implementing and administrative entity in the promotion, development and regulation of networks of transportation, and the one so authorized to establish and implement a project such as the project in question. By designating the MMDA as the implementing agency of the Project, the President clearly overstepped the

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limits of the authority conferred by law, rendering E.O. No. 179 ultra vires. In another vein, the validity of the designation of MMDA flies in the absence of a specific grant of authority to it under R.A. No. 7924. To recall, R.A. No. 7924 declared the Metropolitan Manila area as a "special development and administrative region" and placed the administration of "metro-wide" basic services affecting the region under the MMDA. However, it has no police power. (MMDA vs. VIRON TRANSPORTATION CO., INC., [G.R. No. 170656. August 15, 2007.]

Who are disqualified to run for local elective office?ANSWER: The following persons are disqualified from running for any elective local position:(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence;

(b) Those removed from office as a result of an administrative case;

(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;

(d) Those with dual citizenship;

(e) Fugitives from justice in criminal or non-political cases here or abroad;

(f) Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after the effectivity of this Code; and

(g) The insane or feeble-minded. (Sec. 40, LGC)

What is the meaning of “fugitive from justice”? ANSWER: “x x x includes not only those who flee after conviction to avoid punishment but likewise who, after being charged, flee to avoid prosecution.” Marquez, Jr. vs. COMELEC, 243 SCRA 538 (1995)

But not one who arrived in the Philippines five(5) months before the filing of the felony charge in Los Angeles court in the US.[Rodriguez vs. Commission on Elections, 259 SCRA 296(1996)]

State the grounds for disciplinary actions for local elective officials. ANSWER: Sec. 60 of LGC provides that “An elective local official may be disciplined, suspended, or removed from office on any of the following grounds:(a) Disloyalty to the Republic of the Philippines;

(b) Culpable violation of the Constitution;

(c) Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of duty;

(d) Commission of any offense involving moral turpitude or an offense punishable by at least prision mayor;

(e) Abuse of authority;

(f) Unauthorized absence for fifteen (15) consecutive working days, except in the case of members of the sangguniang panlalawigan, sangguniang panlungsod, sangguniang bayan, and sangguniang barangay;

(g) Application for, or acquisition of, foreign citizenship or residence or the status of an immigrant of another country; and

(h) Such other grounds as may be provided in this Code and other laws.

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Under the LGC, who may remove elective local officials?

ANSWER: An elective local official may be removed from office on the grounds enumerated above by order of the proper court. (last par. Sec. 60 LGC)

Who are disciplining authorities over local elective officials? ANSWER: They are:

(a) President for elective official of a province, a highly urbanized city, an independent component city or component city;

(b) Sanggunian Panlalawigan for elective official of a municipality whose decision may be appealed to the Office of the President; and

(c) Sanggunian for elective barangay official whose decision shall be final and executory.

Limitations on investigation of local elective officials -However, no investigation shall be held within ninety (90) days immediately prior to any local election, and no preventive suspension shall be imposed within the said period. If preventive suspension has been imposed prior to the 90-day period immediately preceding local election, it shall be deemed automatically lifted upon the start of aforesaid period.

Who may issue preventive suspension of local elective officials? ANSWER: Under Section 63 of LGC, it is issued by-

(1) By the President, if the respondent is an elective official of a province, a highly urbanized or an independent component city;

(2) By the governor, if the respondent is an elective official of a component city or municipality; or

(3) By the mayor, if the respondent is an elective official of the barangay.

When may preventive suspension be imposed? ANSWER: Preventive suspension may be imposed at any time after the issues are joined, when the evidence of guilt is strong, and given the gravity of the offense, there is great probability that the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence: Provided, That, any single preventive suspension of local elective officials shall not extend beyond sixty (60) days: Provided, further, That in the event that several administrative cases are filed against an elective official, he cannot be preventively suspended for more than ninety (90) days within a single year on the same ground or grounds existing and known at the time of the first suspension.

What is the maximum period of suspension as a penalty – ANSWER: The penalty of suspension shall not exceed the unexpired term of the respondent or a period of six (6) months for every administrative offense, nor shall said penalty be a bar to the candidacy of the respondent so suspended as long as he meets the qualifications required for the office. (par(b), Sec. 66, LGC)

What is the accessory penalty for a administrative removal of an elective local official? ANSWER: The penalty of removal from office as a result of an administrative investigation shall be considered a bar to the candidacy of the respondent for any elective position. (par. C, Sec. 66, LGC)

What are the limitations on Recall?

(a) Any elective local official may be the subject of a recall election only once during his term of office for loss of confidence.

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(b) No recall shall take place within one (1) year from the date of the official's assumption to office or one (1) year immediately preceding a regular local election. (Sec. 74, LGC)

Who may preventively suspend local appointive officials and employees, and on what ground?

ANSWER: The local chief executives may preventively suspend for a period not exceeding sixty (60) days and subordinate official or employee under his authority pending investigation if the charge against such official or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty, or if there is reason to believe that the respondent is guilty of the charges which would warrant his removal from the service. (Sec. 85, LGC)

Who may impose, and penalty may be imposed upon them? - Except as otherwise provided by law, the local chief executive may impose the penalty of removal from service, demotion in rank, suspension for not more than one (1) year without pay, fine in an amount not exceeding six (6) months salary, or reprimand and otherwise discipline subordinate officials and employees under his jurisdiction. If the penalty imposed is suspension without pay for not more than thirty (30) days, his decision shall be final. If the penalty imposed is heavier than suspension of thirty (30) days, the decision shall be appealable to the Civil Service Commission, which shall decide the appeal within thirty (30) days from receipt thereof. (Sec. 87, LGC)

How is boundary dispute among local governments settled?Answer: This is governed by Sec. 118-119 of the Local Government Code which says:

Section 118. Jurisdictional Responsibility for Settlement of Boundary Dispute. - Boundary disputes between and among local government units shall, as much as possible, be settled amicably. To this end:

(a) Boundary disputes involving two (2) or more barangays in the same city or municipality shall be referred for settlement to the sangguniang panlungsod or sangguniang bayan concerned.

(b) Boundary disputes involving two (2) or more municipalities within the same province shall be referred for settlement to the sangguniang panlalawigan concerned.

(c) Boundary disputes involving municipalities or component cities of different provinces shall be jointly referred for settlement to the sanggunians of the province concerned.

(d) Boundary disputes involving a component city or municipality on the one hand and a highly urbanized city on the other, or two (2) or more highly urbanized cities, shall be jointly referred for settlement to the respective sanggunians of the parties.

(e) In the event the sanggunian fails to effect an amicable settlement within sixty (60) days from the date the dispute was referred thereto, it shall issue a certification to that effect. Thereafter, the dispute shall be formally tried by the sanggunian concerned which shall decide the issue within sixty (60) days from the date of the certification referred to above.

From the decision of the sanggunian concerned, how is appeal taken therefrom?

Answer: Section 119 of the LGC says: Appeal. - Within the time and manner prescribed by the Rules of Court, any party may elevate the decision of the sanggunian concerned to the

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proper Regional Trial Court having jurisdiction over the area in dispute. The Regional Trial Court shall decide the appeal within one (1) year from the filing thereof. Pending final resolution of the disputed area prior to the dispute shall be maintained and continued for all legal purposes.

In case of PERMANENT vacancies in the offices of of the Governor, Vice-Governor, Mayor, and Vice-Mayor, how should it be filled up?ANSWER: This is covered by Sec. 44 of the LGC which states: Section 44. Permanent Vacancies in the Offices of the Governor, Vice-Governor, Mayor, and Vice-Mayor. - If a permanent vacancy occurs in the office of the governor or mayor, the vice-governor or vice-mayor concerned shall become the governor or mayor. If a permanent vacancy occurs in the offices of the governor, vice-governor, mayor, or vice-mayor, the highest ranking sanggunian member or, in case of his permanent inability, the second highest ranking sanggunian member, shall become the governor, vice-governor, mayor or vice-mayor, as the case may be. Subsequent vacancies in the said office shall be filled automatically by the other sanggunian members according to their ranking as defined herein.

(b) If a permanent vacancy occurs in the office of the punong barangay, the highest ranking sanggunian barangay member or, in case of his permanent inability, the second highest ranking sanggunian member, shall become the punong barangay.

(c) A tie between or among the highest ranking sanggunian members shall be resolved by the drawing of lots.

(d) The successors as defined herein shall serve only the unexpired terms of their predecessors.

For purposes of this Chapter, a permanent vacancy arises when an elective local official fills a higher vacant office, refuses to assume office, fails to qualify, dies, is removed from office, voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions of his office.

For purposes of succession as provided in the Chapter, ranking in the sanggunian shall be determined on the basis of the proportion of votes obtained by each winning candidate to the total number of registered voters in each district in the immediately preceding local election.

How should permanent vacancies in the Sanggunian be filled up?

ANSWER: Sec. 45 of LGC provides for the contingency, to wit: Section 45. Permanent Vacancies in the Sanggunian. -

(a) Permanent vacancies in the sanggunian where automatic succession provided above do not apply shall be filled by appointment in the following manner:

(1) The President, through the Executive Secretary, in the case of the sangguniang panlalawigan and the sangguniang panlungsod of highly urbanized cities and independent component cities;

(2) The governor, in the case of the sangguniang panlungsod of component cities and the sangguniang bayan;

(3) The city or municipal mayor, in the case of sangguniang barangay, upon recommendation of the sangguniang barangay concerned.

(b) Except for the sangguniang barangay, only the nominee of the political party under which the sanggunian member concerned

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had been elected and whose elevation to the position next higher in rank created the last vacancy in the sanggunian shall be appointed in the manner hereinabove provided. The appointee shall come from the same political party as that of the sanggunian member who caused the vacancy and shall serve the unexpired term of the vacant office. In the appointment herein mentioned, a nomination and a certificate of membership of the appointee from the highest official of the political party concerned are conditions sine qua non, and any appointment without such nomination and certification shall be null and void ab initio and shall be a ground for administrative action against the official responsible therefore.

(c) In case or permanent vacancy is caused by a sanggunian member who does not belong to any political party, the local chief executive shall, upon recommendation of the sanggunian concerned, appoint a qualified person to fill the vacancy.

(d) In case of vacancy in the representation of the youth and the barangay in the sanggunian, said vacancy shall be filled automatically by the official next in rank of the organization concerned.

In case a vacancy in the sanggunian panglungsod is created by a member who is not affiliated with any political party, who has the power to nominate and appoint? May the appointing power decline to appoint the nominee? ANSWER. The power to nominate belongs to the sanggunian where the vacancy was created. The power to appoint belongs to the local chief executive, in this case the City Mayor. Since the power to appoint is discretionary, the city mayor may not appoint the nominee, but he cannot appoint other than who was nominated by the

recommending authority. In short, the appointing power has to wait for the next nomination. (see Farinas vs. Barba, 256 SCRA 396 [1996]

What about in case of temporary vacancy in the office of the local chief executive, how should it be filled up?

ANSWER: This is answered by Sec. 46 of the LGC which provides: Section 46. Temporary Vacancy in the Office of the Local Chief Executive. –

(a) When the governor, city or municipal mayor, or punong barangay is temporarily incapacitated to perform his duties for physical or legal reasons such as, but not limited to, leave of absence, travel abroad, and suspension from office, the vice-governor, city or municipal vice-mayor, or the highest ranking sangguniang barangay member shall automatically exercise the powers and perform the duties and functions of the local chief executive concerned, except the power to appoint, suspend, or dismiss employees which can only be exercised if the period of temporary incapacity exceeds thirty (30) working days.

(b) Said temporary incapacity shall terminate upon submission to the appropriate sanggunian of a written declaration by the local chief executive concerned that he has reported back to office. In cases where the temporary incapacity is due to legal causes, the local chief executive concerned shall also submit necessary documents showing that said legal causes no longer exist.

(c) When the incumbent local chief executive is traveling within the country but outside his territorial jurisdiction for a period not exceeding three (3) consecutive days, he may designate in writing the officer-in-charge of

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the said office. Such authorization shall specify the powers and functions that the local official concerned shall exercise in the absence of the local chief executive except the power to appoint, suspend, or dismiss employees.

(d) In the event, however, that the local chief executive concerned fails or refuses to issue such authorization, the vice-governor, the city or municipal vice-mayor, or the highest ranking sangguniang barangay member, as the case may be, shall have the right to assume the powers, duties, and functions of the said office on the fourth (4th) day of absence of the said local chief executive, subject to the limitations provided in subsection (c) hereof.

(e) Except as provided above, the local chief executive shall in no case authorize any local official to assume the powers, duties, and functions of the office, other than the vice-governor, the city or municipal vice-mayor, or the highest ranking sangguniang barangay member, as the case may be.

TERM LIMITS

TERM- “It is not competent for the legislature to extend the term of officers by providing that they shall hold over until their successors are elected and qualified where the constitution has in effect or by clear implication prescribed the term and when the Constitution fixes the day on which the official term shall begin, there is no legislative authority to continue the office beyond that period, even though the successors fail to qualify within the time. OSMENA V. COMELEC, 1199 SCRA 750, 758 991

For BARANGAYS-Congress has plenary authority under the Constitution to determine by legislation not only the

duration of the term of barangay officials, but also the application to them of a consecutive term limit. [Comelec vs. Cruz, 605 SCRA 167(2009)]

TERM LIMIT does not apply if:

Term acquired by SUCCESSION; not elected for the office and term-Borja v. Commission on Elections, 260 SCRA 604 (1996).

ELECTION INVALIDATED- presented the question of whether the disqualification on the basis of the three-term limit applies if the election of the public official (to be strictly accurate, the proclamation as winner of the public official) for his supposedly third term had been declared invalid in a final and executory judgment. Lonzanida v. Commission on Elections, G.R. No. 135150, July 28, 1999, 311 SCRA 602-

UNLESS FULLY SERVED THE TERMS: like Lonzanida, also involved the issue

of whether there had been a completed term for purposes of the three-term limit disqualification. These cases, however, presented an interesting twist, as their final judgments in the electoral contest came after the term of the contested office had expired so that the elective officials in these cases were never effectively unseated. (Ong v. Alegre, 479 SCRA 473 (2006) and Rivera v. COMELEC, 523 SCRA 41 (2007)

PROHIBITED ELECTION MUST BE IMMEDIATE, not a RECALL ELECTION: Adormeo v. Commission on

Elections, 376 SCRA 90 (2002) dealt with the effect of recall; on the three-term limit disqualification. The case presented the question of whether the

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disqualification applies if the official lost in the regular election for the supposed third term, but was elected in a recall election covering that term; the official was not elected for three (3) consecutive terms. The Court reasoned out that for nearly two years, the official was a private citizen; hence, the continuity of his mayorship was disrupted by his defeat in the election for the third term. Socrates v. Commission on Elections,391 SCRA 457 (2002) also tackled recall.... Any subsequent election, like a recall election, is no longer covered by the prohibition for two reasons. First, a subsequent election like a recall election is no longer an immediate reelection after three consecutive terms. Second, the intervening period constitutes an involuntary interruption in the continuity of service…..A recall election mid-way in the term following the third consecutive term is a subsequent election but not an immediate reelection after the third term.

TERM LIMITATION NOT AFFECTED BY CONVERSION OF THE LOCAL GOVERNMENT Latasa v. Commission on Elections,

417 SCRA 601 (2003) presented the novel question of whether a municipal mayor who had fully served for three consecutive terms could run as city mayor in light of the intervening conversion of the municipality into a city. During the third term, the municipality was converted into a city; the cityhood charter provided that the elective officials of the municipality shall, in a holdover capacity, continue to exercise their powers and functions until elections were held for the new city officials. The Court ruled that the conversion of the municipality into a city did not convert the office of the municipal mayor into a local government post different from the office of the city mayor—the territorial jurisdiction of the city was the same as that of the municipality; the inhabitants were the same group of

voters who elected the municipal mayor for 3 consecutive terms; and they were the same inhabitants over whom the municipal mayor held power and authority as their chief executive for nine years.

INVOLUNTARY INTERRUPTION OF SERVICE- BY SUCCESSION

In Montebon v. Commission on Elections, 551 SCRA 50 (2008)-where the highest-ranking municipal councilor succeeded to the position of vice-mayor by operation of law. ….an (involuntary) interruption had intervened so that he could again run as councilor.

INTERRUPTION MUST RESULT TO LOSS OF OFFICE-

not merely the right to serve- such as preventive suspension which is not an interruption Aldovino, Jr. vs. Commission on Elections, 609 SCRA 234(2009)

Public International Law

A. Concepts

Obligations erga omnes (obligations to all mankind/states) Belgium v. Spain (1970), also called the Barcelona Traction Case.

e.g. acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination

Barcelona Traction case

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The Barcelona Traction, Light and Power Company, Limited, was incorporated in 1911 in Toronto (Canada), where it has its head office. For the purpose of creating and developing an electric power production and distribution system in Catalonia (Spain) it formed a number of subsidiary companies, of which some had their registered offices in Canada and the others in Spain. , some years after the first world war Barcelona Traction share capital came to be very largely held by Belgian nationals, ….

Barcelona Traction issued several series of bonds, … In 1936 the servicing of the Barcelona Traction bonds was suspended on account of the Spanish civil war. After that war the Spanish exchange control authorities refused to authorize the transfer of the foreign currency necessary for the resumption of the servicing of the sterling bonds…..

In 1948 three Spanish holders of recently acquired Barcelona Traction sterling bonds petitioned the court of Reus (Province of Tarragona) for a declaration adjudging the company bankrupt, on account of failure to pay the interest on the bonds. On 12 February 1948 a judgment was given declaring the company bankrupt and ordering the seizure of the assets of Barcelona Traction and of two of its subsidiary companies. Pursuant to this judgment the principal management personnel of the two companies were dismissed and Spanish directors appointed. Shortly afterwards, these measures were extended to the other subsidiary companies. New shares of the subsidiary companies were created, which were sold by public auction in 1952 to a newly-formed company, Fuerzas Electricas de Cataluna, S.A. (Fecsa), which thereupon acquired complete control of the undertaking in Spain. xxx

The Belgian Government brought the matter before the ICJ.. on behalf of natural and

juristic persons, alleged to be Belgian nationals and shareholders for damage allegedly caused to those persons by the conduct, said to be contrary to international law, of various organs of the Spanish State towards that company.

The Court observed that when a State admitted into its territory foreign investments or foreign nationals it was bound to extend to them the protection of the law and assumed obligations concerning the treatment to be afforded them. But such obligations were not absolute. In order to bring a claim in respect of the breach of such an obligation, a State must first establish its right to do so. (erga omnes, but obiter)

In the field of diplomatic protection, international law was in continuous evolution and was called upon to recognize institutions of municipal law. In municipal law, the concept of the company was founded on a firm distinction between the rights of the company and those of the shareholder. Only the company, which was endowed with legal personality, could take action in respect of matters that were of a corporate character. A wrong done to the company frequently caused prejudice to its shareholders, but this did not imply that both were entitled to claim compensation. Whenever a shareholder's interests were harmed by an act done to the company, it was to the latter that he had to look to institute appropriate action. An act infringing only the company's rights did not involve responsibility towards the shareholders, even if their interests were affected. In order for the situation to be different, the act complained of must be aimed at the direct rights of the shareholder as such (which was not the case here since the Belgian Government had itself admitted that it had not based its claim on an infringement of the direct rights of the shareholders).

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International law had to refer to those rules generally accepted by municipal legal systems. An injury to the shareholder's interests resulting from an injury to the rights of the company was insufficient to found a claim. Where it was a question of an unlawful act committed against a company representing foreign capital, the general rule of international law authorized the national State of the company alone to exercise diplomatic protection for the purpose of seeking redress. No rule of international law expressly conferred such a right on the shareholder's national State.xxx

It had been maintained that a State could make a claim when investments by its nationals abroad, such investments being part of a State's national economic resources, were prejudicially affected in violation of the right of the State itself to have its nationals enjoy a certain treatment. But, in the present state of affairs, such a right could only result from a treaty or special agreement. And no instrument of such a kind was in force between Belgium and Spain.

It had also been maintained that, for reasons of equity, a State should be able, in certain cases, to take up the protection of its nationals, shareholders in a company which had been the victim of a violation of international law. The Court considered that the adoption of the theory of diplomatic protection of shareholders as such would open the door to competing claims on the part of different States, which could create an atmosphere of insecurity in international economic relations. In the particular circumstances of the present case, where the company's national State was able to act, the Court was not of the opinion that jus standi was conferred on the Belgian Government by considerations of equity.

The Court's Decision However, the possession by the Belgian Government of a right of

protection was a prerequisite for the examination of such problems. Since no jus standi before the Court had been established, it was not for the Court to pronounce upon any other aspect of the case.

Accordingly, the Court rejected the Belgian Government's claim by 15 votes to 1, 12 votes of the majority being based on the reasons set out above.

Jus cogens (premptory norms- non derogable) e.g. prohibition against piracy, genocide, aggression, slaving, self determination, torture

Latin meaning "compelling law." This "higher law" must be followed by all countries. The 1986 Vienna Convention on the Law of Treaties affirmed jus cogens as an accepted doctrine in international law.

ProblemPetitioners, members of the MALAYA LOLAS, a non-stock, non-profit organization registered with the Securities and Exchange Commission, established for the purpose of providing aid to the victims of rape by Japanese military forces in the Philippines during the Second World War, approached the Executive Department to espouse their claim. However, officials of the Executive Department declined to assist the petitioners, and took the position that the individual claims of the comfort women for compensation had already been fully satisfied by Japan’s compliance with the Peace Treaty between the Philippines and Japan. Hence, this petition where petitioners pray for this court to:

Declare that respondents committed grave abuse of discretion amounting to lack or excess of discretion in refusing to espouse their claims for the crimes

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against humanity and war crimes committed against them; and

Compel the respondents to espouse their claims for official apology and other forms of reparations against Japan before the International Court of Justice (ICJ) and other international tribunals.

ANSWER: “It is well-established that “[t]he conduct of the foreign relations of our government is committed by the Constitution to the executive and legislative—‘the political’—departments of the government, and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision.”

“…at present, there is no sufficient evidence to establish a general international obligation for States to exercise diplomatic protection of their own nationals abroad. Though, perhaps desirable, neither state practice nor opinio juris has evolved in such a direction. If it is a duty internationally, it is only a moral and not a legal duty, and there is no means of enforcing its fulfillment. [Vinuya vs. Romulo, 619 SCRA 533(2010)]

3. Concept of aeguo et bono

It is a term often used in international law when a matter is to be decided according to principles of equity rather than by points of law. Article 38(2) of the Statute of the International Court of Justice provides that the court may decide cases ex aequo et bono, if the parties agree thereto.

In the context of arbitration, it refers to the power of the arbitrators to dispense with consideration of the law and consider solely what they consider to be fair and equitable in the case at hand. Article 33 of the United

Nations Commission on International Trade Law's Arbitration Rules (1976) provides that the arbitral tribunal should decide as ex aequo et bono only if the parties have expressly authorized the arbitral tribunal to do so and if the law applicable to the arbitral procedure permits such arbitration.

(http://definitions.uslegal.com/e/ex-aequo-et-bono)

B. International and national law Incorporation & transformation Conflict between international law &

national law

C. SourcesAn authoritative source of international laws is found in Art. 38 of the Statute of the International Court of Justice which says:

The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

Primary sources

international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

international custom, as evidence of a general practice accepted as law;

the general principles of law recognized by civilized nations;

Secondary sources:

subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

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http://definitions.uslegal.com/e/ex-aequo-et-bono

http://definitions.uslegal.com/e/ex-aequo-et-bono



2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.

NOTE: The primary sources, by practice, are enumerated on the basis of hierarchal value, except for JUS COGENS (torture, piracy, slave trade, terrorism, …)

D. Subjects

1. States2. International organizations 3. Individuals (to a certain extent)

E. Diplomatic and consular law

“Diplomatic Immunities” and “International Immunities,” Distinguished.—There are three major differences between diplomatic and international immunities. Firstly, one of the recognized

limitations of diplomatic immunity is that members of the diplomatic staff of a mission may be appointed from among the nationals of the receiving State only with the express consent of that State; apart from inviolability and immunity from jurisdiction in respect of official acts performed in the exercise of their functions, nationals enjoy only such privileges and immunities as may be granted by the receiving State. International immunities may be specially important in relation to the State of which the official is a national.

Secondly, the immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State; in the case of international immunities there is no sending State and an equivalent for the jurisdiction of the sending State therefore has to be found either in waiver of immunity or in some

international disciplinary or judicial procedure.

Thirdly, the effective sanctions which secure respect for diplomatic immunity are the principle of reciprocity and the danger of retaliation by the aggrieved State; international immunities enjoy no similar protection. [see separate opinion of J. Puno in Liang vs. People, 355 SCRA 125(2001)]

May a charge of slander against an employee of ADB within the immunity clause of the employees of ADB? ANSWER: Under the Vienna Convention on Diplomatic Relations, a diplomatic envoy is immune from criminal jurisdiction of the receiving State for all acts, whether private or official, and hence he cannot be arrested, prosecuted and punished for any offense he may commit, unless his diplomatic immunity is waived. On the other hand, officials of international organizations enjoy “functional” immunities, that is, only those necessary for the exercise of the functions of the organization and the fulfillment of its purposes. This is the reason why the ADB Charter and Headquarters Agreement explicitly grant immunity from legal process to bank officers and employees only with respect to acts performed by them in their official capacity, except when the Bank waives immunity. In other words, officials and employees of the ADB are subject to the jurisdiction of the local courts for their private acts, notwithstanding the absence of a waiver of immunity. NOTE: the court likewise ruled that slander could hardly be considered an act committed in official capacity. [Liang vs. People, 355 SCRA 125(2001)]

Problem: The US embassy in Libya was attacked by Islamist extremists, burning the embassy building, and in the process, killing the US ambassador. What are possible violations of the Libyan Government under international law?

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ANSWER: The Libyan government may be held liable under Article 22 of the Vienna Convention on Diplomatic Relations which states: “2. The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.” Likewise, under Article 29 of the same convention states that: “The person of the diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.”

F. Treaties

The provision of Art. XVIII, Sec. 25 of the Constitution, is complied with by virtue of the fact that the presence of the US Armed Forces through the VFA is a presence “allowed under” the RP-US Mutual Defense Treaty. Since the RP-US Mutual Defense Treaty itself has been ratified and concurred in by both the Philippine Senate and the US Senate, there is no violation of the Constitutional provision resulting from such presence. [Nicolas vs. Romulo, 578 SCRA 438(2009)]

G. Nationality and statelessness1. Modes of acquisition of nationality2. Multiple nationality

The claim of particular nationality shall be decided on that basis of the national law to exclusion of the other national laws.

If the issue of nationality is raised in a third state, the latter shall apply the principle of effective or active nationality.

3. Loss of nationality

H. Treatment of aliens 1. Doctrine of State Responsibility

International Standard of Justice Failure of protection or redress Exhaustion of Local Remedies Resort to diplomatic protection Enforcement of claim Avoidance of State Responsibility

2. Exclusion, Deportation

3. Extraditiona) Fundamental principles

Extradition is based on consent of the state of asylum under a treaty or as an act of goodwill

Principle of Specialty Any person may be extradited Political and religious

offenders generally not extraditable

Attentat clause Offense committed within the

territory or against the interest of the demanding state unless there is special agreement.

Rule of double criminalityb) Procedure

c) Distinguished from deportation

What is Extradition, its nature & its purpose? ANSWER: Extradition has thus been characterized as the right of a foreign power, created by treaty, to demand the surrender of one accused or convicted of a crime within its territorial jurisdiction, and the correlative duty of the other state to surrender him to the demanding state. It is not a criminal proceeding. Even if the potential extraditee is a criminal, an extradition proceeding is not by its nature criminal, for it is not punishment for a crime, even though such punishment may follow extradition. It is sui generis, tracing its existence wholly to treaty obligations

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between different nations. It is not a trial to determine the guilt or innocence of the potential extraditee. Nor is it a full-blown civil action, but one that is merely administrative in character. Its object is to prevent the escape of a person accused or convicted of a crime and to secure his return to the state from which he fled, for the purpose of trial or punishment. [Government of Hong Kong Special Administrative Region vs. Olalia, Jr., 521 SCRA 470(2007)]

Under what international document/s may the grant of bail to an extraditee be justified? ANSWER: On December 10, 1948, the United Nations General Assembly adopted the Universal Declaration of Human Rights in which the right to life, liberty and all the other fundamental rights of every person were proclaimed. While not a treaty, the principles contained in the said Declaration are now recognized as customarily binding upon the members of the international community. … In 1966, the UN General Assembly also adopted the International Covenant on Civil and Political Rights which the Philippines signed and ratified. Fundamental among the rights enshrined therein are the rights of every person to life, liberty, and due process.

The Philippines, along with the other members of the family of nations, committed to uphold the fundamental human rights as well as value the worth and dignity of every person. This commitment is enshrined in Section 11, Article II of our Constitution which provides: “The State values the dignity of every human person and guarantees full respect for human rights.” The Philippines, therefore, has the responsibility of protecting and promoting the right of every person to liberty and due process, ensuring that those detained or arrested can participate in the proceedings before a court, to enable it to decide without delay on the legality of the detention and order their release if justified.

In other words, the Philippine authorities are under obligation to make available to every person under detention such remedies which safeguard their fundamental right to liberty. These remedies include the right to be admitted to bail. [Government of Hong Kong Special Administrative Region vs. Olalia, Jr., 521 SCRA 470(2007)]

I. International Human Rights Law1. Universal Declaration of Human

Rights2. International Covenant on Civil and

Political Rights3. International Covenant on

Economic, Social and Cultural Rights

J. International Humanitarian Law and neutrality

1. Categories of armed conflicts

a) International armed conflicts

b) Internal or non-international armed conflict

c) War of national liberation

What is the Doctrine of Command Responsibility? ANSWER: The doctrine has been codified under Art. 28 of the Rome Statute of International Criminal Court, to wit: A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces. (Rome Statute, Art. 28). The first treaty codification of the doctrine of command responsibility was in the Hague Convention IV of 1907.7 A provision therein held belligerent nations responsible for the acts of their armed forces, prefiguring the modern precept of holding superiors

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accountable for the crimes of subordinates if they fail in their duties of control, which is anchored firmly in customary international law. [Rubrico vs. Macapagal-Arroyo, 613 SCRA 233(2010)]

Question: Under what conditions may the doctrine be applied?

Answer: The doctrine applies if:

The military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes;

The military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution. (Rome Statute, Art. 28)

Is command responsibility now part of our laws?

ANSWER: Under RA 9851, An Act Defining and Penalizing Crimes against International Humanitarian Law, Genocide and Other Crimes against Humanity, Organizing Jurisdiction, Designating Special Courts, and for Related Purposes; signed into law on December 11, 2009, it penalizes and defines command responsibility as follows: Section10.Responsibility of Superiors.—In addition to other grounds of criminal responsibility for crimes defined and penalized under this Act, a superior shall be criminally responsible as a principal for such crimes committed by subordinates under his/her effective command and control, or effective authority and control as the case may be, as a result of his/her failure to

properly exercise control over such subordinates, where:

(a) That superior either knew or, owing to the circumstances at the time, should have known that the subordinates were committing or about to commit such crimes;

2. Core international obligations of states in International Humanitarian Law

3. Principles of International Humanitarian Law

a) Treatment of civiliansb) Prisoners of war

4. Law on neutrality

K. Law of the sea 1. Baselines2. Archipelagic states

a) Straight archipelagic baselines b) Archipelagic watersc) Archipelagic sea lanes passage

3. Internal waters4. Territorial sea5. Exclusive economic zone 6. Continental shelf

a) Extended continental shelf7. International Tribunal for the Law

of the Sea

L. International environment law

1. Principle 21 of the Stockholm Declaration

What is Principle 21 of the Stockholm Declaration? ANSWER: States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of

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areas beyond the limits of national jurisdiction.

THE BARRISTERS’ CLUB OFFICERS

Chancellor: ABBYGAILE T. GONZALES

Vice Chancellor: ROMEL L. BASILAN

Secretary: JESSA ALYSSA G. REYES

Treasurer: MILDRED P. AMBROS

PRO: ROBYN B. DELA PENA

PRO: AARON JAMES E. CO

Business Manager: RUDDY ALLEN N. YEE

Business Manager: LESLIE D. RAGUINDIN

SSG Representative: ANNE LUCILLE B. RUIZ

Ex-Officio: RONA B. ESTRADA

Adviser: ATTY. ISAGANI G. CALDERON

Dean, College of Law: ATTY. REYNALDO U. AGRANZAMENDEZ

BAR OPERATIONS 2013


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