POLITICAL LAW

A. The Constitution

1. Definition, Nature and Concepts

The document which serves as the fundamental law of the state1. That written instrument enacted by direct action of the people by which the fundamental powers of the government are established, limited and defined, and by which those powers are distributed among the several departments for their safe and useful exercise for the benefit of the body politic2.

2. Parts

a) Constitution of Liberty - the series of prescriptions setting forth the fundamental civil and political rights of the citizens and imposing limitations on the powers of government as a means of securing the enjoyment of those rights.3

b) Constitution of Government - the series of provisions outlining the organization of the government, enumerating its powers, laying down certain rules relative to its administration, and defining the electorate.4

c) Constitution of Sovereignty - the provisions pointing out the mode or procedure in accordance with which formal changes in the fundamental law may be brought about.5

3. Amendmentsand Revisions

Amendment – isolated or piece-meal change only.6

1 V. Sinco, Philippine Political Law, 11th ed., p.68-702Malcolm, Philippine Constitutional Law, p.6.3 Art. III4Arts. VI, VII, VIII, IX5 Art. XVII6 Required Steps In The Amendatory Process A. Proposal. It may come from: 1. Congress, by a vote of ¾ of all its members. The choice of method of method of proposal, i.e., whether made directly by Congress or through a Constitutional Convention, is within the full discretion of the legislature. (Occena vs. COMELEC, 104 SCRA 1) 2.Constitutional Convention, which may be called into existence either by a 2/3 vote of all the members of Congress, or, if such vote is not obtained, by a majority vote of all the members of Congress with the question of whether or not to call a Convention to be resolved by the people in a plebiscite 3. People, through the power of initiative. Through the “initiative” phase, the people propose the amendments. There is a valid proposal when a proposition has received the approval of at least 3% of the registered voters of each district and 12% of the total number of registered voters nationwide. This is followed by the “referendum” phase where the people vote to reject or ratify the proposal. B. Ratification

1

Revision – a revamp or rewriting of the whole instrument.7

4. Self-Executing and Non-Self-Executing Provisions

Self-executing provision – one which is complete in itselfand becomes operative without the aid of supplementary or enabling legislation, or that which supplies a sufficient rule by means of which the right it grants may be enjoyed or protected.

Non-Self-Executing Provision – one which lays down a general principle.

5. General Provisions8

The flag of the Philippines shall be red, white, and blue, with a sun and three stars, as consecrated and honored by the people and recognized by law.9

The Congress may, by law, adopt a new name for the country, a national anthem, or a national seal, which shall all be truly reflective and symbolic of the ideals, history, and traditions of the people. Such law shall take effect only upon its ratification by the people in a national referendum.10

The State may not be sued without its consent.11

The Armed Forces of the Philippines shall be composed of a citizen armed force which shall undergo military training and serve as may be provided by law. It shall keep a regular force necessary for the security of the State.12

All members of the armed forces shall take an oath or affirmation to uphold and defend this Constitution.

Both amendment and revision signify change in the constitutional text. An amendment envisages of one or a few specific and isolated provisions of the Constitution. Its guiding original intention is to improve specific parts or to add new provisions or to suppress existing ones accordingly as addition or subtraction might be demanded by existing conditions.7 In revision, the guiding intention and plan contemplate a re-examination of the entire document or an important cluster of provisions in the document to determine how and to what extent it should be altered. The end product of a revision can be an important structural change in the government or a change which affects several provisions of the Constitution.A revision of the Constitution cannot be effected through initiative and referendum. The change authorized by Art. XVII, Sec. 2 through initiative and referendum can only be amendment. The main reason is that formulation of provisions revising the Constitution requires both cooperation and debate which can only be done through a collegial body.8 Art. X9 Sec. 110 Sec. 211 Sec. 312 Sec. 4

2

The State shall strengthen the patriotic spirit and nationalist consciousness of the military, and respect for people's rights in the performance of their duty.

Professionalism in the armed forces and adequate remuneration and benefits of its members shall be a prime concern of the State. The armed forces shall be insulated from partisan politics. No member of the military shall engage, directly or indirectly, in any partisan political activity, except to vote.

No member of the armed forces in the active service shall, at any time, be appointed or designated in any capacity to a civilian position in the Government, including government-owned or controlled corporations or any of their subsidiaries.

Laws on retirement of military officers shall not allow extension of their service.

The officers and men of the regular force of the armed forces shall be recruited proportionately from all provinces and cities as far as practicable.

The tour of duty of the Chief of Staff of the armed forces shall not exceed three years. However, in times of war or other national emergency declared by the Congress, the President may extend such tour of duty.13

The State shall establish and maintain one police force, which shall be national in scope and civilian in character, to be administered and controlled by a national police commission. The authority of local executives over the police units in their jurisdiction shall be provided by law.14

The State shall provide immediate and adequate care, benefits, and other forms of assistance to war veterans and veterans of military campaigns, their surviving spouses and orphans. Funds shall be provided therefor and due consideration shall be given them in the disposition of agricultural lands of the public domain and, in appropriate cases, in the utilization of natural resources.15

The State shall, from time to time, review to increase the pensions and other benefits due to retirees of both the government and the private sectors.16

13 Sec. 514 Sec. 615 Sec. 716 Sec. 8

3

The State shall protect consumers from trade malpractices and from substandard or hazardous products.17

The State shall provide the policy environment for the full development of Filipino capability and the emergence of communication structures suitable to the needs and aspirations of the nation and the balanced flow of information into, out of, and across the country, in accordance with a policy that respects the freedom of speech and of the press.18

The ownership and management of mass media shall be limited to citizens of the Philippines, or to corporations, cooperatives or associations, wholly-owned and managed by such citizens.

The Congress shall regulate or prohibit monopolies in commercial mass media when the public interest so requires. No combinations in restraint of trade or unfair competition therein shall be allowed.

The advertising industry is impressed with public interest, and shall be regulated by law for the protection of consumers and the promotion of the general welfare.

Only Filipino citizens or corporations or associations at least seventy per centum of the capital of which is owned by such citizens shall be allowed to engage in the advertising industry.

The participation of foreign investors in the governing body of entities in such industry shall be limited to their proportionate share in the capital thereof, and all the executive and managing officers of such entities must be citizens of the Philippines.19

The Congress may create a consultative body to advise the President on policies affecting indigenous cultural communities, the majority of the members of which shall come from such communities.20

B. General Considerations

1. National Territory21

a. Archipelagic Doctrine

17 Sec. 918 Sec. 1019 Sec. 1120 Sec. 1221 Art. I

4

“The waters around, between and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines.”22

2. State Immunity23

The general rule is that a state may not be sued without its consent. While the doctrine appears to prohibit only suits against the state without its consent, it is also applicable to complaints filed against officials of the state for acts allegedly performed by them in the discharge of their duties. The rule is that if the judgment against such officials will require the state itself to perform an affirmative act to satisfy the same, such as the appropriation of the amount needed to pay the damages awarded against them, the suit must be regarded as against the state itself, although it has not been formally impleaded.

It is a different matter where the public official is made to account in his capacity as such for acts contrary to law and injurious to the rights of plaintiff. Inasmuch as the State authorizes only legal acts by its officers, unauthorized acts of govt. officials or officers are not acts of the State, and an action against the officials or officers by one whose rights have been invaded or violated by such acts, for the protection of his rights, is not a suit against the State within the rule of immunity of the State from suit. The doctrine of state immunity cannot be used as an instrument for perpetrating an injustice.

The cloak of immunity is removed from the moment the public official is sued in his individual capacity such as where he acts without authority or in excess of the powers vested in him. A public official may be liable in his personal capacity for whatever damage he may have caused by his act done with malice and in bad faith, or beyond the scope of his authority or jurisdiction. In this case, the officers are liable for damages.

3. Principles and Policies24

Principles25

22 Art. I, Sec.1, 2nd sentence23 The doctrine is also available to foreign States insofar as they are sought to be sued in the courts of the local State. The added basis in this case is the principle of the sovereign equality of States, under w/c one State cannot assert jurisdiction over another in violation of the maxim par in parem non habet imperium. To do so would "unduly vex the peace of nations." (Cruz.) The consent to be sued, in order to be effective, must come from the State, acting through a duly enacted statute. Waiver of state immunity can only be made by an act of legislative body.

24 Art. II25 Binding rules which must be observed in the conduct of the government (Tanada vs. Angara, see Vicente Sinco, Phil. Political Law 116 (11th ed. 1962)

5

The Philippines is a democratic and republican State26. Sovereignty resides in the people and all government authority emanates from them.27

The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.28

Civilian authority is, at all times, supreme over the military. The Armed Forces of the Philippines is the protector of the people and the State. Its goal is to secure the sovereignty of the State and the integrity of the national territory.29

The prime duty of the Government is to serve and protect the people. The Government may call upon the people to defend the State

26 Manifestations of a Republican State:A. Ours is a government of laws and not of men. Its essence is that all persons, from the highest

official of the land down to the lowest level of the citizenry, must respect the laws, and nobody, how great and painful might he have suffered in the hands of his persecutors or oppressors, must resort to the rule of law rather than taking the law into his hands. It is a weapon of reason and civility.

The SC castigated a Mayor for expelling alleged prostitutes from Manila and dumped them against their will in Davao. The Court said that such act constitutes a wanton violation of the principle that “ours is a government of laws and not of men.” (Villavicencio vs. Lukban, 39 Phil. 778, March 25, 1919) B. Rule of the majority. (Plurality in elections) C. Accountability of public officials D. Bill of rights27 Sec. 1 28Sec. 2 Doctrine of Incorporation The courts have applied the rules of international law in a number of cases even if such rules had not previously been subject of statutory enactments, because these generally accepted principles of international law are automatically part of our own laws. The doctrine of incorporation, as applied in most countries, decrees that rules of international law are given equal standing with, but are not subject to, national legislative enactments. Accordingly, the principle of lex posterior derogat priori takes effect. In states where the constitution is the highest law of the land, such as the Philippines, both statutes and treaties may be invalidated if they are in conflict with the constitution. (Secretary of Justice v. Lantion, G.R. No. 139465, January 18, 2000)29 Sec. 3 Ensured by:

1. the installation of the President, the highest civilian authority as the commander-in-chief of the military [Sec. 18, Art. VII];

2. the requirement that the members of the AFP swear to uphold and defend the Constitution, which is the fundamental law of the civil government;

3. the professionalization of the service and the strengthening of the patriotism and nationalism, and respect for human rights, of the military;

4. insulation of the AFP from partisan politics;5. prohibition against appointment to a civil position;6. compulsory retirement of officers, so as to avoid propagation of power;7. a 3-year limitation on the tour of duty of the Chief of Staff, which although extendible in case

of emergency by the President, depends on Congressional declaration of emergency;8. requirement of professional recruitment, so as to avoid any regional clique from forming

within the AFP [Sec. 5, Art. XVI]; and9. the establishment of a police force that is not only civilian in character but also under the local

executives [Sec. 6, Art. XVI].

6

and, in the fulfillment thereof, all citizens may be required, under conditions provided by law, to render personal, military or civil service.30

The maintenance of peace and order, the protection of life, liberty, and property, and the promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy.31

The separation of Church and State shall be inviolable.32

State Policies33

The Sate shall pursue an independent foreign policy, in its relations with other states the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to self-determination.34

The Philippines, consistent with the national interest, adopts and pursues a policy of freedom from nuclear weapons in its territory.35

The State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the

30 Sec. 431 Sec. 532 Reinforced by:

1. Freedom of religion clause;2. Non-establishment of religion clause;3. No religious test clause [Sec. 5, Art. III];4. No sectoral representative from religious sector [Sec. 5 (2), Art. VI];5. Prohibition against appropriation for sectarian benefits. [Sec. 29(2), Art. VI]; and6. Religious denominations and sects cannot be registered as political parties [Sec. 2 (5) Art. IX-

C].Exceptions:

1. Churches, personages, etc., actually, directly and exclusively used for religious, charitable and educational purposes shall be exempt from taxation [Sec. 28 (3), Art. VI];

2. Prohibition against appropriation for sectarian purposes, except when, priest etc., is assigned to the armed forces, or to any penal institution or government orphanage or leprosarium [Sec. 29 (2), Art. VI];

3. Optional religious instruction for public elementary and high school students [Sec. 3 (3), Art. XIV];and

4. Filipino ownership requirement for educational institutions, except those established by religious groups and mission boards [Sec. 4 (2), Art. XIV].

33 Guidelines for the orientation of the state (see IV Record of the Constitutional Commission, 768 and 580)34 Sec. 735Sec. 8 Policy of freedom from nuclear weapons The Constitution prescribes a policy of freedom from nuclear weapons. The policy includes the prohibition not only of the possession, control, and manufacture of nuclear weapons but also nuclear arm tests. Exception to this policy may be made by the political department; but it must be justified by the demands of the national interest. But the policy does not prohibit the peaceful uses of nuclear energy.

7

people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living, and an improved quality of life for all.36

The State shall promote social justice37 in all phases of national development.38

The State values the dignity of every human person and guarantees full respect for human rights.39

The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government.40

The State recognizes the vital role of the youth in nation-building and shall promote and protect their physical, moral, spiritual, intellectual, and social well-being. It shall inculcate in the youth patriotism and nationalism, and encourage their involvement in public and civic affairs.41

The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men.42

The State shall protect and promote the right to health of the people and instill health consciousness among them.43

The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.44

The State shall give priority to education, science and technology, arts, culture, and sports to foster patriotism and

36 Sec. 9 37 It simply means the equalization of economic, political and social opportunities with special emphasis on the duty of the State to tilt the balance of social forces by favoring the disadvantaged in life.38 Sec. 10 39 Sec. 11 40 Sec. 12 41 Sec. 13 R.A. 7610, which penalizes child prostitution and other sexual abuses, was enacted in consonance with the policy of the State to provide special protection to children from all forms of abuse; thus, the Court grants the victim full vindication and protection granted under the law. (People v. Larin, G.R. No. 128777, October 7, 1998)42 Sec. 14 43 Sec. 1544 Sec. 16 This provision recognizes an enforceable right.

8

nationalism, accelerate social progress, and promote total human liberation and development.45

The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare.46

The State shall develop a self-reliant and independent national economy effectively controlled by Filipinos.47

The State recognizes the indispensable role of the private sector, encourages private enterprise, and provides incentives to needed investments.48

The State shall promote comprehensive rural development and agrarian reform.49

The State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development.50

The State shall encourage non-governmental, community-based, or sectoral organizations that promote the welfare of the nation.51

The State recognizes the vital role of communication and information in nation-building.52

The State shall ensure the autonomy of local governments.53

The State shall guarantee equal access to opportunities for public service, and prohibit political dynasties as may be defined by law.54

45 Sec. 17 The requirement that a school must first obtain governmental authorization before operating is based on the State policy that educational programs and/or operations shall be of good quality and, therefore, shall at least satisfy minimum standards with respect to curricula, teaching staff, physical plant and facilities and administrative and management viability. (Philippine Merchant Marine School, Inc. v. CA, 244 SCRA 770)46Sec. 18 47 Sec. 1948 Sec. 20 49 Sec. 2150 Sec. 22 51 Sec. 23 52 Sec. 24 53 Sec. 25Decentralization of Administration - delegation of administrative powers to local government unit in order to broaden the base of governmental powers. Decentralization of Powers – abdication of political power in the favor of local governments units declared to be autonomous. (Limbonas v. Mangelin, 170 SCRA 786)54 Sec. 26 The purpose of this provision is to give substance to the desire for the equalization of political opportunities

9

The State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption.55

Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.56

4. Separation of Powers57

Legislative power is given to the Legislature whose members hold office for a fixed term; executive power is given to a separate Executive who holds office for a fixed term; and judicial power is held by an independent Judiciary.

The principle of separation of powers is based on the conception that if the totality of governmental powers were concentrated in one person or group of persons, the possibility of establishing a despotic and tyrannical regime capable of suppressing and suffocating the rights of the people becomes a tempting reality.

5. Checks and Balances

This allows one department to resist encroachments upon its prerogatives or to rectify mistakes or excesses committed by the other departments, e.g. veto power of the President as check on improvident legislation.

6. Delegation of Powers

General Rule: Potestasdelegata non potestdelegare

- premised on the ethical principle that delegated power constitutes not only a right but a duty to be performed by the delegate

55 Sec. 27 56 Sec. 28 57 Purpose:to prevent concentration of authority in one person or group of persons that might lead to irreparable error or abuse in exercise to the detriment of republican institutions. (Pangasinan Transportation Co. v. Public Service Commission, G.R. No. 47065. June 26, 1940) The SC nullified the veto exercised by the President adjusting the pension of Justices of the SC and the CA asserting in very strong terms that such an act palpably violates the doctrine of separation of powers. The challenged veto has far-reaching implications which the Court cannot countenance as they undermine the principle of separation of powers. The Executive has no authority to set aside and overrule a decision of the SC. (Bengzon vs. Drilon, 208 SCRA 133, April 15, 1992)

10

through the instrumentality of his own judgment and not through the intervening mind of another.

Exceptions:58

1. Tariff powers of the President59

2. Emergency powers of President60

3. Delegation to the people;61

4. Delegation to Local Government units;62 and5. Delegation to administrative bodies63.

7. Forms of Government

Presidential government – is one in which the state, the sovereign, makes the executive independent of the legislature, both in tenure and prerogative, and furnishes him with sufficient power to prevent the legislature from trenching upon the sphere marked out by the State as executive independence and prerogative.64

Parliamentary government – is one in which the state confers upon the legislature the complete control of the administration of laws. Under this system, the Cabinet or Ministry is immediately and legally responsible to the legislature or one branch thereof, usually the more popular chamber, and mediately or politically responsible to the electorate, while the titular or nominal executive – the King or Chief of State- occupies a position of irresponsibility.65

Unitary or centralized government- is one in which the powers of government are vested in one supreme organ from which all local governing authorities derive their existence and powers. The Philippine government is an example of a unitary form of government.66

58 Permissible Delegation59 Art. VI, Sec. 28 (2) 60 Art. VI, Sec. 23 (2) 61 Art. VI, Sec. 32, Art. X, Sec. 10, Art. XVII, Sec. 2; RA 675362 Art X; RA 716063 power of subordinate legislation64 The principal identifying feature of a presidential form of government is embodied in the separation of powers doctrine. Each department of government exercises powers granted to it by the Constitution and may not control, interfere with or encroach upon the acts done within the constitutional competence of the others. However, the Constitution also gives each department certain powers by which it may definitely restrain the others from improvident action, thereby maintaining a system of checks and balances among them, thus, preserving the will of the sovereign expressed in the Constitution. 65 The essential characteristic of a parliamentary form of government is the fusion of the legislative and executive branches in parliament; the prime minister, who is the head of government, and the members of the cabinet, who are chosen from among the members of parliament and as such are accountable to the latter. Another feature is that the prime minister may be removed from office by a vote of loss of confidence by the parliament. There may be a head of state who may or may not be elected and who usually merely exercises ceremonial functions.

11

Federal form of government – is on in which the governmental powers are, by common sovereign, distributed between a central government and the local government, each being supreme within its own sphere.67

A. Legislative Department68

1. Who May Exercise Legislative Power69

Vested in Congress, except to the extent reserved to the people by provision on initiative and referendum.

a. Initiative and Referendum

Initiative70 – power of the people to propose amendments to the Constitution or to propose and enact legislation through an election called for the purpose.

Referendum71– power of the electorate to approve or reject legislation through an election called for that purpose.

2. Houses of Congress

a. Senate

Composed of 24 senators, elected at large by the qualified voters of the Philippines.

b. House of Representatives

Composed of not more than 250 membersconsisting of:

i. District Representatives – elected from legislative districts apportioned among the provinces, cities and the Metropolitan Manila area;

66 The essence of a unitary form of government is the fact that a single organization has been created by the sovereign people (the people) through their constitution, to which is left the task of providing for the territorial distribution of governmental powers with which it is invested. (Aruego and Laguio)67Aruego and Laguio68 Art. VI69power to propose, enact, amend and repeal laws.70Classes of initiative: 1. Initiative on the Constitution – petition proposing amendments to the Constitution; 2. Initiative on Statutes – petition proposing to enact a national legislation; 3. Initiative on Local Legislation – petition proposing to enact a regional, provincial, city, municipality or barangay law, resolution or ordinance.71 Classes of Referendum: 1. Referendum on Statutes – petition to approve or reject an act or law, or part thereof, passed by Congress; 2. Referendum on Local Laws – legal process whereby the registered voters of the local government units may approve, amend or reject any ordinance enacted by the sanggunian. (Sec. 126, RA 7160 or the LGC of 1991)

12

ii. Party-list Representatives – shall constitute 20% of the total number of representatives, elected through a party-list system of registered national, regional and sectoral parties or organizations.72

(1)District Representatives and Questions of Apportionment

Representative districts are apportioned among provinces, cities and municipalities in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio.73

Each province, irrespective of population, is entitled to one representation; each city with a population of at least 250,000 is entitled to at least one representative.

Each district must be contiguous, compact and adjacent. Gerrymandering74 is not allowed.

Reapportionment within 3 years following return of every census.

(2)Party-List System

The party-list system is a mechanism of proportional representation in the election of representatives to the House of Representatives from national, regional and sectoral parties or organizations or coalitions thereof registered with the COMELEC.75

3.Legislative Privileges, Inhibitions and Disqualifications

A Senator or Member of the House of Representatives shall, in all offenses punishable by not more than six years imprisonment, be privileged from arrest76 while the Congress is in session. No Member

72 The Party-list organization must represent the “marginalized and underprivileged” and the nominees themselves must comply with this qualitative requirement (AngBagongBayani, et al. vs. Comelec G.R. No. 147589, June 26, 2001)73 The underlying principle behind this rule for apportionment is the concept of equality of representation which is a basic principle of republicanism. One man’s vote should carry as much weight as the vote of every other man.74 formation of one legislative district out of separate territories for the purpose of favoring a candidate or a party (Bernas, Reviewer in Philippine Constitution, P. 186)75 The Court held that the intent of the Constitutional Commission and the implementing statute, RA 7941, was not to allow all associations to participate indiscriminately in the party-list system but to limit participation to parties or organizations representing the “marginalized and underprivileged.” 76 Congress must be in session, whether regular or special. It does not matter where the member of Congress may be found (attending the session, socializing in a private party, or sleeping at home); so long as Congress is in session, freedom from arrest holds;

13

shall be questioned nor be held liable in any other place for any speech or debate in the Congress77 or in any committee thereof.

All Members of the Senate and the House of Representatives shall, upon assumption of office, make a full disclosure of their financial and business interests. They shall notify the House concerned of a potential conflict of interest that may arise from the filing of a proposed legislation of which they are authors.78

No Senator or Member of the House of Representatives may hold any other office or employment in the Government, or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries, during his term without forfeiting his seat.Neither shall he be appointed to any office which may have been created or the emoluments thereof increased during the term for which he was elected.79

No Senator or Member of the House of Representatives may personally appear as counsel before any court of justice or before the Electoral Tribunals, or quasi-judicial and other administrative bodies. Neither shall he, directly or indirectly, be interested financially in any contract with, or in any franchise or special privilege corporation, or its subsidiary, during his term of office. He shall not intervene in any

The crime for which the member is to be arrested is punishable by 6 years of imprisonment or less. "Punishable" refers to the maximum possible penalty which a penal statute attaches to the offense. It follows too that if the crime is punishable by 6 years and 1 day of prision mayor or more, the member can be arrested, even if he is session in the halls of Congress. “Speech or debate” includes utterances made in the performance of official functions, such as speeches delivered, statements made, votes cast, as well as bills introduced and other acts done in the performance of official duties. (Jimenez vs. Cabangbang, 17 SCRA 876) To come under the privilege, it is not essential that the Congress be in session when the utterance is made. What is essential is that the utterance must constitute “legislative action,” that is, it must be part of the deliberative and communicative process by which legislators participate in committee or congressional proceedings in the consideration of proposed legislation or of other matters which the Constitution has placed within the jurisdiction of the Congress.77This privilege protects the member concerned from any libel suit that may be filed against him for a speech made "in" the halls of Congress or in any of its committees. Speech is not confined to traditional speech but even to the casting of votes, the making of reports, a debate or discussion, even communicative actions, and any other form of expression. The speech, however, must be made "in" Congress in the discharge of legislative duty. Thus,78 Sec. 12 79 Sec. 13 An incompatible office is a post which a member cannot accept unless he waives or forfeits his seat in Congress. A sensucontrario, if he waives or forfeits his seat, he may accept the other post, since the incompatibility arises only because of his simultaneous membership in both. A forbidden office is one to which a member cannot be ap¬pointed even if he is willing to give up his seat in Congress. The effect of his resignation from the Congress is the loss of his seat therein but his disqualification for the forbidden office nevertheless remains. The prohibition lies in the "fiduciary" nature of the relationship involved. Such a member cannot resign in anticipation of the passage of the law creating such office or increasing its emolument as a way of circumventing the prohibition. However, the prohibition is not forever (as in the Jones Law); it is for the term for which he was elected.

14

matter before any officer of the Government for his pecuniary benefit or where he may be called upon to act on account of his office.80

4. Quorum and Voting Majorities

A majority of each House shall constitute a quorum to do business, but a smaller number may adjourn from day to day and may compel the attendance of absent Members in such manner, and under such penalties, as such House may provide.81

5. Discipline of Members82

Each house may punish its members for disorderly behavior83, and, with the concurrence of 2/3 of all its members, suspend84or expel a member.A penalty of suspension, when imposed, shall not exceed sixty days.

6. Electoral Tribunals and the Commission on Appointments

a. Nature

Electoral Tribunals85

80 Sec. 14 What the Constitution prohibits in the case of members of Congress who are also members of the bar is their personal ap¬pearance before any of these bodies. This is not a prohibition against, the practice of law in any court. Thus, a member may still sign and file his pleadings, give legal advice, continue as partner, and have a partner or associate appear for him in court.81 Sec. 16 (2) The quorum required to conduct business is a majority (1/2 + 1) of all the members. But to pass a law, only the votes of the majority of those present in the session, there being a quorum, are required. This is known as the "shifting majority". To illustrate: 13 members of the Senate are sufficient to constitute a quorum. If only 13 members are present, a vote by 7 in favor of a bill is sufficient to pass it. But as the number of those present increases, the number of votes needed to pass a bill would correspondingly increase, i.e., shift.When a quorum cannot be had, a smaller number may adjourn from day to day, and compel the attendance of the absent (recal¬citrant) members by the means of arrest or such other measures and penalties as the House may provide in its rules. The basis in determining the existence of a quorum in the Senate shall be the total number of Senators who are in the country and within the coercive jurisdiction of the Senate. (Avelino v. Cuenco, 83 Phil. 17)82Sec. 16 (3)83 The determination of the acts which constitute disorderly behavior is within the full discretionary authority of the House concerned, and the Court will not review such determination, the same being a political question. (Osmena vs. Pendatun, 109 Phil. 863)84 for not more than 60 days85 Composition: 1) 3 Supreme Court Justices designated by Chief Justice; and

15

The Electoral Tribunal is independent of the Houses of Congress, and its decision may be reviewed by the SC only upon showing of grave abuse of discretion in a petition for certiorari filed under Rule 65 of the Rules of Court.86

Commission on Appointments87

It acts as a legislative check on the appointing authority of the President. For the effectivity of the appointment of certain key officials enumerated in the Constitution, the consent of the Commission on Appointments is needed.

b. Powers

Electoral Tribunals:

i. Sole judge of all contests relating to the election, returns and qualification of their respective members.88

ii. Rule-making power89

Commission on Appointments90

i. Shall act on all appointments submitted to it within 30 session days of Congress from their submission; and

ii. Power to promulgate its own rules of proceedings.

7. Powers of Congress

a. Legislative

2) 6 members of the Chamber concerned (Senate or HR) chosen on the basis of proportional representation from political parties and parties registered under the party-list systemSenior Justice shall act as Chairman.86 Pena vs. HRET, G.R. No. 123037, March 21, 199787 Composition: 1) 12 Senators and 12 Representatives, elected by each house on the basis of proportional representation from the political parties and parties and organizations registered under the party-list system represented therein. 2) Senate President as ex-officio chairman. 3) Chairman shall not vote except in case of tie.88 Art. VI, Sec. 1789Lazatin v. HRET, 168 SCRA 39190 Commission on Appointments meets only while Congress is in session. Meetings are held either at the call of the Chairman or a majority of all its members. Since the Commission on Appointments is also an independent constitutional body, its rules of procedure are also outside the scope of congressional powers as well as that of the judiciary.

16

(1) Legislative Inquiries and the Oversight Functions

The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected.91

The heads of departments may, upon their own initiative, with the consent of the President92, or upon the request of either House, as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments. Written questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at least three days before their scheduled appearance. Interpellations shall not be limited to written questions, but may cover matters related thereto. When the security of the State or the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session.93

(2) Bicameral Conference Committee

Bills or "suggested laws" are put forward by either Congress or Senate but it has to be approved by both bodies before it can proceed to become law. There are some cases where the version of the bill approved by Congress is different from the one in the Senate or vice-versa. The bill cannot be passed if it has multiple forms because then multiple laws will be created, and each version needs to be approved by both Congress and Senate. To resolve this issue, a bicameral conference committee is created which takes representatives from

91 Sec. 21 Each house or any of its committees may conduct "inquiries in aid of legislation" according to its duly published rules of procedures. To enforce this right, the SC upheld the power of Congress to hold in contempt a person required to appear before Congress or its committee and answer questions relevant to a matter of legislative interest. It is an indispensable requirement for an effective discharge of legislative authority designed to gather data or information vital in the formulation of laws without which legislative power becomes an empty term. However, the exercise of such duty is not illimitable. It has to be exercised in accordance with the limitations imposed by the Constitution: (a) in aid of legislation; (b) in accordance with duly published rules of procedure; (c) rights of persons appearing in, or affected by such, inquiry shall be respected But, if the investigation is no longer “in aid of legislation” but “in aid of prosecution” which the stated purpose of the investigation is to determine the existence of violations of the law, then it is beyond the scope of congressional powers.92 In deference to separation of powers, and because department heads are alter egos of the President, they may not appear without the permission of the President.93 Sec. 22 Oversight functions Such functions are intended to enable Congress to determine how laws it has passed are being implemented.

17

both Congress and Senate and they unify the two differing bills into one coherent law.

(3) Limitations on Legislative Power

(a) Limitations on Revenue, Appropriations and Tariff Measures

All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of local application, and private bills shall originate exclusively in the House of Representatives, but the Senate may propose or concur with amendments.94

(b) Presidential Veto95 and Congressional Override

(1) Every bill passed by the Congress shall, before it becomes a law, be presented to the President. If he approves the same, he shall sign it; otherwise, he shall veto it and return the same with his objections to the House where it originated, which shall enter the objections at large in its Journal and proceed to reconsider it. If, after such reconsideration, two-thirds of all the Members of such House shall agree to pass the bill, it shall be sent, together with the objections, to the other House by which it shall likewise be reconsidered, and if approved by two-thirds of all the Members of that House, it shall become a law. In all such cases, the votes of each House shall be determined by yeas or nays, and the names of the Members voting for or against shall be entered in its Journal. The President shall communicate his veto of any bill to the House where it originated within thirty days after the date of receipt thereof; otherwise, it shall become a law as if he had signed it.

94 Sec. 24 Shall originate exclusively from the House – the initiative for filing of RAT Bills must come from the House, but it does not prohibit the filing in the Senate a substitute bill in anticipation of its receipt of the bill from the House, so long as the action by the Senate is withheld pending the receipt of the House bill. (Tolentino v. Sec.Of Finance, 235 SCRA 630). Appropriation Bill - one the principal and specific aim of which is to appropriate a certain sum of money from the public treasury. Revenue Bill - one that is specifically designed to raise money or revenue through imposition or levy. Private Bill - one that is addressed to a specific private interest. Bill of Local Application - one that is addressed to a particular place or locality or where the interest of a designated community is the thrust of the bill.95 The exercise of the veto power of the President is purely discretionary. He may veto a bill on any ground, whether on constitutional grounds or even on the wisdom and practicability of the bill which cannot be interfered with on the theory that the exercise of such power is a political act.As a general rule, when the President vetoes a bill, he must veto the bill in its entirety. However, the President is allowed to veto any item or items in an appropriation, tariff or revenue bill, but the veto shall not affect the item or items to which he does not object.

18

(2) The President shall have the power to veto any particular item or items in an appropriation, revenue, or tariff bill, but the veto shall not affect the item or items to which he does not object.96

c. Non-Legislative

(1) Informing Function

D. Executive Department97

1. Privileges, Inhibitions and Disqualifications

a. Presidential Immunity

Immunity from suit during his tenure98

b. Presidential Privilege99

Two kinds:

a. Presidential communications privilege – refers to communications, documents or other materials that reflect

96 Sec. 27 When the President vetoes a measure, he should return the measure to the House of origin, indicating his objections thereto in what is commonly known as a "veto message" so that the same can be studied by the members for possible overriding of his vetoUpon consideration of the objections raised by the President in his veto message, the House from which the bill originated shall reconsider the bill. If after such reconsideration, 2/3 of all the members of such house shall agree to pass the bill, it shall be sent together with the objections of the President, to the other house by which it shall likewise be reconsidered. If approved by 2/3 of all the members of that house, it shall become a law. In all such cases, the votes of each house shall be determined by "yeas" or "nays", and the names of the members voting for or against shall be entered in the Journal. [VI, 27(1)] Pocket Veto One by which the President secures the disapproval of a bill by mere inaction after the adjournment of Congress. Pocket veto is not allowed because under the Constitution, where the President fails to communicate his veto on any bill to the House where it originated within 30 days after receipt thereof, the bill becomes a law as if he had signed it. The inability of the President to return the bill within the reglementary period prescribed by the Constitution converts the bill, by inaction, into law.97 Art. VII98 Deemed implied in the Constitution (Bernas, The 1987 Constitution, A Commentary 2003 Ed., p 803) The immunity does not however extend to non-official acts or for wrong doing (Estrada vs. Desierto, G. R. Nos. 146710-15, March 2, 2001) While the President is immune from suit, she may not be prevented from instituting suit. Such immunity must be exercised only by the President himself and not by others on his behalf. (Soliven v. Makasiar, 167 SCRA 393)99 It is highly recognized in cases where the subject of the inquiry relates to a power textually committed by the Constitution to the President, such as the area of military and foreign relations. Under our Constitution, the President is the repository of the commander-in-chief (Art. VII, Sec. 18); appointing (Sec. 16, ibid); pardoning (Sec. 19, ibid); and diplomatic (Secs. 20 and 21, ibid) powers. Consistent with the doctrine of separation of powers, the information relating to those powers may enjoy greater confidentiality than others.( Neri vs. Senate Committee on Accountability of Public Officers and Investigation, et al., G.R. No. 18063, March 25, 2008 citing U.S. Court of appeals In Re: Sealed Case No. 96-3124, June 17, 1997)

19

presidential decision-making and deliberations and that the President believes should remain confidential.

b. Deliberative process privilege –includes advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.

2. Powers

a. Executive and Administrative Powers in General

Executive Powers

The President shall have control of all executive departments, bureaus and offices. He shall ensure that laws are faithfully executed.100

Until and unless a law is declared unconstitutional, President has a duty to execute it regardless of his doubts as to its validity.101

Administrative Powers

(i) Create, abolish, group, coordinate, consolidate, merge or integrate departments, bureaus, offices, agencies, instrumentalities and functions of the government; and transfer functions, appropriations, equipment, property, records and personnel from one ministry, bureau, office, agency or instrumentality to another;

(ii) Standardize salaries, materials and equipment;

(iii) Remove or otherwise discipline officers of the government as may be provided by law; and

(iv) Commute or remove administrative penalties or disabilities upon officials or employees in disciplinary cases.

b. Power of Appointment

(1)In General

100 Sec. 17 "Control" is the power to substitute one's own judgment in that of a subordinate.101 faithful execution clauseSec.1 and 17

20

The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards.

The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress.102

(2) Commission on Appointments Confirmation

i. heads of executive departments;ii. ambassadorsand other public ministers and consuls;iii. officers of the AFP from the rank of colonel or naval

captain; andiv. other ministers whose appointments are vested in him by

the Constitution103

(3) Midnight Appointments

Those made by the President or Acting President two months immediately before the next presidential elections and up to the end of his term, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety.104

(4) Power of Removal

General rule: this power is implied from the power to appoint.

Exception: those appointed by him where the Constitution prescribes certain methods for separation from public service.105

102 Sec. 16 103 Sarmiento v. Mison, GR No. 79974, December 17, 1987104 See Section 15, Art. VII105 e.g. impeachment

21

c. Power of Control106 and Supervision107

(1) Doctrine of Qualified Political Agency108

All executive and administrative organizations are adjuncts of the Executive Department, the heads of the various executive departments are assistants and agents of the Chief Executive, and, except in cases where the Chief Executive is required by the Constitution or law to act in person or the exigencies of the situation demand that he act personally, the multifarious executive and administrative functions of the Chief Executive are performed by and through the executive departments, and the acts of the secretaries of such departments, performed and promulgated in the regular course of business, are, unless disapproved or reprobated by the Chief Executive presumptively the acts of the Chief Executive.109

(2)Executive Departments and Offices

The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed.110

(3)Local Government Units

The President of the Philippines shall exercise general supervision over local governments. Provinces with respect to component cities and municipalities, and cities and municipalities with respect to component barangays, shall ensure that the acts of their component units are within the scope of their prescribed powers and functions.111

d. Military Powers112

106 The power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter.(Mondano v. Silvosa, 97 Phil. 143). It is such power which has been given to the President over all executive officers, from Cabinet members to the lowliest clerk. This is an element of the presidential system where the President is the Executive of the Government of the Philippines, and no other. But the power of control may be exercised by the President only over the acts, not over the actor. (Angangco v. Castillo, 9 SCRA 619)107 It is the power of a superior officer to ensure that the laws are faithfully executed by inferiors. The power of supervision does not include the power of control; but the power of control necessarily includes the power of supervision. The power of the President over local governments is only of general supervision.108 Alter Ego Principle109Villena v. Secretary of Interior, 67 Phil. 451110 Sec. 17111 Sec. 4112 Sec. 18, Art. VIII

22

a. To call out the Armed Force to prevent or suppress lawless violence, invasion or rebellion; and/or organize courts martial and create military commissions.113

b. Suspension of the Privilege of Writ of Habeas Corpus and Declaration of Martial Law114

e. Pardoning Power

(1) Nature and Limitations

Discretionary, may not be controlled by the legislature or reversed by the court, unless there is a constitutional violation.

Limitations:

i. cannot be granted in cases of impeachment;ii. cannot be granted in violations of election laws without

favorable recommendations of the COMELEC;iii. can be granted only after convictions by final judgment

(except amnesty);iv. cannot be granted in cases of legislative contempt or civil

contempt;v. cannot absolve convict of civil liability; andvi. cannot restore public offices forfeited.

(2) Forms of Executive Clemency

Pardon115 – act of grace which exempts individual on whom it is bestowed from punishment which the law inflicts for a crime he has committed.

Commutation – reduction or mitigation of the penalty.

Reprieve – postponement of sentence or stay of execution.

113 Commander-in –Chief clause114 Grounds: invasion or rebellion, when public safety requires it. Duration: not more than 60 days, following which it shall be lifted, unless extended by Congress. Duty of the President to report to Congress: within 48 hours personally or in writing. Authority of Congress to revoke or extend the effectivity of proclamation: by majority vote of all of its members voting jointly. Authority of the Supreme Court: to inquire into the sufficiency of the factual basis for such action, at the instance of any citizen. Decision must be promulgated 30 days within its filing. Proclamation does not affect the right to bail. Suspension applies only to persons facing charges of rebellion or offenses inherent in or directly connected with invasion. Person arrested must be charged within 3 days; if not, must be released. Proclamation does not supersede civilian authority115 Pardon Classified:1.Plenary or partial; and2.Absolute or conditional.

23

Parole – release from imprisonment, but without full restoration of liberty, as parolee is in the custody of the law although not in confinement.

Amnesty – act of grace, concurred in by the Legislature, usually extended to groups of persons who committed political offenses, which puts into oblivion the offense itself.

f. Diplomatic Power116

No treaty or international agreement shall be valid and effective unless concurred in by at least 2/3 of all members of Senate.117

In public international law, the conduct of foreign relations or diplomatic power is vested in the Head of State or sovereign. In States which observe the doctrine of separation of powers, the President holds actual executive power including the conduct of foreign relations.

g. Residual Powers

Whatever is not judicial, whatever is not legislative, is residual power exercised by the President.118

E. Judicial Department119

1. Concepts

a. Judicial Power120

116Some of the foreign relations powers of the Presidenta. The power to negotiate treaties and international agreementsb. The power to appoint ambassadors and other public ministers and consulsc. The power to receive ambassadors and other public ministers accredited to the Philippinesd. The power to contract and guarantee foreign loans on behalf of the Republice. The power to deport aliens

117 Sec. 21118 Marcos v. Manglapus, 178 SCRA 760119Art. VIII120 vested in:1. One Supreme Court; and

24

The duty of courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion

25

amounting to lack or excess of jurisdiction on the part of any branch

26

or instrumentality of government.121

27

The power of the courts, ultimately of the SC, to interpret the Constitution and to declare any legislative or executive act invalid because it is in conflict with the fundamental law. This authority is derived by clear implication from the provision of Sec. 5(2), Art. VIII of the Constitution. Through such power, the SC enforces and upholds the supremacy of the Constitution

(1) Operative Fact Doctrine

An unconstitutional law has an effect before being declared unconstitutional. The doctrine of operative fact as an exception to the

28

general rule, only applies as a matter of equity and fair play.123 It nullifies the effects of an unconstitutional law by recognizing that the existence of a statute prior to a determination of unconstitutionality is an operative fact and may have consequences which cannot always be

29

ignored. The past cannot always be erased by a new judicial

30

declaration.124

31

(2) Moot Questions125

A case becomes moot when there are facts, injuries and heated arguments but for some reason the legal problem has become stale. When a case is moot and academic, it ceases to be a case and controversy. Any decision reached by the court would not be conclusive on the parties.

(3) Political Question Doctrine

Those questions which, under the Constitution, are to be decided by the people in their sovereign capacity; or in regard to

32

which full discretionary authority has been delegated to the

33

legislature or executive branches of government.126

2. Judicial Independence Safeguards

a.. SC is a Constitutional body; may not be abolished by law;b. Members are only removable by impeachment;c. SCmay not be deprived of minimum and appellate

jurisdiction; appellate jurisdiction may not be increased without its advice or concurrence;

d. SC has administrative supervision over all inferior courts and personnel;

e. SC has exclusive power to discipline judges/justices of inferior courts;

f. Members of judiciary enjoy security of tenure;g. Members of judiciary may not be designated to any agency

performing quasi-judicial or administrative functions;h. Salaries of judges may not be reduced; judiciary enjoys fiscal

autonomy;i. SC alone may initiate Rules of Court;j. SC alone may order temporary detail of judges; andk. SC can appoint all officials and employees of the Judiciary

3. Judicial Restraint

A legal term that describes a type of judicial interpretation that emphasizes the limited nature of the court's power. Judicial restraint asks judges to base their judicial decisions solely on the concept of stare decisis, which refers to an obligation of the court to honor previous decisions.

Conservative judges often employ judicial restraint when deciding cases, unless the law is clearly unconstitutional. Judicial restraint is the opposite of judicial activism, in that it seeks to limit the power of judges to create new laws or policy. In most cases, the judicially restrained judge will decide a cases in such a way as to uphold the law established by Congress. Jurists who practice judicial restraint show a solemn respect for the separation of governmental problems.

4. Appointments to the Judiciary

i. Appointed by President from among a list of at least 3 nominees prepared by Judicial and Bar Council for every vacancy.

ii. For lower courts, President shall issue the appointment 90 days from submission of the list.

5. Supreme Court

a. En Banc and Division Cases

34

En Banc Cases127

i. All cases involving the constitutionality of a treaty, international or executive agreement, or law

ii. All cases which under the Rules of Court may be required to be heard en banc

iii. All cases involving the constitutionality, application or operation of presidential decrees, proclamations, orders, instructions, ordinances and other regulations

iv. Cases heard by a division when the required majority in the division is not obtained

v. Cases where the Supreme Court modifies or reverses a doctrine or principle of law previously laid down either en banc or in division

vi. Administrative cases involving the discipline or dismissal of judges of lower courts

vii. Election contests for President or Vice-President

35

Division Cases128

Other cases or matters may be heard in division, and decided or resolved with the concurrence of a majority of the members who actually took part in the deliberations on the issues and voted thereon, but in no case without the concurrence of at least three such members.

36

b. Procedural Rule Making129

Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rule shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special

37

courts and quasi-judicial bodies shall remain effective unless

38

disapproved by the Supreme Court.130

39

40

The Supreme Court shall have administrative supervision over

41

all courts and the personnel thereof.132

F. Constitutional Commissions

1. Institutional Independence Safeguards

a. they are constitutionally created; may not be abolished by statute;

b. each is expressly described as “independent;”c. each is conferred certain powers and functions which cannot

be reduced by statute;d. the Chairmen and members cannot be removed except by

impeachment;e. the Chairmen and members are given fairly a long term of

office of 7 years;

42

f. the Chairmen and members may not be reappointed or

43

appointed in an acting capacity;133

g. the salaries of the Chairmen and members are relatively high and may not be decreased during continuance in office;

h. the Commissions enjoy fiscal autonomy;i. each Commission may promulgate its own procedural rules,

provided they do not diminish, increase or modify substantive rights [though subject to disapproval by the SC];

j. the Chairmen and members are subject to certain disqualifications calculated to strengthen their integrity;

k. the Commissions may appoint their own officials and employees in accordance with Civil Service Law

2. Powers and Functions

44

Powers and Functions of COMELEC:134

a. Enforce and administer law and regulations relative to conduct of elections, plebiscite, initiative, referendum or recall;

b. Exclusive original jurisdiction over all contests relating to election, returns and qualifications of all elective regional, provincial, and city officials.

c. Exclusive appellate jurisdiction over all contests involving elective municipal officials decided by RTC, or involving elective barangay officials by MTC;

d. Decide, except those involving right to vote, all questions affecting elections, including the determination of number and location of polling places, appointment of election officials and inspectors and registration of voters;

e. Deputize, with concurrence of President, law enforcement agencies and instrumentalities for exclusive purpose of insuring free, orderly, honest, peaceful and credible elections;

f. Register, after sufficient publication, political parties, organizations or coalitions which must present their platform or program of government; accredit citizen’s arms;

g. File upon verified complaint or motupropio petitions in court for inclusion or exclusion of voters; investigate and, where appropriate , prosecute cases of violations of elections laws;

h. Recommend to Congress effective measures to minimize election spending, limitation of places and prevent and penalize all forms of election frauds, offenses, malpractice and nuisance candidates; and

i. Submit to President and Congress, comprehensive reports on conduct of each election, plebiscite, initiative, referendum or recall.

Powers and Duties of COA:

a. Examine, audit and settle all accounts pertaining to revenue and receipts of, and expenditures or uses of funds and property owned or held in trust or pertaining to government;

b. Keep general accounts of government and preserve vouchers and supporting papers;

c. Authority to define scope of its audit and examination, establish techniques and methods required therefor; and

d. Promulgate accounting and auditing rules and regulations, including those for prevention and disallowance.

3. Judicial Review

a. Quasi-Judicial Functionsb. Administrative

45

Given the new definition of judicial power as including the power to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government, the courts can review acts of all administrative agencies, not only in the performance

46

of their adjudicative function, but even in the performance of their

47

other functions135 through the special civil action of certiorari.

48

1. Fundamental Powers of the State

a. Concept and Application

Police Power - the power of promoting public welfare by restraining and regulating the use of liberty and property

Power of Eminent Domain - this is also known as the power of expropriation, it is described as the highest and most exact idea of property remaining in the government that may be acquired for some public purpose through a method in the nature of a compulsory sale to the state.

Power of Taxation - Taxes are enforced proportional contributions from persons and property levied by the state by virtue of its sovereignty, for the support of government and for all public needs. Taxation is the method by which these contributions are exacted.

b. Requisites for Valid Exercise

49

Police Power137

50

i. Lawful Subject – the interests of the public in general, as distinguished from those of a particular class, require the exercise of the power;

ii. Lawful Means – the means employed are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive on individuals;

Power of Imminent Domain

Requisites:

i. Necessity – when exercised by:

Congress – political question;Delegate – justiciable question

51

ii. Private property – all private property capable of ownership may be expropriated, except money and choses in action; may include

52

services139

iii. Taking - when:

a. owner actually deprived or dispossessed of his property;

b. there is practical destruction or a material impairment of value of property;

c. owner is deprived of ordinary use of his property; and

53

d. owner is deprived of jurisdiction, supervision and

54

control of his property.140

iv. Public use - has been broadened to include not only uses directly available to the public but also those which redound to their indirect benefit; that only a few would actually benefit from the

55

expropriation of the property foes not necessarily diminish the

56

essence and character of public use.141

v. Just compensation - compensation is qualified by the word just to convey that equivalent must be real, substantial, full and fair; the value of the property must be determined either as of the date of

57

the taking of the property or the filing of the complaint, whichever

58

came first.142

vi. Due process of law – the defendant must be given an opportunity to be heard.

Power of Taxation

Inherent limitations

Public purpose;

a. Non-delegability of power;b. Territoriality or situs of taxation;c. Exemption of government from taxation;d. International comity.

59

Constitutional limitations143

a. Due process of law;b. Equal protection of law;c. Uniformity, equitability, and progressivity of taxation;d. Non-impairment of contracts;e. Non-imprisonment for non-payment of poll tax;f. Origin of appropriation, revenue, and tariff bills; g. Non-infringement of religious freedom;h. Delegation of legislative authority to the President to fix tariff

rates, import and export quotas, tonnage and wharfage dues;i. Tax exemption of properties actually, directly and exclusively

used for religious, charitable and educational purposes;j. Majority vote of all members of Congress required in case of

legislative grant of tax exemptions;k. Non-impairment of the Supreme Court’s jurisdiction in tax

cases;l. Tax exemption of revenues and assets of, including grants,

endowments, donations, or contributions to, educational institutions.

c. Similarities

A. Inherent in the State, exercised even without need of express constitutional grant

B. Necessary and indispensable; State cannot be effective without them

C. Methods by which State interferes with private propertyD. Presuppose equivalent compensationE. Exercised/primarily/by/the//Legislature

60

Differences

Basis Police Power

Power of Eminent Domain

Power of Taxation

2. Such lower courts as may be established by law (Sec. 1, Art. VIII).121 Sec. 1, par.2122 All courts can exercise Judicial Review: The Constitution contemplates that the inferior courts should have jurisdiction in cases involving constitutionality of any treaty or law for Sec. 5 (2), Art. VIII speaks of appellate review of final judgments of inferior courts in cases where such constitutionality happens to be in issue. (J.M. Tuason and Co. v. Court of Appeals, 3 SCRA 696). The Constitution vests the power of judicial review not only in the Supreme Court but also in the RTC. However, in all actions assailing the validity of a statute, treaty, presidential decree, order or proclamation – and not just in actions involving declaratory relief and similar remedies, notice to the Solicitor General is mandatory, as required in Sec. 3, Rule 64 of the Rules of Court. The purpose of this mandatory notice is to enable the Solicitor General to decide whether or not his intervention in the action is necessary (Mirasol v. Court of Appeals, G.R. No. 128448, February 1, 2001)123 Planters Products vs. Fertiphil Corp., G.R. No. 166006, March 14, 2008, citing Republic vs. Court of Appeals, G.R. No. 79732, November 8, 1993, 227 SCRA 509.124 Planters Products, supra citing Peralta vs. Civil Service Commission, G.R. No. 95832, August 10, 1992, 212 SCRA 425.125 Moot refers to a subject for academic argument. They are abstract questions that do not arise from existing facts or rights. The Court may still exercise the power of judicial review even if the issues had become moot and academic when it feels called upon to exercise its symbolic function Exceptions to mootness:a) If the question is capable of repetition and evasive of review. b) If there exits a mere possibility of collateral legal consequences if the court does not act. c) Voluntary cessation from the wrongful act by the defend¬ant, if he is free to return to his old ways.126Tañada v. Cuenco, 100 Phil 1101127 When the Supreme Court sits en banc, cases are decided by the concurrence of a majority of the members who actually took part in the deliberations on the issues in the case and voted thereon. Thus, since a quorum of the SC is eight, the votes of at least five are needed and are enough, even if it is a question of constitutionality. This is a liberalization of the old rule which required a qualified majority of a definite number. Moreover, those who did not take part in the deliberation do not have the right to vote.128 Decisions of a Division of the SC are not appealable to the Court en banc. Decisions or resolutions of a division of the Court, when concurred in by a majority of its members who actually took part in the deliberations on the issues in a case and voted thereon is a decision or resolution of the SC itself. The SC sitting en banc is not an appellate court vis-à-vis its divisions, and it exercises no appellate jurisdiction over the latter. Each division of the Court is considered not a body inferior to the Court en banc, and sits veritably as the Court en banc itself. The only constraint is that any doctrine or principle of law laid down by the Court, either rendered en banc or in division, may be overturned or reversed only by the Court sitting en banc.(Firestone Ceramics v. CA, G.R. No. 127245, June 28, 2000) 129 The SC declared that the 1987 Constitution took away the power of Congress to repeal, alter or supplement rules concerning pleading, practice and procedure. The power to promulgate rules of pleading, practice and procedure is no longer shared by the Court with Congress, more so with the Executive. (Echegaray vs. Secretary of Justice, G.R. No. 132601)

61

Rights regulated

Liberty and property rights

Property rights only

Property rights only

Exercised byGovernmentGovernment; Private entities

Government

Property taken and purpose

Usually noxious; noxious purpose

Wholesome; public purpose

Wholesome: public purpose

CompensatioIntangible, Full and fair Protection

130 Art. VIII, Sec. 5 (5)131 In the absence of any administrative action taken against the RTC Judge by the SC with regard to the Judge’s certificate of service, the investigation conducted by the Ombudsman encroaches into the SC’s power of administrative supervision over all courts and its personnel, in violation of the doctrine of separation of powers. (Maceda v. Vasquez, 221 SCRA 464) 132 Art. VIII, Sec. 6133Brillantes v. Yorac, 192 SCRA 358134 The COMELEC's exercise of its quasi-judicial powers is subject to Section 3 of Article IX-C which expressly requires that 1) all election cases, including pre-proclamation controversies, shall be decided by the COMELEC in division, and 2) the motion for reconsideration shall be decided by the COMELEC en banc. The prosecution of election law violators involves the exercise of the COMELEC's administrative powers. Thus, the COMELEC en banc can directly approve the recommendation of its Law Department to file the criminal information for double registration against petitioners in the instant case. There is no constitutional requirement that the filing of the criminal information be first decided by any of the divisions of the COMELEC. (Baytan vs. Comelec, G.R. No. 153945, February 4, 2003)

135 quasi-legislative, administrative136set of prescriptions setting forth the funda-mental civil and political rights of the individual, and imposing limitations on the powers of government as a means of securing the enjoyment of those rights.137 When exercised by a delegate:express grant by law;within territorial limits – for LGUs except when exercised to protect water supply; andmust not be contrary to law.138 or limitations139 Republic v. PLDT, 26 SCRA 620).140 Requisites: i. expropriator must enter a private property; ii. entry must be more than a momentary period; iii. entry must be under a warrant or color of authority; iv. property must be devoted to public use or otherwise informally appropriated or injuriously affected;v. utilization of the property must be in such a way as to oust the owner and deprive him of beneficial enjoyment of the property (Republic v. Castelvi, 58 SCRA 336).141Manosca v. Court of Appeals, 252 SCRA 412Once expropriated change of public use is of no moment. It is well within the rights of the condemnor as owner to alter and decide its use so long as it still for public use. (Republic vs. C.A., G.R. No. 146587, July 2, 2002)142

Formula: -- fair market value of the property, to which must be added the consequential damages, minus the consequential benefits, but in no case will the consequential benefits exceed the consequential damages

62

n

altruistic feeling of contributing to the public good

equivalent of the property taken

given / or public improvements

d. Delegation

Policepower144

Congress may validly delegate this power to the President, to administrative bodies and to lawmaking bodies of local government units. Local government units exercise the power under the general welfare clause145 and under Secs. 391, 447, 458 and 468, R.A. 7160.146

Power of Eminent Domain

Congress may validly delegate this power to the President, administrative bodies, local government units, and even private enterprises performing public services.

Power of Taxation

Congress may validly delegate this power to local government bodies147 and to a limited extent, the President when granted delegated tariff powers148

2. Private Acts and the Bill of Rights

3. Due Process149

Fair market value – the price that maybe agreed upon by parties who are willing but are not compelled to enter into a contract of sale.Consequential damages – consist of injuries directly caused on the residue of the private property taken by reason of expropriation143 Any question regarding the constitutionality of a tax measure must be resolved in favor of its validity. Any doubt regarding the taxability of any person under a valid law must be resolved in favor of that person and against the taxing power. Any doubt as to the applicability of a tax exemption granted to a person must be resolved against the exemption.144 inherently vested in the Legislature145 Sec. 16, R.A. 7160, see Reference146 See Reference147 Sec. 5, Art. X148Sec. 28 (2), Art. VI149 That which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial (Darmouth College v. Woodward, 4 Wheaton 518).

63

a. Relativity of Due Process

The guaranties of due process are universal in their application to all persons within the territorial jurisdiction, without regard to any differences of race, color or nationality. The word “person” includes aliens. Private corporations are within the scope of the guaranties insofar as their properties are concerned.

b. Procedural and Substantive Due Process

Procedural Due Process-due process was understood to relate chiefly to the mode of procedure which government agencies must follow, it was understood as a guarantee of procedural fairness. Its essence is a “law which hears before it condemns”. Thus, it serves as a restriction on actions of judicial and quasi-judicial agencies of government.

Substantive Due Process -the due process clause must be interpreted both as a procedural and a substantive guarantee. It must be a guarantee against the exercise of arbitrary power even when the power is exercised according to proper forms and procedure. Thus, it serves as a restriction on government’s law and rule-making power.

c. Constitutional and Statutory Due Process

No person shall be deprived of life, liberty or property without due process of law.150

d. Hierarchy of Rights

The primacy of human rights over property rights are recognized.

Because these freedoms are “delicate and vulnerable, as well as supremely precious in our society” and the “threat of sanctions may deter their exercise almost as potently as the actual application of sanctions,” they “need breathing space to survive,” permitting government regulation only “with narrow specificity.”

Property and property rights can be lost through prescription; but human rights are imprescriptible. If human rights are extinguished by the passage of time, then the Bill of Rights us a useless attempt to limit the power of government and ceases to be an efficacious shield against tyranny of officials, of majorities, of the influential and powerful, and of oligarchs.

150 Art. III, Sec. 1

64

Property is not a basic right. Property has an intimate relation with life and liberty.

Protection of property was a primary object of the social compact and that the absence of such protection could well lead to anarchy and tyranny. Property is an important instrument for the preservation and enhancement of personal dignity.

Property is as important as life and liberty – and to protect their (poor) property is really to protect their life and their liberty

e. Judicial Standards of Review

Judicial review can only be exercised in an actual case and controversy.

This means (1) a party with a personal and substantial interest, (2) an appropriate case, (3) a constitutional question raised at the earliest possible time, and (4) a constitutional question that is the very lismota of the case, i.e. an unavoidable question.151

f. Void-for-Vagueness Doctrine

The accused is denied the right to be informed of the charge against him, and to due process as well, where the statute itself is couched in such indefinite language that it is not possible for men of ordinary intelligence to determine therefrom what acts or omissions are punished and, hence shall be avoided.152

4. Equal Protection

Nor shall any person be denied the equal protection of the laws.153

a. Concept

“All person or things similarly situated should be treated alike, both as to rights conferred and responsibilities imposed”. The equal protection clause is a specific constitutional guarantee of the Equality of the Person. The equality guarantees the “legal equality or as it is usually put, the equality of all persons before the law. Under it, each individual is dealt with as an equal person in the law, which does not treat the

151 People v Vera, 66 Phil 56 (1937)152Nachura, Reviewer in Political Law, p. 131153 Art. III, Sec.1

65

person differently because of who he is or what he is or what he possess.154

b. Requisites for Valid Classification

i. Substantial distinction ii. Germane to the purpose of the law-the distinction which must make for real differences should have reasonable relation to the purpose of the law.iii. Not limited to existing conditions only

iii. Must apply equally to all members of the same class

5. Searches and Seizures155

a. Concept

Not just a circumscription of the power of the state over a person’s home and possessions. More important, it protects the privacy and sanctity of the person himself. It is a guarantee of the right of the people to be secure in their “persons…against unreasonable searches and seizures”. It is therefore also a guarantee against unlawful arrests and other forms of restraint on the physical liberty of the person. The constitutional guarantee is not a prohibition of all searches and seizures but only of “unreasonable” searches and seizures.

Available to all persons, including aliens whether accused of a crime or not. Artificial person are also entitled to the guarantee, although they may be required to open their books of accounts for examination by the state in the exercise of police and taxing powers.

b. Warrant Requirement

(1)Requisites

1. Probable Cause156

154 The equality guaranteed however, “is not disembodied equality”. It does not deny to the state the power to recognize and act upon factual differences between individuals and classes. It recognizes that inherent in the right to legislate is the right to classify.155“The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce and particularly describing the place to be searched and the persons or things to be seized.” (Art. III, Sec. 2).156 Such facts and circumstances antecedent to the issuance of the warrant that in themselves are sufficient to induce a cautious man to rely on them and act in pursuance thereof Unlike proof of probable cause for warrant of arrest, probable cause for a search warrant need not point to a specific offender. But in either case, it should be emphasized that what is required is not proof beyond reasonable doubt but merely probable cause. Evidence required to establish guilt is not necessary.

66

2. Determination of probable Cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce157

3. Must refer to one Specific offense4. Particularity of Description158

c. Warrantless Searches

Eight Instances of Valid Warrantless Searches and Seizures:

1. When the right is voluntarily waived159

2. When there is valid reason to “stop-and-frisk”160

3. Where the search (and seizure) is an incident to a lawful arrest161.4. Search of Vessels and Aircrafts162

157 Art. III, Sec. 2 What the constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of the probable cause. In satisfying himself of the existence of the probable cause for the issuance of the warrant of arrest, the judge is not required to personally examined the complainant and his witnesses and on the basis thereof issue a warrant of arrest. He may also rely on the prosecutor’s report or if on the basis thereof, he finds no probable cause, he may disregard the prosecutor’s report and require the submission of supporting affidavits of witnesses to aid him in arriving at conclusion as to the existence of probable cause. (Soliven V Makasiar, 167 S 393) Where the court upheld that in the exercise of the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of the probable cause for the issuance of the warrant of arrest, the judge is not required to personally examine the complainant and his witnesses. (Cruz Jr. V People, 233 SCRA 439) In the preliminary examination for the issuance of a warrant of arrest, the court is not tasked to review in detail the evidence submitted during the preliminary investigation. It is sufficient that the judge personally evaluates the report and supporting documents submitted by the prosecution in determining probable cause.158 The court concluded in the case of People vs. Veloso, 42 P 886 that it is invariably recognized that the warrant for the apprehension of an unnamed party is void “except those causes where it contains a descriptio personae such as will enable the officer to identify the accused.” The description must be sufficient to indicate clearly the proper person upon whom the warrant is to be served. There is, however, a limit to John Doe warrants. Thus, a warrant for the arrest of fifty John Does is of the nature of a general warrant which does not satisfy the requirement of particularity of description. (Pangandaman V Casar 159 S 599) The “scatter-shot warrant” charging more than one offense was declared null and void and the seizure of the money, which was not indicated in the warrant was held unlawful.159Requisites of Valid Waiver 1.That the right exists 2.That the persons involved had knowledge, either actual or constructive of the existence of such right 3.That the said person had an actual intention to relinquish the right160 The vernacular designation of the right of a police officer to stop a citizen on the street, interrogate him and pat him for weapon(s). (Terry V Ohio 392 US 1)161Rule: Apply strictly Rule 126, Sec. 13, 2000 Revised Rules on Criminal Procedure:

“A person lawfully arrested maybe searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant”.

162 Where a fishing vessel found to be violating fishery laws maybe seized without a warrant on two grounds: firstly, because they are usually equipped with powerful motors that enable them to elude pursuit and secondly, because the seizure would be an incident to a lawful arrest. (Roldan VS Arca, 65 S 336)

67

5. Search of Moving Vehicles/Automobiles at borders or constructive borders163.

6. Where prohibited articles are in plain view164

7. Inspection of buildings and other premises for the enforcement of fire, sanitary and building regulations

8. Search and Seizure under exigent and emergency circumstances165

9. Conduct of “areal target zoning” and “saturation drive” in the exercise of military powers of the President

10. Visual search at checkpoints

d. Warrantless Arrests

Instances of Valid Warrantless Arrests166

“A peace officer or a private person may, without a warrant, arrest a person:

1. When, in his presence, the person to be arrested has committed, is actually committing or is attempting to commit an offense167

2. When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested committed it168

163Rule:Vehicles/automobiles may be searched only at borders or constructive borders. Search made within the interior of territory is justified only if there is probable cause.164Under this exception, the objects “falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and maybe introduced in evidence”.Rule: The discovery must be “Inadvertent” Thus, if an officer encounters prohibited objects only after poking around, the discovery would not be inadvertent.165Where the SC deemed it a bounded duty, in light of advertence thereto by the parties, to delve into the legality of the warrantless search conducted by the raiding team. The instant case falls under one of the exceptions to the prohibition against warrantless search. There was general chaos and disorder at that time because of the simultaneous and intense firing within the vicinity of the office and in the nearby Camp Aguinaldo which was under attack by rebel forces. The courts in the surrounding areas were obviously closed and for that matter, the building and houses therein were deserted. The raiding team had no opportunity to apply for and secure a search warrant from the courts. Under such urgency and exigency of the moment, a search warrant could lawfully be dispensed with. (People VS de Gracia, July 6, 1994)166 Sec. 5, Rule 113, 2000 Revised Rules of Criminal Procedure-167The most common application of this in flagrante delicto rule is the buy-bust operation conducted to enforce the Dangerous Drugs Act. A buy-bust operation is a form of entrapment. The method is for an officer to pose as a buyer. He however neither instigates nor induces the accused to commit a crime because in these cases the seller has already decided to commit a crime. Since the offense happens right before the eyes of the officer, there is no need for a warrant either for the seizure of the goods or for the apprehension of the offender (People V Burgos)168 Sec. 5 (b) is otherwise known as the rule on hot pursuit arrests. In effecting this type of arrest, it is not enough that there is reasonable ground to believe that the person to be arrested has committed a crime. A crime must in fact or actually have been committed first. The fact of the commission of the offense must be

68

3. When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending or has escaped while being transferred from one confinement to another.

e. Administrative Arrests169

Warrant of Arrest may be issued by administrative authorities but only for purpose of carrying out a final finding of a violation of a law, cannot be for purpose of investigation.

f. Drug, Alcohol and Blood Tests

6. Privacy of Communications and Correspondence

a. Private and Public Communications

b. Writ of Habeas Data

It is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or

undisputed. Law enforcement officers may not actually witness the execution of acts constituting the offense, but they must have direct knowledge or view of the crime right after its commission. They should know for a fact that a crime was committed. Also, the arresting officers themselves must have personal knowledge of facts showing that the person to be arrested, the suspect, performed the criminal act. 169Where the SC ruled that the constitutional provision against unreasonable searches and seizures does not require judicial intervention in the execution of a final order of deportation issued in accordance with law. It contemplates an order of arrest in the exercise of judicial power as a step preliminary to prosecution for a given offense of administrative action, not as a measure indispensable to carry out a valid decision by a competent official, such as legal order or deportation issued by the Commission on Immigration in pursuance of a valid legislation. The requirement for probable cause does not extend to deportation proceedings. (Morano V Vivo, 20 S 562)

69

information regarding the person, family, home and correspondence of the aggrieved party.

7. Freedom of Expression

a. Concept and Scope

(1) Prior Restraint170

Prior restraint means official governmental restrictions on the press or other forms of expression in advance of actual publication or dissemination. Its most blatant form is a system of licensing administered by an executive officer. Movie Censorship, although not placed on the same level as press censorship, also belongs to this type of prior restraint. The guarantee of freedom of expression also means a limitation on the power of the state to impose subsequent punishment.

(2)Subsequent Punishment

Without this assurance, the individual would hesitate to speak for fear that he might be held to account for his speech, or that he might be provoking the vengeance of the officials he may have criticized. However, the freedom is not absolute, and may be properly regulated in the interest of the public. Accordingly, the state may validly impose penal and/or administrative sanctions, such as in the following:

1. Libel171

2. Obscenity172

3. Criticism of Official Conduct173

b. Content-Based and Content-Neutral Regulations

O’Brien Test:

170 censorship The constitution, as the paramount law, is exempt from the previous restraints by the executive and legislative branches. Therefore, constitutional guaranties like liberty of the press are superior over legislative acts or law.171 A public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, conditions, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical persons, or to blacken the memory or one who is dead.172 The determination of what is obscene is a judicial function173 Where the court said that a publication that tends to impede, embarrass or obstruct the court and constitutes a clear and present danger to the administration of justice is not protected by the guarantee of press freedom and punishable by contempt. (In re: Atty. Jurado) A Senator was punished for contempt for having attacked a decision of the Supreme Court which he called incompetent and narrow minded, and announcing that he would file a bill for its reorganization. (In re Sotto)

70

1. It is within the constitutional power of the Government2. It furthers an important or substantial governmental interest3. The governmental interest is unrelated to the suppression of

free expression4.If the incidental restriction on alleged freedom is no greater than is essential to that interest

c. Facial Challenges and the Overbreadth Doctrine

Facial Challenge

A manner of challenging a statute in court, in which the plaintiff alleges that the statute is always, and under all circumstances, unconstitutional, and therefore, void.

Overbreadth Doctrine

Permits a party to challenge to a statute even though, as applied to him, it is not unconstitutional, but it might be if applied to others not before the Court whose activities are constitutionally protected.

d. Tests

1. Clear and Present Danger Rule – whether the words are used in such circumstance and of such a nature as to create a clear and present danger that they will bring about the substantive evils that the state has the right to prevent.174

2. Dangerous Tendency Rule – if the words uttered create a dangerous tendency of an evil which the State has the right to prevent.175

3. Balancing of Interests test – when particular conduct is regulated in the interests of public order, and the regulations results in an indirect, conditional, partial abridgment of speech, the duty of the

174 The substantive evil must be extremely serious and the degree of immense extremely high before utterances can be punished. “Clear” means causal connection between danger of substantive evil arising from utterance questioned; “Present” refers to time-imminent and immediate danger; Thus, danger must not only be probable but very likely inevitable.)175 Under this rule, the constitutionality of a statute curtailing speech is determined in the same manner that the constitutionality of any statute is determined, namely by answering the question whether a statute is “reasonable”. That if the words uttered create a dangerous tendency of an evil which the state has the right to prevent, then such words are punishable. It is sufficient if the natural tendency and the probable effect of the utterance were to bring about the substantive evil that the legislative body seeks to prevent. (Cabansag V Fernandez, 102 Phil 152)

71

courts is to determine which of the two conflicting interests demands the greater protection under the particular circumstances presented.

e. State Regulation of Different Types of Mass Media

f. Commercial Speech

Communication which no more than proposes a commercialtransaction.176

g. Private v. Government Speech

h. Heckler’s Veto

Occurs when an acting party's right to freedom of speech is curtailed or restricted by the government in order to prevent a reacting party's behavior. The common example is that of demonstrators177 causing a speech178 to be terminated in order to preserve the peace.179

8. Freedom of Religion

a. Non-Establishment Clause

The State cannot set up a church, nor pass laws which aid one religion, aid all religion, or prefer one religion over another nor force nor influence a person to go to or remain away from Church against his will or force him to profess a belief or disbelief in any religion.180

The intermediate views are chiefly two: (1) the non-establishment clause prohibits only direct support of institutional religion but not support indirectly accruing to churches and church agencies through support given to members; (2) both direct and indirect aid to religion are prohibited but only if the support involves preference of one religion over another or preference of religion over irreligion.

176 To enjoy protection: 1. It must not be false or misleading; and 2. It should not propose an illegal transaction. May be regulated if: 1. Government has a substantial interest to protect; 2. The regulation directly advances that interest; and 3. It is not more extensive than is necessary to protect thatinterest. (Central Hudson Gas and Electric Corp. v. Public Service Commission of NY, 447 US 557)177 reacting party178 given by the acting party179 The term was coined by University of Chicago professor of law Harry Kalven.180This reinforces Sec. 6, Art.II, as the separation of Church and State.

72

While there is no unanimity in non-establishment as a political principle, there is substantial agreement on the values non-establishment seeks to protect. There are two: voluntarism and insulation of the political process from interfaith dissension.181

b. Free Exercise Clause

At the basis of the free exercise clause is the respect for the inviolability of the human conscience.

1. Right to Believe – absolute2. Right to act according to one’s beliefs – subject to state

regulation

The absoluteness of the freedom to believe carries with it the corollary that the government, while it may look into the good faith of a person, cannot inquire into a person’s religious pretensions. Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs. The moment however, belief flows over into action, it becomes subject to government regulation.

9. Liberty of Abode and Freedom of Movement182

181 In effect, therefore, what non-establishment calls for is government neutrality in religious matters. Such government neutrality may be summarized in four general propositions:1.Government must not prefer one religion over another or religion over irreligion because such preference would violate voluntarism and breed dissension;2.Government funds must not be applied to religious purposes because this too would violate voluntarism and breed interfaith dissension;3.Government action must not aid religion because this too can violate voluntarism and breed interfaith dissension;4.Government action must not result in excessive entanglement with religion because this too can violate voluntarism and breed interfaith dissension.182 It may be impaired even without the court order, but the appropriate executive officer is not assumed with arbitrary discretion to impose limitations. He can impose limits only on the basis of “national security, public safety or public health” and “as may be provided by law”. Impairment of this liberty, moreover, must be subject to judicial review as even measures taken by the executive are subject to judicial review. The constitution itself sets down the measure of allowable

73

“The liberty of Abode and of changing the same within the limits prescribed by law shall not be impaired.

a. Limitations

1. Liberty of abode - upon lawful order of the court2. Right to travel -

i. In the interest of national security, public safety, public health, as may be provided by law;

ii. any person on bail183

b. Return to One’s County

Everyone has the right to leave any country, including his own and to return to his country.184

No one shall be arbitrarily deprived of the right to enter his own country.185

10. Right to Information

a. Limitations

i. National Security and intelligence information186

ii. Trade or Industrial Secrets187

iii. Criminal matters188

iv. Other Confidential information.189

impairment: necessity “in the interest of national security, public safety or public health” as well as explicit provisions of statutory law or the Rules of Court. Thus, for instance, a person who is out of bail may be prevented from leaving the country. The right to travel should not be “construed as delimiting the inherent power of the courts to use all means necessary to carry their orders into effect in criminal cases pending before them. When by law jurisdiction is conferred on a Court or judicial officer, all auxiliary writs, process and other means necessary to carry it into effect may be employed by such court or officer.183Silverio vs. CA, G.R. No. 94284. April 8, 1991.184 Art. 13(2), Universal Declaration of Human Rights185 Art. 12(4), Covenant on Civil and Political Rights186 This jurisdiction recognizes the common law holding that there is a governmental privilege against public disclosure with respect to state secrets regarding military, diplomatic and other national security matters. Likewise, information on inter-government exchanges prior to the conclusion of treaties and executive agreements may be subject to reasonable safeguards for the sake of national interest;187 pursuant to the Intellectual Property Code (RA No. 8293,approved on June 6,1997 & other related laws) and Banking Transactions (pursuant to the Secrecy of Bank Deposits Act (RA No. 1405, as amended)].188 such as those relating to the apprehension, the prosecution and the detention of criminals which courts may not inquire into prior to such arrest, detention and prosecution;189 The Ethical Standards Act (RA 6713, enacted on Feb.20,1989) further prohibits public officials and employees from using or divulging “confidential or classified information officially known to them by reason of their office and not made available to the public”. (Sec, 7[c], ibid.). Other acknowledged limitations to information access include diplomatic correspondence, closed door Cabinet meetings and

74

b. Publication of Laws and Regulations

Mysterious pronouncements and rumored rules cannot be recognized as binding unless their existence and contents are confirmed by a valid publication intended to make full disclosure and give proper notice to the people.

c. Access to Court Records

The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.190

d. Right to Information Relative to

(1) Government Contract Negotiations

The right to information contemplates inclusion of negotiations leading to the consummation of the transaction. Otherwise, the people can never exercise the right if no contract is consummated, or if one is consummated, it may be too late for the public to expose its defects. However, the right only affords access to records, documents and papers, which means the opportunity to inspect and copy them at his expense. The exercise is also subject to reasonable regulations to protect the integrity of public records and to minimize disruption of government operations.191

Executive sessions of either house of Congress, as well as the internal deliberations of the Supreme Court. (Chavez V PCGG,299 S 744)190 Art. III, Sec. 7 The constitutional right, however, does not mean that every day is an open house in public offices. The right given by the Constitution is “subject to such limitations as may be provided by law”. Thus, while access to official records may not be prohibited, it certainly may be regulated. The regulation can come either from statutory law and from what the Supreme Court has called the “inherent power [of an officer] to control his office and the records under his custody and to…. Exercise [same discretion] as to the manner in which persons desiring to inspect, examine or copy the record may exercise their rights. The question then boils down to a determination of the scope of official regulatory discretion. In determining the allowable scope of official limitation on access to official records, it is important to keep in mind that the two sentences of Sec.7 guarantee only one general right, that is, the right to information on matters of public concern. The right of access to official record is given as an implementation of the right to information. Thus, the right to information on matters of public concern is both the purpose and the limit of the right of access to public documents. Thus, too, regulatory discretion must include both authority to determine the manner of access to them.191 Chavez vs. PEA and Amari, G.R. No. 133250, July 9, 2002

75

(2) Diplomatic Negotiations

Recognized as privileged in this jurisdiction.It bears emphasis, however, that such privilege is only presumptive. For as Senate v. Ermita holds, recognizing a type of information as privileged does not mean that it will be considered privileged in all instances. Only after a consideration of the context in which the claim is made may it be determined if there is a public interest that calls for the disclosure of the desired information, strong enough to overcome its traditionally privileged status.192

11. Right of Association

It shall not be impaired without due process of law.193

12. Eminent Domain194

a. Concept

This is also known as the power of expropriation, it is described as the highest and most exact idea of property remaining in the government that may be acquired for some public purpose through a method in the nature of a compulsory sale to the state.

b. Expansive Concept of "Public Use"

Any use directly available to the general public as a matter of right and not merely of forbearance or accommodation. It does not matter whether the direct use of the expropriated property by the public be for free or for a fee. Any member of the general public, as such, can demand the right to use the converted property for his direct and personal convenience.

This cover uses which, while not directly available to the public, redound to their indirect advantage or benefit.

192Akbayan, et al. vs. Thomas Aquino, et al., G.R. No. 170516, July 16, 2008193Also guarantees the right not to join an association.194 It is well settled that eminent domain is an inherent power of the State that need not be granted even by the fundamental law. Se. 9, Art. III of the Constitution, in mandating that private property shall not betaken without just compensation, merely imposes a limit on the government’s exercise of this power and provides a measure of protection to the individual’s right to property. An ejectment suit should not ordinarily prevail over the State’s power of eminent domain. (Republic v. Tagle, G.R. No. 129079, December 2, 1998)

76

c. Just Compensation

(1) Determination

The full and fair equivalent of the property taken; it is the fair market value of the property, to which must be added the consequential damages, if any, minus the consequential benefits, if any, but in no case shall the consequential benefits exceed the consequential damages.195

(2) Effect of Delay

Without prompt payment, compensation cannot be considered just, for the property owner is made to suffer the consequences of being immediately deprived of his land while being made to wait for a decade or more before actually receiving the amount necessary to cope with his loss.

d. Abandonment of Intended Use and Right of Repurchase

The property owner’s right to repurchase the property depends upon the character of the title acquired by the expropriator, i.e., if land is expropriated for a particular purpose with the condition that when that purpose is ended or abandoned, the property shall revert to the former owner, then the former owner can re-acquire the property. In this case, the terms of the judgment in the expropriation case were very clear and unequivocal, granting title to the lot in fee simple to the Republic. No condition on the right to repurchase was imposed.196

e. Miscellaneous Application

Private property shall not be taken for public use without just compensation.197

195 The ascertainment of what constitutes just compensation for property taken in eminent domain cases is a judicial prerogative, and PD 76, which fixes payment on the basis of the assessment by the assessor or the declared valuation by the owner, is unconstitutional. (EPZA v. Dulay, 148 SCRA 305)196Mactan-Cebu International Airport Authority vs. Court of Appeals, G.R. No. 139495, November 27, 2000197 Art. III, Sec. 9

77

The State may, in the interest of national welfare or defense, establish and operate vital industries and, upon payment of just compensation, transfer to public ownership utilities and other private enterprises to be operated by the Government.198

The State shall, by law, undertake an agrarian reform program founded on the right of farmers and regular farm workers, who are landless, to own directly or collectively the lands they till or, in the case of other farm workers, to receive a just share of the fruits thereof. To this end, the State shall encourage and undertake the just distribution of all agricultural lands, subject to such priorities and retention limits as the Congress may prescribe, taking into account ecological, developmental, or equity considerations, and subject to the payment of just compensation. In determining retention limits, the State shall respect the right of small landowners. The State shall further provide incentives for voluntary land- sharing.199

The State shall, by law, and for the common good, undertake, in cooperation with the private sector, a continuing program of urban land reform and housing which will make available at affordable cost decent housing and basic services to underprivileged and homeless citizens in urban centers and resettlement areas. It shall also promote adequate employment opportunities to such citizens. In the implementation of such program the State shall respect the right of small property owners.200

13. Contract Clause

No franchise, certificate, or any other form of authorization for the operation of a public utility shall be granted except to citizens of the Philippines or to corporations or associations organized under the laws of the Philippines, at least sixty per centum of whose capital is owned by such citizens; nor shall such franchise, certificate, or authorization be exclusive in character or for a longer period than fifty years. Neither shall any such franchise or right be granted except under the condition that it shall be subject to amendment, alteration, or repeal by the Congress when the common good so requires. The State shall encourage equity participation in public utilities by the general public. The participation of foreign investors in the governing body of any public utility enterprise shall be limited to their proportionate share in its capital, and all the executive and managing officers of such corporation or association must be citizens of the Philippines.201

198 Art. XII, Sec. 18199 Art. XIII, Secs. 4 & 9200 Sec. 9201 Sec. 11

78

a. Contemporary Application of the Contract Clause

The contract clause protects public contracts, including onerous franchises and privileges granted by the state. The charter itself constitutes a contract with the state.

The reservation was made in Article XII, Section 11 of the Constitution. With or without a reservation clause, franchises are subject to alterations through a reasonable exercise of the police power. They are also subject to alterations by the power to tax which like police power, cannot be contracted away.

14. Legal Assistance and Free Access to Courts

Free access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any person by reason of poverty.202

15. Rights of Suspects203

a. Right to Remain Silent204

b. Right to a competent and independent counsel, preferably of his own choice

c. Right to be provided with the services of counsel if hecannot afford the services of one205

202 ibid203 Art. III, Sec. 12204 Under the right against self-incrimination in Sec. 17, only an accused has the absolute right to remain silent. A person who is not an accused may assume the stance of silence only when asked an incriminating question. Under Sec. 12, however, a person under investigation has the right to refuse to answer any question. His silence, moreover, may not be used against him.205 RA 7438, Sec. 2(a) provides that “…. Any person under arrested, detained or under custodial investigation shall be at all times be assisted by counsel. Where the court ruled that the right to counsel is intended to preclude the slightest coercion or would lead the accused to admit false. The lawyer, however, should never prevent an accused from freely and voluntarily telling the truth. (People VsEnanoria)Where the court ruled that the Constitution requires that counsel be independent. Obviously, he cannot be a special counsel, public or private prosecutor, counsel of the police, or a municipal attorney whose interest is admittedly adverse to the accused. (People V Bandula 232 SCRA 566) The right to counsel does not mean the accused must personally hire his own counsel. The constitutional requirement is satisfied when a counsel is engaged by acting on behalf of the person under investigation or appointed by the court upon petition by said persons or by someone on his behalf.

79

d. Right to be informed of such rights206

a. Availability

Available only “under custodial investigation” for the commission of an offense.”207

b. Requisites

1. The person in custody must be informed at the outset in clear and unequivocal terms that he has a right to remain silent.

2. After being so informed, he must be told that anything he says can and will be used against him in court.

3. He must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during the interrogation.

4. He should be warned that not only has he the right to consult with a lawyer but also that if he is indigent, a lawyer will be appointed to represent him.

5. Even if the person consents to answer questions without the assistance of counsel, the moment he asks for a lawyer at any point in

206 The right guaranteed here is more than what is shown in television shows where the police routinely reads out the rights from a note card. As People V Rojas 147 S 169 put it: “When the Constitution requires a person under investigation to be informed of his right to remain silent and to counsel, it must be presumed to contemplate the transmission of a meaningful information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle. As a rule, therefore, it would not be sufficient for a police officer just to repeat to the person under investigation the provisions of the Constitution. He is not only duty-bound to tell the person the rights to which the latter is entitled; he must also explain their effects in practical terms.” In other words, the right of a person under investigation to be informed implies a correlative obligation on the part of the police investigator to explain, and contemplates an effective communication that results in understanding what is conveyed. Short of this, there is denial of the right, as it cannot then truly be said that the person has been informed of his rights.207 Jurisprudence under the 1987 Constitution has consistently held the stricter view, that the rights begin to be available only when the person is already in custody. As Justice Regalado emphasized in People V Marra 236 S 565: “Custodial investigation involves any questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. It is only after the investigation ceases to be a general inquiry into an unsolved crime and begins to focus on a particular suspect, the suspect is taken into custody, and the police carries out a process of interrogations that lends itself to eliciting incriminating statements that the rule begins to operate.”Custodial investigation begins the moment an incriminating question is asked. But note RA 7438 which defines “moment of invitation” as start of custodial investigation. RA 7438, “Custodial investigation” shall include the practice of issuing an “invitation” to a person who is investigated in connection with an offense he is suspected to have committed, without prejudice to the liability of the “inviting” officer for any violation of law.

80

the investigation, the interrogation must cease until an attorney is present.

6. If the foregoing protections and warnings are not demonstrated during the trial to have been observed by the prosecution, no evidence obtained as a result of the interrogation can be used against him.

c. Waiver

These rights cannot be waived except in writing and in the presence of his counsel.208

16. Rights of the Accused209

a. Criminal Due Process

a. accused to be heard in court of competent jurisdiction;b. accused proceeded against under orderly processes of law;c. accused given notice and opportunity to be heard;d. judgment rendered was within the authority of constitutional

law.

b. Bail210

All persons in custody shall be admitted to bail as a matter of right, with sufficient sureties, or be released on recognizance as prescribed by law or this rule:

a. Before or after conviction by the MTC, and

208 Art. III, Section 12 (1), last sentence The right to counsel during custodial investigation is not waived by reason of failure to make a timely objection before plea. There can only be a valid waiver of the right if such right is in writing and in the presence of counsel as mandated by Art. III, Section 12 of the 1987 Constitution and the pertinent provisions of R.A. 7438. (People vs. Buluran, et al., G.R. No. 113940, February 15, 2000). Even if the confession of the accused is gospel truth, if it was made without the assistance of counsel, it is inadmissible in evidence regardless of the absence of coercion, or even if it was voluntary given (People vs. Camat, et al., G.R. No. 112262, April 2, 19960). This refers to custodial investigation only.209 Ibid, Sec. 14210 The security given for the release of a person in custody of law, furnished by him or a bondsman, to guarantee his appearance before any court as required under conditions specified under the rules of court. (see Sec. 1, Rule 114, Revised Rules of Criminal Procedure).

81

b. Before conviction of the RTC of an offense not punishable by death, reclusion perpetua or life imprisonment.211

Upon conviction by the RTC of an offense not punishable by death, reclusion perpetua, or life imprisonment, the court, on application, may admit the accused to bail.

The court, in its discretion, may allow the accused to continue on provisional liberty after the same bail bond during the period to appeal subject to the consent of the bondsman.

If the court imposed a penalty of imprisonment exceeding 6 years but not more than 20 years, the accused shall be denied bail, or his bail previously granted shall be cancelled, upon showing by the prosecution, with notice to the accused, under certain circumstances.212

No person, regardless of the stage of the criminal prosecution, shall be admitted to bail if:

(a.) charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment; and

(b.) evidence of guilt is strong.213

c. Presumption of Innocence

Every circumstance favoring the innocence of the accused must be taken into account.214

d. Right to be Heard

211 Rule 114, Sec. 4, RoC212 (a) that the accused is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the circumstance of reiteracion; (b) that the accused is found to have previously escaped from legal confinement, evaded sentence, or has violated the conditions of his bail without valid justification; (c) that the accused committed the offense while on probation, parole, or under conditional pardon; (d) that the circumstances of the accused or his case indicate the probability of flight if released on bail; or (e) that there is undue risk that during the pendency of the appeal, the accused may commit another crime. (Rule 114, Sec. 5)213 Ibid, Sec. 7214 The proof against him must survive the test of reason; the strongest suspicion must not be permitted to sway judgment. (People v. Austria, 195 SCRA 700)

82

The more active role of the accused in expressing the right to be heard includes three specific rights:

1. the right to present evidence215 and to be present at the trial,216

2. the right to be assisted by counsel,3. the right to compulsory process to compel the attendance of witnesses in his behalf.

e. Assistance of Counsel217

The accused is amply accorded legal assistance extended by a counsel who commits himself to the cause of the defense and acts accordingly; an efficient and truly decisive legal assistance, and not simply a perfunctory representation (People v. Bermas, G.R. No. 120420, April 21, 1999).

f. Right to be Informed

Description not designation of the offense is controlling.

g. Right to Speedy, Impartial and Public Trial

Speedy – free from vexatious, capricious and oppressive delays;Impartial – accused entitled to cold neutrality of an impartial

judge.Public – to prevent possible abuses which may be committed

against the accused.

h. Right of Confrontation218

215 The right to present evidence includes the right to testify in one’s favor and the right to be given time to call witnesses. If accused of two offenses, he is entitle to trial of each case, and its error for the court to consider in one case the evidence adduced against him in another. The substantial rights of the accused should not be impaired because of his counsel’s anxiousness to have him promptly acquitted.216 An important facet of the right to be heard is the right to be present at the trial. “In all criminal prosecutions the accused has an absolute right to be personally present during the entire proceedings from arraignment to sentence if he so desires.” It has in fact been held that, because of the new provision allowing trial in absentia, the right of the accused to be present may be waived totally except when his presence is needed for purposes of identification.217 Right to counsel during the trial is not subject to waiver (Flores v. Ruiz, 90 SCRA 428).218 Witnesses not submitted for cross-examination not admissible as evidence; Right to cross-examination may be waived.Closely connected with and equally essential as the right to be heard is the right “to meet the witness face to face” or as Rule 115, Sec. 1(f) of the New Rules of Court expresses it, “to confront and cross-examine the witness against him at the trial”. The right has a twofold purpose:1. to afford the accused an opportunity to test the testimony of the witness by cross-examination,2. to allow the judge to observe the deportment of the witness

83

Closely connected with and equally essential as the right to be heard is the right “to meet the witness face to face” or as Rule 115, Sec. 1(f) of the New Rules of Court expresses it, “to confront and cross-examine the witness against him at the trial”. The right has a twofold purpose:

1. to afford the accused an opportunity to test the testimony of the witness by cross-examination,

2. to allow the judge to observe the deportment of the witness

i. Compulsory Process

Equally important as the right to counsel is the right to compulsory process for the attendance of the witnesses. The accused, however, may not invoke this right on appeal if he made no effort during the trial to avail himself of it.

j. Trials In Absentia219

Trial in absentia can be had only if the 3 conditions concur:

1. accused has been arraigned220

2.notice of the trial was duly served to him and properly returned3. his failure to appear is unjustified

17. Writ of Habeas Corpus221

A writ issued by court directed to person detaining another, commanding him to produce the body of the prisoner at designated time and place, with the day and cause of his capture and detention, to do, to

219 Trial in Absentia can also take place when the accused voluntarily waives his right to be present. Restrictive Conditions for allowing Waiver: The right may be waived “Provided that after arraignment he may be compelled to appear for the purpose of identification of witnesses of the prosecution, or provided he unqualifiedly admits in open court after his arraignment that he is the person named as the defendant in the case on trial. Reason for requiring the presence of the accused, despite his waiver, is, if allowed to be absent in all the stages of the proceeding without giving the People’s witnesses the opportunity to identify him in court, he may in his defense say that he was never identified as the person charged in the information and therefore, is entitled to acquittal.” Thus, for an accused to be excused from attending trial, it is not enough that he vaguely agrees to be identified by witnesses in his absence. He must unqualifiedly admit that every time a witness mentions a name by which he is known, the witness is to be understood as referring to him.220 The presence of the accused at arraignment is an absolute requisite for any trial to proceed, the reason being that it is at arraignment that the accused is informed of the nature and cause of the accusation against him and it is then that the trial court acquires jurisdiction over the person221 Habeas corpus lies only where the restraint of a person’s liberty has been judicially adjudged to be illegal or unlawful (In Re: Petition for Habeas Corpus of Wilfredo S. Sumulong-Torres, 251 SCRA 709).

84

submit to, and to receive whatever court or judge awarding writ shall consider in his behalf. (Nachura, Reviewer in Political Law, p. 135).

a. Writ of Amparo222

A remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. The writ shall cover extralegal killings and enforced disappearance or threats thereof.

18. Self-Incrimination Clause

No person shall be compelled to be a witness against himself.223

a. Scope and Coverage

Available not only in criminal proceedings, but also in all other government proceedings, including civil actions and administrative or legislative investigations. May be claimed not only by accused but by witness to whom an incriminating question is addressed.

(1) Foreign Laws

b. Application

Applies only to testimonial compulsion224 and production of documents, papers and chattels in court except when books of account are to be examined in exercise of power of taxation and police power.

c. Immunity Statutes

Transactional Immunity Statute – the testimony of any person or whose possession of documents or other evidence necessary or convenient to determine the truth in any investigation conducted is immune from criminal prosecution for an offense to which such compelled testimony relates.225

222 It is an effective and inexpensive instrument for the protection of constitutional rights (Azcuna, The Writ of Amparo: A Remedy to Enforce Fundamental Rights, 37 Ateneo L.J. 15 (1993).223 Sec. 17224 The Kernel of the right is NOT against ALL compulsion but testimonial compulsion only; i.e. extracting from the lips of the accused an admission of his guilt. Hence, a person may be compelled to submit to fingerprinting, photographing and paraffin testing.225 Art. XIII, Sec. 18 (8)

85

Use and Fruit Immunity Statute – prohibits the use of a witness’ compelled testimony and its fruits in any manner in connection with the criminal prosecution of the witness.226

19. Involuntary Servitude and Political Prisoners

Involuntary Servitude

General Rule: No involuntary Servitude shall exist.

Except:

a. as punishment for a crime whereof one has been duly convicted227

b. service in defense of the state228

c. naval enlistment229

d. posse comitatus230

e. return to work order in industries affected with public interest231 and

f. patria potestas232

Political Prisoners

No person shall be detained by reason of his political beliefs or aspirations.233

20. Excessive Fines and Cruel and Inhuman Punishments234

Prohibited punishment - mere severity does not constitute cruel or unusual punishment. To violate constitutional guarantee, penalty must be flagrant and plainly oppressive, disproportionate to nature of offense as to shock senses of community.

21. Non-Imprisonment for Debts

No person shall be imprisoned for debt or non-payment of poll tax.235

226Galman v. Pamaran, 138 SCRA 274227 Art. III, Sec. 18(2)228 Art. II, Sec 4229 Robertson v. Baldwin, 165 US 275230 US v. Pompeya, 31 Phil. 245231KaisahanngMangagawasaKahoy v. Gotamco Sawmills, G.R. No. L-1573. March 29, 1948232 Art. 211, par.(2), FC233 Art. III, Sec. 18234 Ibid, Sec. 19235 ibid, Sec. 20

86

22. Double Jeopardy236

a. Requisites237

a. valid complaint or information;b. filed before competent court;c. to which defendant has pleaded; andd. defendant was previously acquitted or convicted or the case dismissed or otherwise terminated without his express consent238

b. Motions for Reconsideration and Appeals

Basis for Motion for Reconsideration:

i. New evidence has been discovered which materially affects the decision rendered.

ii. The decision is not supported by the evidence on record, or errors of law or irregularities have been committed which are prejudicial to the interest of the respondent

Appeals

The rule on double jeopardy prohibits the state from appealing or filing a petition for review of a judgment of acquittal that was based on the merits of the case. Certiorari will issue only to correct errors of jurisdiction, not errors of procedure or mistakes in the findings or conclusions of the lower court.239

The prosecution can appeal if the accused waived or is estopped from invoking his right.240

236 Two types:1. No person shall be twice put in jeopardy of punishment for the same offense;2. If an act is punishable by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act. Crimes covered:1. same offense; or attempt to commit or frustration thereof or for any offense which necessarily includes or is necessarily included in the offense charged in original complaint or information; and2. when an act is punished by a law and an ordinance, conviction or acquittal under either shall bar another prosecution for the same act.237 With the presence of the requisites the accused cannot be prosecuted anew for an identical offense or for any attempt to commit the same or frustration thereof or for any offense which necessarily included in the offense charged in the original complaint or information238 People v. Ylagan, 58 Phil 851239 PP vs. CA and Maquiling June 21, 1999240 PP vs. Obsania 23 SCRA 1249

87

Appeal from the order of dismissal by the lower court is not foreclosed by the rule on double jeopardy where the order of dismissal was issued before arraignment.241

If the accused appeals his conviction, he waives his right to plead double jeopardy. The whole case will be open to review by the appellate court. Such court may even increase the penalties imposed on the accused by the trial court.

c. Dismissal with Consent of Accused

Does not put accused in first jeopardy, except:

a. when ground for dismissal is insufficiency of evidence; orb. when the proceedings have been unreasonably prolonged as to violate the right of the accused to a speedy trial.

23. Ex Post Facto Laws and Bills of Attainder

Ex post facto law242

Kinds:

a. law making an act criminal which was not before its passage;b. law aggravating penalty for crime committed before passage;c. law inflicting greater or more severe penalty;d. law altering legal rules of evidence and receive less or different testimony than law required at time of commission, in order to convict accused;

241 Martinez vs CA 237 SCRA 575

242 Characteristics:1. refers to criminal matters;2. retroactive; and3. prejudice the accused.

88

e. law assuming to regulate civil rights and remedies only, in effect imposes a penalty f. of deprivation of right for something which when done was lawful;g. law depriving accused of some lawful protection to which he had been entitled, such a protection of a former conviction or acquittal, or a proclamation of amnesty.

Bill of attainder - legislative act that inflicts punishment without trial; legislative declaration of guilt.

H. Citizenship

1. Natural-Born Citizens and Public Office

a. Citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship;

b. Those born before January 17, 1973 of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority243

2. Naturalization and Denaturalization

Qualifications for Naturalization:

1. not less than 18 years of age on date of hearing of petition (as amended by RA 6809);

2. resided in the Philippines for not less than 10 years; may be reduced to 5 years, if:

a. honorably held office in the Philippines;b. established new industry or introduced a useful invention;c. married to a Filipino woman;d. engaged as teacher in Philippine public or private school not established

for exclusive instruction to particular nationality or race, or in any of branches of education or industry for a period of not less than 2 years; and

e. born in the Philippines;3. character:

a.good moral character;b.believes in the Constitution;c.conducted himself in an irreproachable conduct during his stay in the

Philippines;

243 Art. IV, Sec. 2 One who is a Filipino citizen by election is a natural born citizen as provided in the second sentence of Sec 2A natural- born Filipino citizen who loses his citizenship but subsequently reacquires it is not a natural born citizen because of the first sentence of Section 2 The law does not treat natural-born citizens and naturalized citizens differently except in the instances where the Constitution itself makes a distinction. Otherwise there would be a violation of the equal protection clause ( Chen Teck Lao vs Rep)

89

4. Own real estate in the Philippines not less than P5,000 in value; or have some lucrative trade, profession or lawful occupation that can support himself and his family;

5. Speak and write English or Filipino and any principal Philippine dialects; (as amended by Sec. 6 Art. XIV); and

6. Enrolled minor children in any public or private school recognized by government where Philippine history, government and civics are taught as part of curriculum, during the entire period of residence prior to hearing of petition.

Declaration of Intention – must be filed with the Office of the Solicitor General one year before filing of application for naturalization.

Exceptions:

1. Those born in the Philippines and received primary and secondary education in a Philippine school;2. Those who have resided in the Philippines for thirty years;3. The widow or children of the applicant who died before his application was granted.

Disqualification for Naturalization:

a. opposed to organized government or affiliated with any association or group of persons who uphold and teach doctrines opposing all organized governments;

b. defending or teaching necessity or propriety of violence, personal assault or assassination for the success or predominance of their ideas;

c. polygamists or believers in polygamy;d. suffering from mental alienation or incurable contagious disease;e. convicted of crime involving moral turpitude;f. who during residence in the Philippines have not mingled socially

with Filipinos, or not evinced sincere desire to learn and embrace customs, traditions and ideals of Filipinos;

g. citizens or subjects of nations with whom the Philippines is at war, during the period of such war;

h. citizens or subjects of foreign country whose laws do not grant Filipinos right to become naturalized citizens or subjects thereof (no reciprocity).

Effects of Naturalization :

1. On the wife

vests citizenship on wife who might herself be lawfully naturalized; She need not prove her qualifications but only that she is not disqualified.244

2. On the minor children

244 Moy Ya Lim Yao v. Comm. of Immigration, 41 SCRA 292

90

(i) If born in the Philippines – automatically becomes a citizen;

If born abroad

If born before the naturalization of

the father

(ia) residing in RP at the time of naturalization – automatically becomes citizen;

(ib) if not residing in RP at the time of naturalization – considered citizen only during minority, unless begins to reside permanently in the Philippines;

(ii) If born outside the Philippines after parents’ naturalization considered Filipino, provided registered as such before any Philippines consulate within 1 year after attaining majority age and takes oath of allegiance.

Grounds for Denaturalization:

a) naturalization certificate obtained fraudulently or illegally;b) if, within 5 years, he returns to his native country or to some foreign

country and establishes residence therein;c) naturalization obtained through invalid declaration of intention;d) minor children failed to graduate through the fault of the parents either

by neglecting support or by transferring them to another school; ande) allowing himself to be used as dummy.

Effects of Denaturalization:

a) If ground affects intrinsic validity of proceedings, denaturalization shall divest wife and children of their derivative naturalization; and

b) If the ground is personal, the wife and children shall retain citizenship.

3. Loss of Citizenship

i. Naturalization in a foreign country;ii. Express renunciation of citizenship245

iii. Rendering service to or accepting commission in the armed forces of a foreign country;

iv. Cancellation of certificate of naturalization;v. Having been declared by final judgment a deserter of Philippines

Armed Forces in times of war.

245 Expatriation The mere application or possession of an alien certificate of registration does not amount to renunciation (Mercado vs. Manzano, G.R. No. 135083, May 26, 1999) Subscribing to an oath of allegiance to constitution or laws of foreign upon attaining of 21 years of age; Citizens may not divest citizenship when Philippines is at war

91

4. Repatriation246

Shall be effected by taking the necessary oath of allegiance to the Republic of the Philippines and registration in the proper civil registry and in the Bureau of Immigration. The Bureau of Immigration shall thereupon cancel the pertinent alien certificate of registration and issue the certificate of identification as Filipino citizen to the repatriated citizen.

Allows the person to recover or return to his original status before he lost his Philippine citizenship.247

I. Law on Public Officers

1. General Principles

Public office.

The right, authority or 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 sovereign power of government to be exercised by him for the benefit of the public.

Public officer

a.A person who holds public office.b. Any person who, by direct provision of law, popular election or

appointment by competent authority, shall take part in the performance of public functions in the Government of the Philippine Islands, or shall perform in said Government or in any of its branches, public duties as an

246 RA 8171 is an act providing for the repatriation of: a. Filipino women who have lost their Philippine citizenship by marriage to aliens and;b. natural-born Filipinos who have lost their Philippine citizenship on account or political or economic necessity. The applicant should not be a: a. Person opposed to organized government or affiliated with any association or group of persons who uphold and teach doctrines opposing organized government; b. Person defending or teaching the necessity or propriety of violence, personal assault, or association for the predominance of their ideas; c. Person convicted of crimes involving moral turpitude: or d. Person suffering from mental alienation or incurable contagious diseases.247Bengzon III v. HRET, G.R. No. 142840, May 7, 2001

92

employee, agent or subordinate official, of any rank or class shall be deemed to be a public officer.248

c) Includes elective and appointive officials and employees, permanent or temporary, whether in the classified, unclassified or exempt service, receiving, compensation, even nominal, from the government.249

Characteristics of public office:

1)Public office is a public trust created in the interest and for the benefit of the public.

2)There is no such thing as vested interest or an estate in an office or even an absolute right to hold it.

3)Public office is personal to the incumbent thereof or appointee thereto.

2. Modes of Acquiring Title to Public Office

a. By appointmentb. By electionc. By being a de facto officer

3. Modes and Kinds of Appointment

Permanent- extended to a person possessing the requisite qualifications, including the eligibility required for the position, and thus protected by the constitutional guaranty of security of tenure.

Temporary- extended to one who may not possess the requisite qualifications or eligibility required by law for the position, and is revocable at will, without the necessity of just cause or a valid investigation.250

Acting Appointment - the appointee may not possess the required qualities or the eligibility required by law for the position,

248 Article 203, Revised Penal Code249Sec. 2, R.A. 3019 (Anti-Graft and Corrupt Practices Act)250 The acceptance by the petitioner of a temporary appointment resulted in the termination of official relationship with his former permanent position. When the temporary appointment was not renewed, the petitioner had no cause to demand reinstatement thereto. (Romualdez v. CSC) Acquisition of the appropriate civil service eligibility by a temporary appointee will not ipso facto convert the temporary appointment into a permanent one; a new appointment is necessary. (Province of Camarines Sur v. CA)

93

and is revocable at will without the necessity of just cause and valid investigation.251

Temporary Appointment for Fixed Period - the appointment may be revoked only at the expiration of the period or, if revocation is made before such expiration, the same has to be for a valid and just cause.252

Provisional appointment - one issued upon the authorization by CSC to a person who has not qualified in an appropriate exam but otherwise meets the requirement for appointment to a regular position whenever such vacancy occurs and filling it is necessary in the interest of service and there is no appropriate register of eligible employees at the time of the appointment.253

Regular- one made by the President while Congress is in session after the nomination is confirmed by the COA and continues until the end of the term.

Ad-interim- one made by while Congress is not in session, before the confirmation by the COA, is immediately effective and ceases to be valid if disapproved or by passed by the COA upon the next adjournment of Congress.

4. Eligibility and Qualification254 Requirements

Qualifications:

May refer to endowments, qualities, or attributes which make an individual eligible for public office.255

May refer to the act which a person, before entering the performance of his duties, is by law required to do so.256

251Marahomsan v. Alonto252Ambas v. Buenasedo253abolished already, considered temporary appointment. Provisional appointment is one which may be issued, upon prior authorization to the CSC, to a person who has not qualified in an appropriate examination but who otherwise meets the requirements for appointment to a regular position, whenever a vacancy occurs and filling thereof is necessary in the interest of the service and there is no appropriate register of eligible at the time of the appointment.254 “Loss of any of the qualifications during incumbency will be a ground for termination” (Frivaldo v. COMELEC, 174 SCRA 245)255 Qualifications (endowments) must be possessed by the individual at the time of appointment or election and continuously for as the official relationship continuous. Property, literacy or religious qualifications may not be imposed for the exercise of the right to run for public office Loss of any of the qualifications during incumbency will be a ground for termination256e.g. taking an official oath or giving an official bond.

94

General qualifications:257

a) Citizenship258

b)Residencec)Aged)Educational Attainmente)Civil Service259

5. Disabilities and Inhibitions of Public Officers

a) The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in the Constitution, hold any other office or employment during their tenure.260

b) No Senator or Member of the House of Representatives may old any other office or employment in the Government, or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries, during his term for which he was elected.261

c) The Members of the Supreme Court and of other courts established by law shall not be designated to any agency performing quasi-judicial or administrative functions.262

d) No Member of a Constitutional Commission shall, during his tenure, hold any other office or employment263the same disqualification applies to the Ombudsman and his Deputies.264

Failure of an officer to perform an act required by law (e.g. oath) could affect the officer’s title to the given office. He could become merely a de facto officer. But prolonged failure or refusal to take an oath or office could result in the forfeiture of the office257 Qualification standard-expresses the minimum requirements for a class in position in terms of education, training and expense, civil service eligibility, physical fitness and other requirements for successful performance.258 A voluntary change of citizenship or a change thereof by operation of law disqualifies him to continue holding the civil service position to which he qualified and had been appointed.259 Temporary appointments of non-eligible may be made in the absence of eligible actually and immediately available.260 Art. VII, Sec. 13261 Art. VI, Sec. 13262 Art. XI, Sec. 8263 Art. IX-A, Sec. 2264 Art. IX, Sec. 8

95

e) The Ombudsman and his Deputies shall not be qualified to run for any office in the election immediately succeeding their cessation from office.265

f) Members of Constitutional Commissions, the Ombudsman and his Deputies must not have been candidates for any elective position in the election immediately preceding their appointment.266

g) Members of Constitutional Commissions, the Ombudsman and his Deputies are appointed to a term of seven (7) years, without reappointment.267

The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President shall not during his tenure be appointed as Members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including government-owned or controlled corporations.268

6. Powers and Duties of Public Officers

Powers

Ministerial Powers – one the discharge of which by the officer concerned is imperative and requires neither judgment nor discretion.

Discretionary Powers – one imposed by law upon the public officer wherein the officer has the right to decide how and when the duty shall be performed.269

Duties

General/ Constitutional duties of Public Officers

265 Art. XI, Sec. 11266 Art. IX-B, Sec. 1, Art.IX-C; Art.IX-D, Sec. 1; Art. XI, Sec. 8 267 Art. IX-B, Sec. 1(2); Art.IX-D, Sec. 1(2); Art. XI, Sec. 11268 Art. VII Sec. 13269 Mandamus will not lie to compel the performance of discretionary powers

96

a. To be accountable to the people; to serve them with utmost responsibility, integrity, loyalty and efficiency, to act with patriotism and justice; and to lead a modest lives.270

b. To submit a declaration under oath of his assets, liabilities and net worth upon the assumption of office and as often thereafter as maybe required by law.271

c. To owe the state and the Constitution allegiance at all times.272

Specific Duties

a. The Solicitor general’s duty to represent the government, its offices and instrumentalities and its officials and agents except in criminal and civil cases for damages arising from felony- is mandatory. Although he has the discretion in choosing whether or not to prosecute a case or even withdraw there from such discretion must be exercised within the parameters set by law and with the best interest of the state as the ultimate goal.

b. The government is not estopped from questioning the act of its officials, more so if they are erroneous or irregular.

7. Rights of Public Officers273

a. Right to Office274

b. Right of Salary275

c. Right of Preference in Promotiond. Right to Vacation and Sick Leave276

270 Art. 11, Sec.1271 Ibid, Sec. 17272 Ibid, Sec. 18273 When may Public officer claim legal right to his office?a)File a Quo Warranto – both elective and appointiveb)File Election Protest – on elective officer by the losing candidate.274the just and legal claim to exercise the powers and responsibilities of the public officer.275a personal compensation to be paid to him for services, and it is generally a fixed annual or periodical payment depending on the time and not on the amount of services he may render. It is given to higher degree of employment.Where there is a de jure officer, a de facto officer who, in good faith, has possession of the office and has discharged the duties thereof, is entitled to salary.The salary of a public officer cannot be subject to garnishment, attachment or order of execution be seized before being paid to him, and appropriated to the payment of his debts.Agreements affecting compensation are void as contrary to public policy.A de jure officer, upon establishing his title to the office CANNOT recover from the public/government the amount so paid to the de facto officer for services performed by him BEFORE the adjudication upon the title.276 Under Office of President Memo Circ. No. 54 (3/24/88), government officers or employees are not entitled to commutation of all leave credits without limitation and regardless of the period when the credits

97

e. Right to Maternity, Paternity Leavef. Right to Retirement Pay277

g. Right to pension and gratuityh. Right to reimbursement for expenses incurred in the due

performance of his duty.i. Right to be indemnified against any liability which they may

incur in the bona fide discharge of their duties.j. Right to longevity pay.k. Right to present complaints and grievances.l. Right to exercise the powers connected with the office.m. Right to special protection.n. Right to Self-Organization278

8. Liabilities of Public Officers

General Rule on Liability:

A public officer is not liable for injuries by another as a consequence of official acts done within the scope of his official authority, except as otherwise provided by law.

A public officer shall be civilly liable if there is a clear showing of bad faith, malice or negligence.279

a. Preventive Suspension280 and Back Salaries

were earned, provided the claimant was in the service as of January 9, 1986.277 Retirement is compulsory for a member who has reached the age of sixty-five (65) years with at least fifteen (15) years of service. If he has less than fifteen (15) years of service, he shall be allowed to continue in the service to complete the fifteen (15) years, “to avail of the old-age pension benefit. (Profeta v. Drilon)278 Art III, Sec 8 1987Consti. Civil servants are now given the right to self-organize but they may not stage strikes (see: SSS Employees Assoc. vs. CA, 175 SCRA 686)279 Administrative Code of 1987; Sec. 38 (1), Chapter 9, Book 1280 Preventive Suspension - a precautionary measure so that an employee who is formally charged of an offense may be separated from the scene of his alleged misfeasance while the same is being investigated (Bautista v. Peralta, 18 SCRA 223) Need not be preceded by prior notice and hearing since it is not a penalty but only a preliminary step in an administrative investigation (Lastimosa v. Vasquez, 243 SCRA 497) The period of preventive suspension cannot be deducted from whatever penalty may be imposed upon the erring officer (CSC Resolution No. 90-1066) Period for Preventive Suspension:

98

The proper disciplining authority may preventively suspend any subordinate officer under his authority pending an investigation if the charge against such officer involves dishonesty, oppression or grave misconduct, or neglect in the performance of a duty, or if there are reasons to believe that the respondent is guilty of the charges which would warrant removal from the service.

Back salariesare also payable to an officer illegally dismissed or otherwise unjustly deprived of his office the right to recover accruing from the date of deprivation. The claim for back salaries must be coupled with a claim for reinstatement and subject to the prescriptive period of one (1) year.281

b. Illegal Dismissal, Reinstatement and Back Salaries

The public officer shall not be entitled to salaries during the period of preventive suspension; but upon exoneration and subsequent reinstatement, he shall be paid full salaries and emoluments accruing during the period of suspension. Note that in order to be entitled to back salaries, the employee suspended must be exonerated of the charges against him.282

9. Immunity of Public Officers

Presidential Immunity from suit283

10. De Facto Officers284

For Local elective officials – 60 days (max) for single offense within a single year for several offenses but not exceeding term of office. For civil service officers and employees – 90 days (max) The Ombudsman may suspend for 6 months.281 Cruz, Law on Public Officers, p126-126282Bangalisan v. Court of Appeals, 276 SCRA 619283supra284 Elements1. A validly existing public office.

99

One who has the reputation of being the officer that he assumes to be, and yet is not a good officer in point of law.285

He must have acted as an officer for such length of time, under color of title and under such circumstances of reputation or acquiescence by the public and public authorities, as to afford a presumption of election or appointment, and induce people, without inquiry, and relying on the supposition that he is the officer he assumes to be, to submit to or invoke his action.

11. Termination of Official Relation

a. Expiration of term or tenure286

b. Reaching the age limit287

c. Resignation288

d. Recalle. Removal289

2. Actual physical possession of said office.3. Color of title to the office285 Torres v. Ribo, 81 Phil. 44286 Term is the period of time during which a public officer has the right to hold the public office. Tenure is the period of time during which the public officer actually held office. When a public officer holds office of the pleasure of the appointing authority, his being replaced shall be regarded as termination through expiration of term, not removal. (Astraquillo v. Manglapus, 190 SCRA 280) When the constitution provides that the term of office of local elective official is three years, Congress cannot, by a law calling for delayed election, effectively reduced the term. (Osmena v. COMELEC 199 SCRA 750) 287 The compulsory retirement age for members of the Judiciary is seventy (70) years of age and for the other government officers and employees, sixty-five (65) years of age. Special Retirement Laws, e.g. R.A. 1616, which allows optional retirement after an officer has rendered a minimum number of years of government service, when availed of by the public officer, will result in termination of official relationship through reaching the age limit (or retirement). Any request for extension of service of compulsory retirees to complete the fifteen (15) years service requirement for retirement shall be allowed only to permanent appointees in the career service who are regular members of the Government Service Insurance System (GSIS), and shall be granted for a period not exceeding one (1) year. The government agency concerned is vested with discretionary authority to allow or disallow extension of such service. (Toledo v. COMELEC)288 the formal renunciation or relinquishment of a public officer Resignation must be accepted by competent authority, either expressly or impliedly (as in the appointment of a successor). Mere tender of resignation, without acceptance by competent authority does not create a vacancy in public office; resignation is not complete until accepted by proper authority (Joson v. Nario, 187 SCRA 453) In the Philippines, acceptance of resignation is necessary, because Art. 238 of the Revised Penal Code penalizes any public officer who, before the accepatance of his resignation, abandons his office to the detriment of the public service. If the public officer is mandated by law to hold over, the resignation, even if accepted, will not be effective until after the appointment or election of his successor.289entails the ouster of an incumbent before the expiration of his term.

100

f. Abandonment290

g. Acceptance of an incompatible office291

h. Abolition of office292

i. Prescription of the right to officej. Impeachmentk. Death293

l. Failure to assume elective office within six months from proclamation294

m. Conviction of a crime295

n. Filing of a certificate of candidacy.

12. The Civil Service

a. Scope

The Civil Service embraces all branches, subdivisions, instrumentalities, and agencies of the government, including government-owned or controlled corporations with original charters.296

290 It is the voluntary relinquishment of an office by the holder, with the intention of terminating his possession and control thereof.291 Acceptance of Incompatible Office ipso facto vacates the other. There is no necessity for any proceeding to declare or complete the vacation of the first office. (Adaza v. Pacana, 135 SCRA 431) Exception: Where the public officer is authorized by law to accept the other office, e.g., the Secretary of Justice who is, by express provision of the Constitution, a member of the Judicial and Bar Council292 Except when restrained by the Constitution, Congress has the right to abolish an office, even during the term for which an existing incumbent may have been elected. Constitutional Offices cannot be abolished by Congress. Valid abolition of office does not constitute removal of the incumbent293 The death of an incumbent of an office necessarily renders the office vacant. A public official ceases to hold office upon his death and all his rights, duties and obligations pertinent to the office are extinguished thereby. A decision becomes binding only after it is validly promulgated. Consequently, if at the time of the promulgation of a decision or a resolution, a judge or a member of the collegiate court who had earlier signed or registered his vote, has vacated his office, his vote is automatically withdrawn or cancelled. (JAMIL vs. COMELEC)294 Sec. 11, BP 881 provides: “The office of any official elected who fails or refuses to take his oath of office within six months from his proclamation shall be considered vacant, unless said failure is for a cause or causes beyond his control”.295 Conviction with a accessory penalty of disqualification-rule: When the penalty impose, upon conviction, carries with it the accessory penalty of disqualification, conviction by final judgment automatically terminates official relationship.296The test in determining whether a government-owned or controlled corporation is subject to the Civil Service Law is the manner of its creation. Corporations created by special charters are subject to the Civil service, while those incorporated under the Corporation Law are not. The moment that a Corporation ceases to be government controlled, as when it is privatized, it ceases to fall under the Civil Service. Also, if what is involved is a private corporation from which the government acquires shares of stock, it does not fall under the Civil Service (e.g. PAL, Manila Hotel). The “Boy Scouts of the Philippines” is a government-owned or controlled corporation.

101

b. Appointments to the Civil Service

Shall be made only in accordance to merit and fitness to be determined, as far as practicable, and except appointments to positions which are policy determining; primarily confidential or highly technical by competitive examination.297

c. Personnel Actions

Disciplinary cases involving “personnel action” affecting employees in the CS including “appointment through certification, promotion, transfers, reinstatement, reemployment, detail, reassignment, demotion and separation”, as well as employment status and qualification standards, all within the exclusive jurisdiction of the CSC. (Mantala v. Salvador)

13. Accountability of Public Officers

a. Impeachment

297 Art. IX-B, Sec. 2(2)A. Career Service characterized by: a. entrance based on merit and fitness, to be determined by competitive examinations, or based on highly technical qualifications; b. opportunity for advancement to higher career positions; andc. security of tenure.B. The positions included in the career service are:C. Open Career Positions, where prior qualification in an appropriate examination is required.D. Closed Career Positions. E.g. scientific or highly technical in nature.E. Career Executive Service. E.g. undersecretaries, bureau directors.F. Career Officers. Other than those belonging to the Career Executive Service, who are appointed by the President, such as those in the Foreign Office.G. Positions in the Armed Forces, although governed by a separate merit system.H. Personnel of government-owned or controlled corporations with original charters.I. Permanent Laborers, whether skilled, semi-skilled, or unskilled.J. Non-career Service characterized by: a. entrance on bases other than those of the usual tests utilized for career service;b. tenure limited to a period specified by law, or which is co-terminus with that of the appointing authority or subject to his pleasure, or which is limited to the duration of a particular project for which purpose the employment was made.K. The positions included in the non-career service are:L. Elective officials and their personal and confidential staff.M. Department heads and officials of Cabinet rank who hold office at the pleasure of the President and their personal and confidential staff.N. Chairmen and members of commissions and boards with fixed terms of office, and their personal and confidential staff.O. Contractual personnel or those whose employment in the government is in accordance with a special contract to undertake a specific work or job

102

A national inquest into the conduct of public men.

b. Ombudsman

The “champion of the citizens” and “protector of the people”

Tasked to entertain complaints addressed to him against erring public officers and take all necessary actions thereon.298

(1) Judicial Review in Administrative Proceedings

The administrative case may be appealed to the Court of appeals.

(2) Judicial Review in Penal Proceedings

The criminal Case may be appealed to the Supreme Court..

c. Sandiganbayan299

298 The Constitution and RA 6770 (The Ombudsman Act of 1989) has endowed the Office of the Ombudsman with a wide latitude of investigatory and prosecutory power virtually free from legislative, executive or judicial intervention. The Supreme Court consistently refrains from interfering with the exercise of its powers, and respects the initiative and independence inherent in the Ombudsman who, beholden to no one, acts as the champion of the people and the preserver of the integrity of public service. (Loquias v. Office of the Ombudsman, GR No. 139396, August 15, 2000)299 Original Jurisdiction a. violations of R.A. 3019 (AGCPA) as amended; R.A. 1379; and Chapter II, Sec.2, Title VII, Book II of the Revised Penal Code where one or more of the accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity at the time of the commission of the offense: (i) Officials of the Executive branch with the position of regional director or higher, or with Salary Grade Level 27 (G27) according to R.A. 6758, specifically including: (a) Provincial governors, vice-governors; Board members, provincial treasurers, engineers and other provincial department heads; (b) City mayors, vice-mayors, city councilors; city treasurers, assessors, engineers and other city department heads; (c) Officials of the diplomatic service from consuls or higher; (d) PA/PAF colonels; PN captains and all officers of higher rank; (e) Officers of the PNP while occupying the position of provincial director and those holding the rank of senior superintendent or higher; (f)City/provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and special prosecutor; and (g) Presidents, directors, trustees, or managers of GOCC’s state universities or educational institutions or foundations; (ii) Members of Congress and officials thereof with G27 and up; (iii) Members of the Judiciary without prejudice to the Constitution; (iv) Chairmen and members of the Constitutional Commissions without prejudice to the Constitution; and (v) All other national and local officials with G27 or higher;b. Other offenses or felonies whether simple or complexed with other crimes committed by the public officials and employees mentioned in Subsection a in relation to their office;

103

The anti-graft court shall continue to function and exercise its jurisdiction as now and hereafter may be provided by law.

d. Ill-Gotten Wealth

The right of the State to recover properties unlawfully acquired by public officials or employee, from them or from their nominees or transferees, shall not be barred by prescription, laches or estoppel300but it applies only to civil actions and not to criminal cases.301

14. Term Limits302

J. Administrative Law

1. General Principles

Branch of public law that fixes the organization of the government and determines competence of authorities who execute the law and indicates to the individual remedies for the violations of his rights.

2. Administrative Agencies

A body, other than the courts and the legislature, endowed with quasi-legislative and quasi-judicial powers for the purpose of enabling it to carry out laws entrusted to it for enforcement or execution.

3. Powers of Administrative Agencies

a. Quasi-Legislative303Power

In exercise of delegated legislative power, involving no discretion as to what law shall be, but merely authority to fix details in execution or enforcement of a policy set out in law itself.

c. Civil and criminal cases filed pursuant to and in connection with E.O. nos. 1, 2, 14 and 14-A issued in 1986.2. Exclusive Original Jurisdiction over petitions for the issuance of the writs of mandamus, prohibitions, certiorari, habeas corpus, injunction and other ancillary writs and processes in aid of its appellate jurisdiction, Provided, that jurisdiction over these petitions shall be not exclusive of the Supreme Court; and3. Exclusive Appellate Jurisdiction over final judgments, resolutions or orders of regional trial courts whether in the exercise of their own original jurisdiction or of their appellate jurisdiction. (RA 8249)300 Art. XI, Sec. 15301 Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto, GR No.130140, October 25, 1999302infra303 Rule Making

104

(1) Kinds of Administrative Rules and Regulations

a. Legislative regulation

i. Supplementary or detailed legislation,304

ii. Contingent regulation

b. Interpretative legislation or internal rules305

(2) Requisites for Validity

i. law itself must declare as punishable the violation of administrative rule or regulation;

ii. law should define or fix penalty therefor; andiii. rule/regulation must be published

b. Quasi-Judicial306Power

Proceedings partake of nature of judicial proceedings. Administrative body granted authority to promulgate its own rules of procedure, provided they do not increase diminish or modify substantive rights, and subject to the disapproval by the Supreme Court.307

(1) Administrative Due Process308

304 e.g. Rules and Regulations Implementing the Labor Code305 e.g. BIR CircularsOnly an instruction from a higher officer to a lower officer within the same office. It has no effect of law because no clear legal right which can be invoked by a third person emanates from it. It does not have to be published to be effective.306 Adjudicatory307 Art. VIII, Sec. 5 (5)308 Notice and hearing as the fundamental requirements of due process, are essential only when an administrative body exercises its quasi-judicail function, but in the performance of its executive or legislative functions, such as the issuing rules and regulations, an administrative body need not comply with the requirements of notice and hearing, except when it involves revocation of a license. (Corona v. United Harbor Pilots Association of the Philippines, 283 SCRA 31) Due process in administrative context does not require trial type-proceedings similar to those in the courts of justice. (UP Board of Regents v. CA, 313 SCRA 404 ) Administrative due process cannot be fully equated to due process in its strict judicial sense. (Ocampo v. Office of the Ombudsman, 322 SCRA 17) A formal trial-type hearing is not at all times and in all instances essential to due process- it is enough that the parties are given a fair and reasonable opportunity to explain heir respective sides of the controversy and to present evidence on which a fair decision can be based. (Melendres v. COMELEC, 319 SCRA 262) The requirement of hearing is complied with as long as there is opportunity to be heard, and to submit any evidence one may have in support of his defense, and not necessarily that an actual hearing was conducted. (Busuego v. CA, 304 SCRA 473) Where the litigants are given the opportunity to be heard, either through oral arguments or pleadings, there is no denial of procedural due process. (Domingo, Jr. v. COMELEC, 313 SCRA 311; Ablera v. NLRC, 215 SCRA 476) A party who chooses not to avail of the opportunity to answer the charges cannot complain of denial of due process.(Ocampo v. Office of the Ombudsman, supra) There can be no denial of

105

The essence of due process is simply to be heard, or as applied in administrative proceedings, an opportunity to explain one’s side or an opportunity to seek reconsideration of the action or ruling complained of.309

Administrative due process is recognized to include the right to:

1. Notice, be actual or constructive, of the institution of the proceedings that may affect a person’s legal right;

2. Reasonable opportunity to appear and defend his rights, and to introduce witnesses and relevant evidence in his favor;

3. A tribunal so constituted as to give him reasonable assurance of honesty and impartiality, and one of competent jurisdiction;

4. And a finding or decision by that tribunal supported by substantial evidence presented at the hearing or at least ascertained in the records or disclosed to the parties.310

(2) Administrative Appeal and Review

Pursuant to the doctrine of exhaustion of administrative remedies, before a party litigant can seek judicial intervention, he must exhaust all means of administrative redress available under the law, subject to the exceptions provided for by law or jurisprudence.

By virtue of the power of control of the president over all executive departments, the President, by himself or through the Department Secretaries (pursuant to the “alter ego doctrine”), may affirm, modify, alter, or reverse the administrative decision of subordinate officials and employees.311

(3) Administrative Res Judicata

It has the force and binding effect of a final judgment.312

c. Fact-Finding, Investigative, Licensing and Rate-Fixing Powers

due process where a party had the opportunity to participate in the proceedings but failed to do so.(DBP v. CA, 302 SCRA 362; Tiomico v. CA, 304 SCRA 216)309Arboleda v. NLRC, 303 SCRA 38310Air Manila, Inc. V. Balatbat, 38 SCRA 489 and Fabella v. CA, 282 SCRA 256311 The appellate administrative agency may conduct additional hearings in the appealed case, if deemed necessary. But just like in the appellate courts, appellate administrative bodies may only pass upon errors assigned. (Diamonon vs. DOLE, GR No. 108951, March 7, 2000) 312 applies only to judicial and quasi-judicial proceedings not to exercise of administrative functions (Brillantes vs. Castro 99 Phil. 497)

106

4. Judicial Recourse and Review313

a. Doctrine of Primary Administrative Jurisdiction314

Judicial action of a case is deferred pending the determination of some issues which properly belong to an administrative body because their expertise, specializes skills, knowledge and resources are required for the resolution of factual and non-legal matters. In such a case, relief must first be sought and obtained in the administrative body concerned before the Court will supply the remedy. Where a statute lodges exclusive original jurisdiction in an administrative agency, the court will refuse to take up a case unless the agency has finally completed its proceedings.315

b. Doctrine of Exhaustion of Administrative Remedies316

Whenever there is an available administrative remedy provided by law, no judicial recourse can be made until all such remedies have been availed of and exhausted.

Before a party can invoke the jurisdiction of the courts of justice, he is expected to have exhausted all means of administrative redress afforded to him by law.

c. Doctrine of Finality of Administrative Action

313 Requisites of judicial review of administrative action1. Administrative remedies must have been exhausted or the principle of exhaustion of administrative remedies.2. Administrative action must have been completed or the principle of finality of administrative action.314 or preliminary resort315 The doctrine does not warrant a court to arrogate unto itself authority to resolve a controversy the jurisdiction over which is initially lodged with an administrative body of special competence. (Roxas& Co. Inc v. Court of Appeals, 321 SCRA 106 and Province of Zamboanga del Norte v. Court of Appeals, 342 SCRA)The application of the doctrine of primary jurisdiction does not call for the immediate dismissal of the case pending before the court. The case is merely suspended until the issues resolvable by the administrative body are threshed out and fully determined.(Industrial enterprises, Inc v. CA, 184 SCRA 426) 316 Failure to exhaust administrative remedies will not affect the jurisdiction of the courts. Non-compliance with the doctrine will deprive the complainant of a cause of action, which is a ground for a motion to dismiss the case. However, if no motion to dismiss is filed on this ground, there is deemed a waiver. (Rosario v. CA, 211 SCRA and Baguioro v. Basa, 214 SCRA 437) One of the reasons for the doctrine of exhaustion of administrative remedies is the separation of powers, which enjoins upon the judiciary a becoming a policy of non-interference with matters coming primarily within the competence of other department. The Legal reason is that the courts should not act and correct its mistakes or errors and amend its decision on a given matter and decide it properly. (Lopez v. City of Manila, 303 SCRA 448) And the practical reason is that administrative process I intended to provide less expensive and speedier solution to disputes.

107

No resort to courts will be allowed unless administrative action has been completed and there is nothing left to be done in administrative structure.

K. Election Law

1. Suffrage

The right and obligation of qualified citizens to vote in the election of certain national and local of the government and in the decisions of public questions submitted to the people. It includes within its scope: election, plebiscite, initiative, referendum and recall.

2. Qualification and Disqualification of Voters

Qualifications:

1. Filipino citizenship- it may be by birth or naturalization.

2. Age- a person may be registered as a voter although he is less than 18 years at the time of registration if he will be at least 18 on the day of election.

3. Residence- at least 1 year in the Philippines, and at least 6 months where he proposes to vote immediately preceding the election. Any person who, on the days of registration may not have been reached the required period of residence but who, on the day of election shall possess such qualification, may register as voter.317

No literacy, property or other substantive requirement shall be imposed on the exercise of suffrage.

Disqualifications:

1. Any person sentenced by the final judgment to suffer imprisonment for not less than one year.

317 Any person who temporarily resides in another city municipality or country solely by reason of occupation, profession, employment in public or private service, educational activities, work in the military or naval reservations within the Philippines, service in the AFP, PNP or confinement or detention in government institutions, shall not deemed to have lost his original residence. (Sec. 9, RA 8189) In election cases, the Supreme Court treats domicile and residence and residence as synonymous terms. 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. The residence at the place chosen for the new domicile must be actual. (Romualdez vs. RTC,226 SCRA 406)

108

2. Any person adjudged by the final judgment of having commit (a) any crime involving disloyalty to the government or (b) any crime against national security (c) firearms laws.

3. Insane or incompetent persons as declared by competent authority.

3. Registration of Voters

The personal filing of application of registration of voters shall be conducted daily in the office of the Election Office during regular office hours. No registration shall, however, be conducted during the period starting 120 days before a regular election and 90 days before a special election.318

4. Inclusion and Exclusion Proceedings319

318 Sec. 8, R.A. 8189319 PetitionersInclusion 1. Private person whose application was disapproved by the Election Registration Board or whose name was stricken out from the list of waters (Sec. 34, RA 8189) 2. COMELEC [Sec. 2(6), Art. IX-C, PC]Exclusion 1. Any registered voter in city or municipality 2. Representative of political party 3. Election Officer (Sec. 39, RA 8189) 4. COMELEC [Sec. 2(6), Art. IX – C, PC] Period for FilingInclusion – Any day except 105 days before regular election or 75 days before a special election. (Sec. 24, RA 8189)Exclusion – Any time except 100 days before a regular election or 65 days before special election. (Sec. 35 RA 8189) Procedure 1. Petition for exclusion shall be sworn (Sec. 35 , RA 8189) 2. Each petition shall refer only to only one precinct. (Sec. 35, RA 8189) 3. Notice 4. Parties to be notifiedInclusion and Exclusion – Election Registration Board –

109

Jurisdiction

Municipal or Metropolitan Trial Court – original and exclusive Jurisdiction

Regional Trial Court – appellate jurisdiction (5 days)320

Supreme Court – appellate jurisdiction over RTC on question of law (15 days)321

5. Political Parties

Political party or party when used in the Omnibus Election Code (OEC) means an organized group of persons pursuing the same ideology, political ideas or platforms of government and includes its branches or divisions. A political party may refer to a local regional or national party existing and duly registered and accredited by the COMELEC. To acquire juridical personality, qualify for accreditation, and to be entitled to the rights of political parties, a political party must be registered with the COMELEC.322

6. Candidacy

a. Qualifications of Candidates323

A. National

Challenged voters [Sec. 32(b), RA 8189]Manner Notice stating the place day and hour of hearing shall be served through any of the following means: 1. Registered mail 2. Personal delivery 3. Leaving copy in possession of sufficient discretion in residence. 4. Posting in city hall or municipal hall and two other conspicuous places in the city or municipality at least 10 days before the hearing (Sec. 32(b), RA 8189) Any voter, candidate or political party affected may intervene. (Sec. 32c, RA 8189)Non-appearance is prima facie evidence the registered voter is fictitious (Sec. 32 (f), RA 8189) Decision cannot be rendered on stipulation of facts (Sec. 32 (f), RA 8189) No motion for reconsideration is allowed, (Sec. 33, RA 8189)320 Sec. 33, ibid321 Sec. 5(2)(e), Art. VIII, PC; Sec. 2, Rule 45 of the RC

322 The following political parties cannot be registered. 1. Religious sects 2. Those which seeks to achieve their goals through unlawful means 3. Those which refuse to adhere to the Constitution 4. Those that are supported by any foreign government323 Qualifications prescribed by law are continuing requirements and must be possessed for the duration of the officer’s active tenure. Once any of the required qualifications is lost, his title to the office may be seasonably challenged. (Frivaldo vs. COMELEC, 174 SCRA 245 and Labor vs. COMELEC, 176 SCRA 1)

110

1. President and Vice President

a. natural-born citizen of the Philippines,b. a registered voter,c. able to read and write, d. at least forty years of age on the day of the election, ande. a resident of the Philippines for at least ten years immediately preceding such election.324

2. Senators

a. natural-born citizen of the Philippines,b. a registered voter,c. able to read and write, d. at least thirty-five of years of age on the day of the election,

ande. a resident of the Philippines for not less than two years immediately preceding the day of the election.

3. Congressmen – District and Party – List Representatives

a. natural-born citizen of the Philippines,b. a registered voter,c. able to read and write, d. at least twenty-five of years of age on the day of the

election, ande. except the party-list representatives, a registered voter in the district in which he shall be elected, andf. a resident of the Philippines for not less than two years immediately preceding the day of the election.325

B. Local

(a) An elective local official must be a citizen of the Philippines; a registered voter in the barangay, municipality, city, or province or, in the case of a member of the sangguniangpanlalawigan, sangguniangpanlungsod, or sangguniangbayan, the district where he intends to be elected; a resident therein for at least one (1) year immediately preceding the day of the election; and able to read and write Filipino or any other local language or dialect.

324 Art. VII, Sec. 2325 Art. Vi, Sec. 6

111

(b) Candidates for the position of governor, vice-governor, or member of the sangguniangpanlalawigan, or mayor, vice-mayor or member of the sangguniangpanlungsod of highly urbanized cities must be at least twenty-one (21) years of age on election day.

(c) Candidates for the position of mayor or vice-mayor of independent component cities, component cities, or municipalities must be at least twenty-one (21) years of age on election day.

(d) Candidates for the position of member of the sangguniangpanlungsod or sangguniangbayan must be at least eighteen (18) years of age on election day.

(e) Candidates for the position of punong barangay or member of the sangguniang barangay must be at least eighteen (18) years of age on election day.

(f) Candidates for the sangguniangkabataan must be at least fifteen (15) years of age but not more than twenty-one (21) years of age on election day.326

b. Filing of Certificates of Candidacy

(1) Effect of Filing

An appointive public official is considered resigned upon filing of his certificate.327 This includes an employs of a GOCC organized under the Corporation Code,328 since the law makes no distinction.329

Any elective official, whether national or local who has filed a certificate of candidacy for the same or any other office shall not be considered resigned from office.330

(2) Substitution of Candidates

Candidates in case of death, disqualification or withdrawal of another. - If after the last day for the filing of certificates of candidacy, an official candidate of a registered or accredited political party dies, withdraws or is disqualified for any cause, only a person belonging to, and certified by, the same political party may file a certificate of candidacy to replace the candidate who died, withdrew or was

326 Sec.39, LGC327 Sec. 66, BP 881; Sanciangco vs. Rono, 137, SCRA 671328 Without original charter329 PNOC – EDC vs. NLRC, 222 SCRA 831330 Sec. 26, COMELEC Resolution No. 3636, Rules and Regulations Implementing RA 9006

112

disqualified. The substitute candidate nominated by the political party concerned may file his certificate of candidacy for the office affected in accordance with the preceding sections not later than mid-day of the day of the election. If the death, withdrawal or disqualification should occur between the day before the election and mid-day of election day, said certificate may be filed with any board of election inspectors in the political subdivision where he is a candidate, or, in the case of candidates to be voted for by the entire electorate of the country, with the Commission.331

In case of valid substitutions after the official ballots have been printed, the votes cast for the substituted candidates shall be considered as stray votes but shall not invalidate the whole ballot. For this purpose, the official ballots shall provide spaces where the voters may write the name of the substitute candidates if they are voting for the latter: Provided, however, That if the substitute candidate of the same family name, this provision shall not apply.332

If after the last day for filing certificates, a candidate dies, withdraws or is disqualified, he may be substituted by a person belonging to his party not later than the mid – day of election. Said certificate may be filled with any board of election inspectors in the political subdivision where he is an electorate of the country, with the COMELEC.333

Even if the withdrawal was not under oath, the certificate of the substitute cannot be annulled after the election. Such technicality of the original candidate’s withdrawal of his certificate of candidacy cannot be used to override the people’s will in favor to the substitute candidate. The legal requirement that the withdrawal be under oath will be held to be merely directory and the candidate’s failure to observe the requirement is considered a harmless error. Hence the bona fide certificate of the substitute candidate cannot be assailed. The votes in his favor should be counted.334

There is nothing in the Constitution or statute which requires as condition precedent that a substitute candidate must have been a member of the party concerned for a certain period of time before he can be nominated as such.335

331 Sec. 77, BP 881332 Sec. 12, RA 9006333 Domingo vs. City Board of Canvassers, GR No. 105365, June 2, 1992334Villanueva vs. COMELEC, 140 SCRA 352335Sinaca vs. Mula, 315 SCRA 266

113

A valid certificate of candidacy is likewise an indispensable requisite in the case of a substitution of a disqualified candidate under the provisions of Sec. 77 of the Election Code . . . The concept of a substitute presupposes the existence of the person to be substituted, for how can a person take the place of somebody who does not exist or who never was...

A disqualified candidate may only be substituted if he had a valid certificate of candidacy in the first place because, if the disqualified candidate did not have a valid and seasonably filed certificate of candidacy, he is and was not a candidate at all. If a person was not a candidate, he cannot be substituted under Sec. 77 of the Code . . . .

While Sec. 78 of the Election Code enumerated the occasion where a candidate may validly substitute there is no mention of the case where a candidate is excluded not only by disqualification but also by denial and cancellation of his certificate of candidacy.336

(3) Nuisance Candidates

COMELEC may motupropio or upon petition of interested party, refuse to give due course to or cancel certificate of candidacy if shown that said certificate was filed:

1. to put election process in mockery or disrepute;2. to cause confusion among voters by similarity of names of

registered candidates;3. by other circumstances or acts which demonstrate that a

candidate has no bona fide intention to run for office for which certificate has been filed, and thus prevent a faithful determination of true will of electorate.

(4) Petition to Deny or Cancel Certificates of Candidacy337

336 Miranda vs. Abaya, 311 SCRA 617337 A petition filed after the election is filed out of time. (Loongvs.COMELEC, 216 SCRA 769) The COMELEC may motupropio refuse to give due course or cancel a certificate of candidacy. (Sec. 69, BP 881) The proceeding shall be summary. (Nolasco vs. COMELEC, 275 SCRA 762) The COMELEC can decide a disqualification case directly without referring it to its legal officers for investigation. (Nolasco, supra) The decision shall be final and executory after 5 days from receipt unless stayed by the Supreme Court [Secs. 5(e) and 7, RA 6646]

114

The petition shall be filed by any registered candidate for the same Office within 5 days from the last day of filing of certificates of Candidacy.338

Under the election laws and the COMELEC Rules of Procedure, any voter may file a petition to disqualify a candidate on grounds provided by law.339

(5) Effect of Disqualification

After final judgment -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.

Before final judgment – 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 tendency thereof, order the suspension of the proclamation of such candidate whenever the evidence of guilt is strong.340

(6) Withdrawal of Candidates

J. Form – written declaration under oath. 341

338Secs. 5a and 7, RA 6646339Toraynovs.COMELEC, 337 SCRA 574340 Sec. 6, RA 6646 Sec. 6 of RA 6616 authorizes the continuation of proceedings for disqualification even after the elections if the respondent has not been proclaimed. (Perez vs. COMELEC, 317 SCRA 641) A disqualification case may have two aspects, the administrative, which required only a preponderance of evidence to prove disqualification, and the criminal, which necessitates proof beyond reasonable doubt to convict. There is no provision in RA 6646 that treats of a situation where the complaint for disqualification is filed after the election. . . . Second paragraph of paragraph 2 of Res. No. 2050 provides that where a complaint is filed after the election but before proclamation, as in this case, the complaint must be dismissed as a disqualification case but shall be referred to the Law Department for preliminary investigation.341 There was no withdrawal of candidacy for the position of mayor where the candidate, before the deadline for filing certificates of candidacy, personally appeared in the COMELEC office, asked for his certificate of candidacy and intercalated the word “vice” before the word mayor and the following day wrote the election registrar saying that his name be included in the list of official candidates for mayor. (Vivero vs. COMELEC, L – 81059, Jan 12, 1989) Since his certificate of candidacy for the office of board member was filed by his party, and the said party had withdrawn the nomination which withdrawal was confirmed by the candidate under oath, there was substantial compliance with Sec. 73. His filing under oath within the statutory period of his individual certificate for candidacy for the separate office of mayor was, in effect, a rejection of the party nomination on his behalf for the office of board member. (Ramirez vs. COMELEC, L-81150, Jan 12, 1992)

115

7. Campaign

a. Premature Campaigning

Election campaign or partisan political activity refers to an act designed to promote the election or defeat of a particular candidate or candidates for public office.342

a. If done for the purpose of enhancing the chances of aspirants for nomination for candidacy to a public office by a political party, etc, it shall not be considered as election campaign or partisan political activity.

b. It shall be unlawful for any person or any party to engage in election campaign or partisan political activity except during the campaign period.

c. Members of the Civil Service to engage, directly or indirectly, in any electioneering or partisan political campaign.

b. Prohibited Contributions

No political contribution shall be made by the following:

i.Public or private financial institutionsii. Public utilities and those who exploit natural resources343

iii. Persons who hold contracts or sub-contracts to supply the governmentwith goods and services.

iv. Persons granted franchises, incentives, exemptions or similar privileges by the government

v. Persons granted loans in excess of P25, 000 by the government or any ofits subdivisions or instrumentalities

vi. Schools which received grants of public funds of at least P100,000

vii. Employees in the Civil Service or members of the Armed Forces.

viii. Foreigners344

ix. Corporations345

8. Board of Canvassers

342 (Sec. 79, BP 881)343 Thus, where an operator of a public utility disguised a contribution to a candidate for governor as loan, the promissory note is void: (halili vs. Court of Appeals, 83 SCRA 633)344 Sec. 95 , B.P. 881345 Sec. 36 (9), Corp. Code

116

Nature of duty of board of canvassers

Ministerial- it has only the ministrial task of tallying the votes as reported in the election returns and declare the results, and cannot exercise the judicial power of deciding an election contest. The correction of the manifest mistake in the mathemathical addition calls for a mere clerical task on the part of the board. The remedy is purely administrative.346

Quasi-Judicial- The Comelec exercises judgment or discretion to determine whether any given return before it is genuine in connection with the canvass of votes.

9. Remedies and Jurisdiction in Election Law

a. Petition Not to Give Due Course to Certificate of Candidacy

Subject to its authority over nuisance candidates and its power to deny due course or cancel a certificate of candidacy, the rule is that the COMELEC shall have only the ministerial duty to receive and acknowledge receipt of the certificates of candidacy.347

b. Petition to Declare Failure of Elections

There are only 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; and

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, fraud or other analogous causes.348

346Tatlonghari vs. COMELEC,199 SCRA 199347 Sec. 78, BP 881348What is common in these three instances is the resulting failure to elect. In the first instance, no election is held while in the second, the election is suspended. In the third instance, circumstances attending the

117

c. Pre-Proclamation Controversy349

Refers to any question pertaining to or affecting the proceedings of the board of canvassers which may be raised by any candidate or by any registered political party or coalition of political parties before the board or directly with the Commission, or any matter raised under Sections 233, 234, 235 and 236 in relation to the preparation, transmission, receipt, custody and appreciation of the election returns.350

d. Election Protest351

Maybe filed by any candidate who has filed a certificate of candidacy and has been voted upon for the same office.

Grounds:

a. fraud, b. terrorism,

preparation, transmission, custody or canvass of the election returns cause a failure to elect. The term failure to elect means nobody emerged as a winner. (Pasandalan vs. Comelec, G.R. No. 150312, July 18, 2002) The causes for the declaration of a failure of election may occur before or after the casting of votes or on the day of the election. (Sec. 4, R.A. 7166) The COMELEC shall call for the holding or continuation of the election on a date reasonably close to the date of the election not held, suspended, or which resulted in a failure to elect but not later than 30 days after the cessation of the cause of such suspension or failure to elect. (Sec. 6, B.P. 881) In such election, the location of polling places shall be the same as that of the preceding regular election. However, changes may be initiated by written petition of the majority of the voters of the precinct or agreement of all the political parties or by resolution of the Comelec after notice and hearing. (Cawasa vs. Comelec, G.R. No. 150469, July 3, 2002) 349 In pre-proclamation controversy, the board of canvassers and the COMELEC are not to look beyond or behind election returns which are on their face regular and authentic returns.(CHU,supra) A pre-proclamation controversy is limited to an examination of the election returns on their face- The COMELEC as a general rule need not go beyond the face of the returns and investigate alleged election irregularities. To require the COMELEC to examine the circumstances surrounding the preparation of the returns would run counter to the rule that a pre-proclamation controversy should be summarily decided. Where the resolution of the issues raised would require the COMELEC to “pierce the veil” of election returns that appear prima facie regular, the remedy is a regular election protest. The office of pre-proclamation controversy is limited to incomplete, falsified or materially defective returns which appear as such on the face. (Sebastian VS COMELEC, 327 SCRA 406)350 Chu vs. COMELEC,319 SCRA 482351 The filing of an election protest results in abandonment of a pre-proclamation case even if the protest alleged it was filed as a precautionary measure, if he did not explain why.(Laodenio vs. COMELEC,276 SCRA 405)3.The rule that the filing of a protest implies abandonment of the pre-proclamation case does not apply if:i.The protest was filed as a precautionary measure (mitmug vs. COMELEC,230 SCRA 54)ii.The board of canvassers was improperly constituted, as when the Municipal Treasurer took over the canvassing without having been designated. (Saman vs. COMELEC,224 SCRA 631)

118

c. irregularities or d. illegal acts committed before, during or after the

casting and counting of votes

Time to file:

Within 10 days from the proclamation of the results of the election

e. Quo Warranto

Filed by any registered voter in the constituency.

Grounds:

1. ineligibility or 2. disloyalty to the Republic of the Philippines

Time to file:

Within 10 days from the proclamation of the results of the election

10. Prosecution of Election Offenses

File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion of voters; investigate and, where appropriate, prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offenses, and malpractices.352

L. Local Governments352 Art IX-C, Sec. 2(6) The COMELEC has exclusive jurisdiction to conduct preliminary investigation of and prosecute election offenses (Naldaza vs. Lavilles,254 SCRA 286) This holds true even if the offense is committed by a public officer in relation to his office.(Corpuz vs. Tanodbayan, 149 SCRA 2281) Whatever initiated motupropio or filed with the COMELEC by any other party, the complaint shall be referred to the COMELEC Law Department for investigation.. The COMELEC Chairman, in his personal capacity may file directly with the COMELEC Law Department pursuant to Section 4, Rule 34 of the COMELEC Rules of Procedure. No requirement in section 5 that only the COMELEC en banc may refer a complaint to the Law Department for investigation nor is there a rule against the COMELEC Chairman directing the conduct of a preliminary investigation, even if he himself were the complainant in his private capacity… Where the complaint was directly filed with the Law Department under Section 4 of Rule 32 of the COMELEC RULES of Procedure obviously there is no need to refer such complaint to the same Law Department… Under Section 5 of Rule 34 of the COMELEC Rules of Procedure, the preliminary investigation may be delegated to any of those officials specified in the rule upon the direction of the COMELEC Chairman(Laurel vs. Presiding Judge, RTC Manila Br 10, 323 SCRA 778) A provincial election supervisor authorized to conduct a preliminary investigation may file a case without need of approval of the provincial prosecutor. (Pp. Vs. Inting,187 SCRA 788)

119

1. Public Corporations

a. Concept

Public corporation - one formed and organized for the government of a portion of the State

(1) Distinguished from Government-Owned or Controlled Corporations (GOCCs)

.Government-owned or controlled corporation – refers to any agency organized as a stock or non-stock corporation, vested with functions relating to public needs whether governmental of proprietary in nature, and owned by the Government directly or through its instrumentalities either wholly, or, where applicable as in the case of stock corporations, to the extent of at least fifty-one percent (51%) of its capital stock.353

b. Classifications

(1) Quasi-Corporations - public corporations created as agencies of State for narrow and limited purpose.

(2) Municipal Corporations - a body politic and corporate constituted by incorporation of inhabitants of city or town for purposes of local government thereof or as agency of State to assist in civil government of the country; one formed and organized for the government of a portion of the State

2. Municipal Corporations

a. Elements

The COMELEC can deputize prosecutors to investigate and prosecute offenses even after election. (Pp. Vs. Basilla,179 SCRA 87) Since it is a preliminary investigation, it is the COMELEC who will determine the existence of probable cause, the complainant cannot ask it to gather evidence in support of the complaint. (KilosbayanInc vs. COMELEC,280 SCRA 8920 The court in which a criminal case was filed may order the COMELEC to order a reinvestigation. (Pp. Vs. Delgado, 189 SCRA 715) A prosecutor who was deputized by the COMELEC cannot oppose the appeal filed by the COMELEC from the dismissal of a case, since the power to prosecute election offenses is vested in the COMELEC.(COMELEC vs. Ssilva,286 SCRA 177)353 Introductory Provisions, Sec. 2 (13), Adm. Code of 1997

120

i. Legal creation or incorporationii Corporate nameiii. Inhabitantsiv. Territory

b. Nature and Functions

Every local government unit created or organized is a body politic and corporate endowed with powers to be exercised by it in conformity with law. As such, it shall exercise powers as political subdivision of the National Government and as a corporate entity representing the inhabitants of its territory.

i. Public/Governmental—it acts as an agent of the State for the government of the territory and the inhabitants within the municipal limits; it exercises by delegation a part of the sovereignty of the State.

ii. Private/Proprietary—it acts in a similar category as a business corporation, performing functions not strictly governmental or political; it stands for the community in the administration of local affairs. It acts as a separate entity for its own purposes and not as a subdivision of the State.

c. Requisites for Creation, Conversion, Division, Merger or Dissolution

A. Creation of LGUs:354

A local government unit may be created, divided, merged, abolished, or its boundaries substantially altered by law enacted by Congress in the case of a province, city, municipality, or other political subdivisions, or by SanggunianPanlalawigan or SanggunianPanlungsod ordinance in the case of a barangay.355

354Nature of the power to create: legislative355 Sec.6 While the power to create barangays has been delegated to SanggunianPanlalawigan and SangguniangPanlungsod, Congress, in order to enhance the delivery of basic services in indigenous cultural communities, may create barangays in such communities notwithstanding the requirements set forth by law. (Sec.385a, LGC) The creation or conversion of a local government unit to another level shall be based on the following verifiable indicators of viability and projected capacity to provide services: a. Sufficient income and b. Population and/or c. Land area As a matter of general rule, municipal corporations cannot, without legal authorization, exercise its powers beyond its own corporate limits. It is necessary that it must have its boundaries fixed, definite and certain, in order that may be identified and that all may know the exact scope or section of territory or

121

Manner of Creation

1. Creation of Barangays:356

Substantive Requisites:

a. Population- at least 2000 inhabitants357

b. Income- no minimum income requirementc. Land Area- no minimum requirement, but it must be contiguous but it need not be contiguous if the barangay is comprised with two or more islands.358

2. Creation of Municipalities359

Substantive Requisites:

a. Population- at least 25,000 inhabitantsb. Income- average annual income of at least P2.5 million for

the last two consecutive years based on the 1991 constant prices.c. Land Area- a contiguous territory of 50 square kilometers.

3. Creation of Component Cities360

Substantive Requisites:

geographical division embraced within the corporate limits and over which the municipal corporation has jurisdiction. A description of the boundaries of a municipal corporation is said to be an essential part of its charter and necessary to corporate existence. An incorporation is void where the boundaries of the municipal corporation are not described with certainty.356 Role: serves as the primary planning and implementing unit of government policies, plans programs, projects and activities in the community, and as a forum wherein the collective views of the people may be expressed, crystallized and considered, and where disputes may be amicably settled. Who creates: a barangay may be created, divided, merged, abolished or its boundary substantially altered by law or by an ordinance of the SangguniangPanlalawigan or SangguniangPanlungsod. Where a barangay is created by an ordinance of the SangguniangPanlalawigan, the recommendation of the Sangguniang Bayan concerned shall be necessary.357 Except in cities and municipalities within Metro Manila or in highly urbanized cities—must be at least 5000 inhabitants358 The creation of the new barangay shall not however reduce the population of the original barangay to less than the minimum requirement prescribed in the Code. (Sec.386, LGC)359 Role: serves primarily as a general purpose government for the coordination and delivery of basic, regular and direct services and effective governance of the inhabitants within its territorial jurisdiction. Who creates: may be created, divided, merged, abolished or its boundary substantially altered only by an act of Congress subject to the criteria established by the Code.

360 Role- serves primarily as a general purpose government for the coordination and delivery of basic, regular and direct services and effective governance of the inhabitants within its territorial jurisdiction. Who creates- may be created, divided, merged or abolished, or its boundary substantially altered only by an act of Congress subject to the criteria provided in the Code.

122

a. Population- at least 150,000 inhabitantsb. Income- at least P100 million for the last two consecutive

yearsc. Land Area- contiguous territory of at least 100 square

kilometers

4. Conversion of a Component City into a Highly Urbanized City361

Substantive Requisites:

a. Population- at least 200,000 inhabitantsb. Income- at least P50 million

5. Creation of Provinces362

Substantive Requirements:

a. Population- not less than 250,000 inhabitantsb. Income- average annual income of at least P20 millionc. Land Area- a contiguous territory of at least 2000 square

kilometers

6. Status of Sub-provinces

Existing sub-provinces are converted into regular provinces upon the approval by a majority votes cast in a plebiscite to be held in the said sub-province and the original province directly affected.363

7. Autonomous Regions

The Philippine Constitution mandates the creation of autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, and economic and social cultures.364

361 If a component city shall have met the minimum requirements for a highly urbanized city, it shall be the duty of the President to declare the city as highly urbanized city upon: (1) proper application and (2) upon ratification in a plebiscite by the majority of registered voters therein. 362 Role- as a political and corporate unit of government, it serves as a dynamic mechanism for development processes and effective governance of local government units within its territorial jurisdiction. Who creates- may be created, divided, merged, or abolished, or its boundary substantially altered, only by an act of Congress, subject to the satisfaction of the criteria set forth by the LGC.363 Sec.462, LGC364 Art. X, Sec.15, 1987 Cons.

123

8. Special Metropolitan Political Subdivisions

The Congress may, by law, create special metropolitan political subdivisions, but the component cities and municipalities shall retain their basic autonomy and shall be entitled to their own local executives and legislative assemblies. The jurisdiction of the metropolitan authority that will be thereby created shall be limited to basic services requiring coordination. 365

9. Attack against invalidity of incorporation

No collateral attack shall lie; an inquiry into the legal existence of a municipal corporation is reserved to the State in a proceeding for quo warranto or other direct proceeding. But this rule applies only when the municipal corporation is, at least, a de facto municipal corporation.

10. Plebiscite requirement: Who shall participate

The creation, division and merger, abolition or substantial alteration of the boundaries of local government units must be approved by a majority of votes cast in a plebiscite in the political unit or units directly affected.366 Such plebiscite shall be conducted by the COMELEC within 120 days from the date of the effectivity of the law. The completion of the publication of the law should be the reckoning point in determining the 120-day period within which to conduct the plebiscite, not from the date of its approval when the law had not yet been published. Since publication is indispensable for the effectivity of a law, a plebiscite can be scheduled only after the law creating a city took effect.367

The plebiscite for the creation of a new province or municipality shall include the participation of the residents of the mother province or mother municipality in order to conform to the constitutional requirement.368 In the conversion of a municipality into a component city,

365 With the passage of RA 7924, Metropolitan Manila was declared as a “special development and administrative region” and the administration of “metrowide basic services affecting the region was placed under a “development authority” referred to as the Metropolitan Manila Development Authority (MMDA), whose functions were without prejudice to the autonomy of the affected local government units. The law does not grant police nor legislative powers to MMDA. Even the Metro Manila Council, the governing board of the MMDA, has not been delegated any legislative power. Clearly, MMDA is not a political unit. There is no grant of authority to enact ordinances and regulations for the general welfare of the inhabitants of the metropolis. MMDA cannot open for public use a private road in a private subdivision (MMDA vs. Bel-Air Village Association, Inc., G.R. No. 135962, March 27, 2000).366 Sec. 10 of the LGC367Cawaling vs. COMELEC, Oct. 26, 2002368 Padilla vs. COMELEC, 214 SCRA 735

124

however, only the registered voters of the municipality sought to be converted into a component city, shall participate in the plebiscite.

Summary of Substantive Requirements in the Creation of LGUs

LGU Created Income Population Land area

Barangay No minimum requirement 2,000 but 5,000 for Metro Manila and highly urbanized cities Municipality No minimum requirement P2.5 million 25,000, and

50 sq.kmComponent City P100 million 150,000 or 100 sq.km.Highly Urbanized City P50 million 200,000 No minimum requirementProvince P20 million 250,000 or 2,000 sq.km.

11. Beginning of Corporate Existence

When a new local government unit is created, its corporate existence shall commence upon the election and qualification of its chief executive and a majority members of the Sanggunian, unless some other date is fixed therefore by law or ordinance creating it.369

12. Division and Merger of LGUs

The division and merger of local government units shall comply with the same requirements for their creation. The income, population or land area shall not be reduced to less than the minimum requirements. Likewise, the income classification of the original local government unit shall not fall below its current income classification prior to such division.370

13. Abolition of LGUs

A local government unit may be abolished when its income, population or land area has been irreversibly reduced to less than the minimum standards prescribed for its creation under the LGC, as certified by the national agencies to Congress or to the Sanggunian concerned. Likewise, the law or, ordinance abolishing an LGU shall 369 Sec.14, LGC370 Sec.8, ibid

125

specify the province, city, municipality, or barangay with which the local government unit sought to be abolished will be incorporated or merged.371

14. Effects of Annexation/Consolidation of Municipal Corporations

a. On the legal existence of the territory annexed- Unless otherwise provided for by law, the annexation of one municipal corporation to another will dissolve the annexed territory. It shall become part of the annexing corporation and will fall under the jurisdiction of the latter.

b. On the laws and ordinances of the annexed corporation- In the absence of any provision of law to the contrary, when a territory is annexed to a municipal corporation, it shall become subject to all the laws and ordinances by which the annexing corporation is governed.

c. On the right of officers or employees of the annexed or consolidated territory to continue to hold their offices- Subject to what the legislature may provide upon annexation, the officers and employees of the annexed or consolidated territory shall terminate their official relation with their offices.

d. On the title to the property of the annexed territory- When a municipal corporation is annexed to another, the annexing territory shall acquire title to the property of the annexed territory at the time of annexation without compensation unless the annexing statute provides otherwise. Where the annexed territory, however, forms part of a municipality from which it is taken, the legislature may provide for the payment of compensation for the indebtedness incurred on account of the property taken.

With regard to public buildings and improvements located in the annexed territory, the annexing territory is not required to pay for said buildings or improvements as they have already been paid for by the annexed territory. It would be otherwise if there exists an indebtedness on said buildings in which case, the annexing state may be required to share in the payment of said indebtedness.

e. On the debts and obligations of the annexed territory- It has been stated that debts and obligations of a municipal corporation contracted before its annexation to another territory shall be assumed by the annexing territory in the absence of any provision to the contrary.

371 Sec.9, ibid

126

The same rule applies of consolidation where the consolidating municipal corporation is held responsible for the indebtedness and obligations incurred by the territories which are consolidated.

15. Effects of Division of LGUs

On the legal existence of the original corporation: The division of municipal corporation extinguishes the corporate existence of the original municipality.

On the property, powers and rights of the original corporation: Unless the law provides otherwise, when a municipal corporation is divided into two or more municipalities, each municipality acquires title to all the property, powers, rights and obligations falling within its territorial jurisdiction.

3. Principles of Local Autonomy

Local Autonomy- is self-governing. It is the granting of more powers, authority, responsibilities and resources to the lower or local levels of a government system. The principle of local autonomy under the 1987 Constitution simply means decentralization. It does not make the local government sovereign within the state or an “imperium in imperio.”

4. Powers of Local Government Units (LGUs)

a. Police Power372

The power of promoting public welfare by restraining and regulating the use of liberty and property

b. Eminent Domain

The power to expropriate private property has been delegated by Congress to LGUs under Section 19, LGC. The exercise by LGUs of the power of eminent domain are subject to the usual constitutional limitations such as necessity, private property, taking, public use, just compensation and due process of law.373

372 General Welfare Clause Police power concerns government enactments, which interfere with personal liberty or property to promote the general welfare or the common good.373 Private property already devoted to public use can still be a subject of expropriation by Congress but not by LGUs. The promulgation of the ordinance authorizing the local chief executive to exercise the power must be promulgated prior to the filing of the complaint for eminent domain with the proper court, and not after the court shall have determined the amount of just compensation to which the defendant is entitled. (Heirs of

127

The determination of whether there is genuine necessity for the exercise of the power of eminent domain is a justiciable question when exercised by the LGUs and generally a political question when exercised by Congress.374

c. Taxing Power375

Taxes are enforced proportional contributions from persons and property levied by the state by virtue of its sovereignty, for the support of government and for all public needs.

Taxation is the method by which these contributions are exacted.376

d. Closure and Opening of Roads

A local government unit may, pursuant to an ordinance, permanent or temporarily close or open any local road, alley, park, or square falling within its jurisdiction, provided that in case of permanent closure, such ordinance must be approved by at least 2/3 of all the members of the sanggunian, and when necessary, and adequate substitute for the public facility shall be provided.377

e. Legislative Power

(1) Requisites for Valid Ordinance

Suguitan vs. City of Mandaluyong, 328 SCRA 137) An LGU may immediately take possession of the property upon filing of expropriation proceedings and deposit in court of 15% of the FMV of the property.374 The additional limitations on the exercise of the power of eminent domain by LGUs are, as follows: 1. Exercised only by the local chief executive, acting pursuant to a valid ordinance; 2. For public use or purpose or welfare, for the benefit of the poor and the landless; 3. Only after a valid and definite offer had been made to, and not accepted by, the owner; 4. An LGU shall file a complaint for expropriation on the strength of an ordinance and not a mere resolution passed by the Sanggunian. (Municipality of Paranaque vs. VM Realty Corp., 292 SCRA 676) 375 The power to tax is inherent, thus, it need not be granted by the constitution.376Each local government unit shall have the power to create its own sources of revenues and to levy taxes, fees, and charges subject to such guidelines and limitations as the Congress may provide, consistent with the basic policy of local autonomy. Such taxes, fees, and charges shall accrue exclusively to the local governments (Sec. 5, Art. X, 1987 Cons.)377 Sec. 21, RA 7160 Additional limitations in case of permanent closure:i. Adequate provision for the maintenance of public safety must be made;ii. The property may be used or conveyed for any purpose for which other real property may be lawfully used or conveyed, but no freedom park shall be closed permanently without provision for its transfer or relocation to a new site. Temporary closure may be made during an actual emergency, fiesta celebrations, public rallies, etc.

128

i. Must not contravene the Constitution and any statute;ii. Must not be unfair or oppressive;ii. Must not be partial or discriminatory;iv. Must not prohibit, but may regulate trade which is not illegal

per se;v. Must not be unreasonable; andvi. Must be general in application and consistent with public

policy.

(2) Local Initiative and Referendum

Local Initiative

It is the legal process whereby the registered voters of a local government unit may directly propose, enact or amend any ordinance. It may be exercised by all registered voters of the provinces, cities, municipalities and barangays.378

Local referendum:

It is the legal process whereby the registered voters of the local government units may approve, amend or reject any ordinance enacted by the sanggunian.379

f. Corporate Powers

1) To Sue and Be Sued

The rule is that suit is commenced by the local executive, upon the authority of the Sanggunian, except when the City Councilors, by themselves and as representatives of or behalf of the City, bring the action to prevent unlawful disbursement of City funds.380

2) To Acquire and Sell Property

i. The local government unit may acquire real or personal, tangible or intangible property, in any manner allowed by law381

378 The power of local initiative shall not be exercised more than once a year. Initiative shall extend only to subjects or matters which are within the legal powers of the sanggunian to enact.379 The local referendum shall be held under the control and direction of the Comelec within 60 days (in case of provinces), 45 days (in case of municipalities) and 30 days (in case of barangays). The Comelec shall certify and proclaim the results of the said referendum.380 City Council of Cebu vs. Cuison, 47 SCRA 325.381 e.g., sale, donation, etc

129

ii. The local government unit may alienate only patrimonial property, upon proper authority.

iii. In the absence of proof that the property was acquired through corporate or private funds, the presumption is that it came from the State upon the creation of the municipality and, thus, is governmental or public property.382

iv. Town plazas are properties of public dominion; they may be occupied temporarily, but only for the duration of an emergency.383

v. A public plaza is beyond the commerce of man, and cannot be the subject of lease or other contractual undertaking. And, even assuming the existence of a valid lease of the public plaza or part thereof, the municipal resolution effectively terminated the agreement, for it is settled that the police power cannot be surrendered or bargained away through the medium of a contract.384

3) To Enter Into Contracts

(a) Requisites

i. The local government unit has the express, implied or inherent power to enter into the particular contract.

ii. The contract is entered into by the proper department, board, committee, officer or agent. Unless otherwise provided by the Code, no contract may be entered into by the local chief executive on behalf of the local government unit without prior authorization by the sangguniang concerned.

iii. The contract must comply with certain substantive requirements, i.e., when expenditure of public fund is to be made, there must be an actual appropriation and a certificate of availability of funds.

iv. The contract must comply with the formal requirements of written contracts, e.g., the Statute of Frauds.

(b) Ultra Vires Contracts

When a contract is entered into without compliance with the first and the third requisites (above), the same is ultra vires and is null and void. Such contract cannot be ratified or validated. Ratification of defective municipal contracts is possible only when there is non-

382 Salas vs. Jarencio, 48 SCRA 734; Rebuco vs. Villegas, 55 SCRA 656383 Espiritu vs. Municipal Council of Pozorrubio, Pangasinan, 102 Phil. 866384 Villanueva vs. Castaneda, 154 SCRA 142

130

compliance with the second and/or fourth requirements above. Ratification may be express or implied.

g. Liability of LGUs

Specific provisions making LGUs liable:

a. Liability for damages- Local government units and their officials are not exempt from liability for death or injury to persons or damage to property.385

b. The local government unit is liable in damages for death or injuries suffered by reason of the defective condition of roads, streets, bridges, public buildings and other public works.386

c. The State is responsible when it acts through a special agent.387

d. The local government unit is subsidiarily liable for damages suffered by a person by reason of the failure or refusal of a member of the police force to render aid and prosecution in case of danger to life and property.388

Liability for Tort

a. If the local government unit is engaged in governmental functions, it is not liable. b. If engaged in proprietary functions, local government unit is liable.

h. Settlement of Boundary Disputes

Boundary disputes between and among local government units shall, as much as possible, be settled amicably.

To this end:

385 Sec. 24, RA 7160386 Art. 2189, NCC387 Art. 2180, par.6, NCC388 Art. 34, NCC

131

a. Boundary disputes involving two or more barangays in the same city or municipality shall be referred for settlement to the sangguniangpanlungsod or sangguniangbayan concerned.

b. Boundary disputes involving two or more municipalities within the same province shall be referred for settlement to the sangguniangpanlalawigan concerned.

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

d. Boundary disputes involving a component city or municipality on the one hand and a highly urbanized city on the other, or two or more highly urbanized cities, shall be jointly referred for settlement to the respective sanggunians of the parties.389

i. Succession of Elective Officials

Rules on Succession390

A. Permanent vacancies: 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 permanently incapacitated to discharge the functions of his office.

a. Governor and Mayor

i. Vice Governor and Vice Mayorii. Sanggunian members according to ranking

b. Punong barangay

i. Highest ranking sanggunian memberii. Second highest ranking sangguniang barangay member

c. Ranking in the sanggunianshall be determined on the basis of the proportion of the votes obtained to the number of registered votes in each district.

d. Ties will be resolved by drawing of lots.391

389 Sec. 118 a-d, RA 7160390Secs.44-46, id.391Sec. 44, id.

132

e. Sanggunian:

i. Provinces, highly urbanized cities and independent component cities- appointment by the Presidentii. Component city and municipality- appointment by

governoriii. Sangguniang barangay- appointment by mayoriv. Except for the sangguniang barangay, the appointee shall come from the political party of the member who caused the vacancy.392

v. If the member does not belong to any party, the appointee shall be recommended by the sanggunian.vi. The appointee for the sangguniang barangay shall be recommended by the sangguniang barangay.vii. Vacancy in the representation of the youth and the barangay in the sanggunian shall be filled by the official next in rank of the organization. (§45)

j. Discipline of Local Officials

(1) Elective Officials

(a) Grounds

An elective local official may be disciplined, suspended, or removed from office on any of the following grounds:

i. Disloyalty to the Republic of the Philippines.

ii. Culpable violation of the Constitution

iii. Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of duty.

iv. Commission of any offense involving moral turpitude or an offense punishable by at least prision mayor.

v. Abuse of authority.

392 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 certificate shall be null and void and shall be a ground for administrative action against the official concerned.

133

vi. Unauthorized absence for 15 consecutive working days, except in the case of members of the sangguniangpanlalawigan, panlungsod, bayan and barangay.

vii. Application for, or acquisition of, foreign citizenship or residence or the status of elective barangay officials, shall be filed before the sangguiniangpanlungsod or sangguniangbayan concerned, whose decision shall be final and executory.

(b) Jurisdiction

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

b. By the governor, if the respondent is an elective local official of a component city or municipality;

c. By the mayor, if the respondent is an elective official of the barangay.

(c) Preventive Suspension

Who may impose:

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

b. By the governor, if the respondent is an elective local official of a component city or municipality;

c. By the mayor, if the respondent is an elective official of the barangay.393

When may be imposed: Preventive suspension may be imposed at any time:

a. After the issues are joined;

b. When the evidence of guilt is strong; and

393 The authority to preventively suspend is exercised concurrently by the Ombudsman, pursuant to R.A. 6770; the same law authorizes a preventive suspension of six months (Hagad vs. Gozo-Dadole, G.R. no. 108072, Dec. 12, 1995).

134

c. 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.394

(d) Removal

A verified complaint against any erring local elective official shall be filed to the Office of the President if the official is of the province or city, to the sangguniangPanlalawigan in case municipal elective officials, or to the Sangguniang Bayan or Panlunsod in case of barangay officials.395

Grounds for Removal396

1. Gross Misconduct: irregularity in official duties.397

2. Dishonesty3. Abandonment4. Gross Negligence

(e) Administrative Appeal

Decisions may, within 30 days from receipt thereof, be appealed to:

i. The sangguniangpanlalawigan, in the case of decisions of component cities’ sangguniangpanlungsod and the sangguiniangbayan;

ii. The Office of the President, in the case of decisions of the sangguniangpanlalawigan and the sangguniangpanlungsod of highly urbanized cities and independent component cities. Decisions of the Office of the President shall be final and executory.

(f) Doctrine of Condonation

Condonation by the people of the offense when an incumbent official is reelected.

394 Provided that any single preventive suspension shall not extend beyond 60 days, and in the event several administrative cases are filed against the respondent, he cannot be suspended for more than 90 days within a single year on the same ground or grounds existing and known at the time of the first suspension.395 Sec. 61, RA 7160396 Common Grounds397 liability for gross misconduct may arise when the act, although not one of the official duties, where such act was committed in the workplace or where there is final conviction in a criminal case

135

(2) Appointive Officials398

Officials common to all Municipalities, Cities and Provinces399

a. Secretary to the Sanggunianb. Treasurerc. Assessord. Accountante. Budget Officerf. Planning and Development Coordinatorg. Engineerh. Health Officeri. Civil Registrarj. Administratork. Legal Officerl. Agriculturistm. Social Welfare and Development Officern. Environment and Natural Resources Officero. Architectp. Information Officerq. Cooperatives Officerr. Population Officers. Veterinariant. General Services Officer

k. Recall400

Termination of official relationship of an elective official for loss of confidence prior to the expiration of his term through the will of the electorate.

a. By whom exercised- by the registered voters of a local government unit to which the local elective official subject to such recall belongs.

398In the barangay, the mandated appointive officials are the Barangay Secretary and the Barangay Treasurer, although other officials of the barangay may be appointed by the punong barangay.399Secs. 469-490, R.A. 7160400 The elective local official sought to be recalled shall not be allowed to resign while the recall process is in progress. Limitations on Recall: 1. Any elective local official may be the subject of a recall election only once during his term of office for loss of confidence. 2. No recall shall take place within one year from the date of the official’s assumption to office or one year immediately preceding a regular local election. The official sought to be recalled is automatically a candidate. Recall shall be effective upon the election and proclamation of successor receiving the highest number of votes.

136

b. Two modes of initiating recall:

i. By a preparatory recall assembly401

ii. By the registered voters of the local government unit402

l. Term Limits

Three years, starting from noon of June 30, 1992, or such date as may be provided by law, except that of elective barangay officials. No local elective official shall serve for more than three consecutive terms in the same position. The term of office of barangay officials and members of the sangguniangkabataan shall be for five years, which shall begin after the regular election of barangay officials on the second Monday of May, 1997.403

The three-term limit on a local official is to be understood to refer to terms for which the official concerned was elected. Thus, a person who was elected Vice Mayor in 1988 and who, because of the death of the Mayor, became Mayor in 1989, may still be eligible to run for the position of Mayor in 1998, even if elected as such in 1992 and 1995.404

After three consecutive terms, an elective local official cannot seek immediate reelection for a fourth term. The prohibited election refers to the next regular election for the same office following the end of the third consecutive term. Any other subsequent election, like a recall election is no longer covered by the prohibition.405

401 composed of the following: i. Provincial level: All mayors, vice mayors and sanggunian members of the municipalities and component cities. ii. City level: All punong barangay and sangguniang barangay members in the city. iii. Legislative district level: Where sangguniangpanlalalwigan members are elected by district, all elective municipal officials in the district; and in cases where sangguniangpanglungsod members are elected by district, all elective barangay officials in the district. iv. Municipal level: All punong barangay and sangguniang barangay members in the municipality. Procedure for initiating recall by preparatory recall assembly: A majority of all the preparatory recall assembly members may convene in session in a public place and initiate a recall proceeding against any elective official in the local government unit concerned. Recall of provincial, city or municipal officials shall be validly initiated through a resolution adopted by a majority of all the members of the preparatory recall assembly concerned during its session called for that purpose.402 Initiation of recall by registered voters: Recall of a provincial, city, municipal or barangay official may also be validly initiated upon petition by at least 25% of the total number of registered voters in the local government unit concerned during the election in which the local official sought to be recalled was elected.403 R.A. 8524404Borja v. Comelec, G.R. No. 133495, Sept. 3, 1998405 Socrates vs. Comelec, G.R. No. 154512, November 12, 2002

137

M. National Economy and Patrimony406

1. Regalian Doctrine407

All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State.

2. Nationalist and Citizenship Requirement Provisions

Lands of the public domain are classified into agricultural, forest or timber, mineral lands and national parks. Agricultural lands of the public domain may be further classified by law according to the uses to which they may be devoted. Alienable lands of the public domain shall be limited to agricultural lands. Private corporations or associations may not hold such alienable lands of the public domain except by lease, for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and not to exceed one thousand hectares in area. Citizens of the Philippines may lease not more than five hundred hectares, or acquire not more than twelve hectares thereof, by purchase, homestead, or grant.

Taking into account the requirements of conservation, ecology, and development, and subject to the requirements of agrarian reform, the Congress shall determine, by law, the size of lands of the public domain which may be acquired, developed, held, or leased and the conditions therefor.408

The Congress shall, upon recommendation of the economic and planning agency, when the national interest dictates, reserve to citizens of the Philippines or to corporations or associations at least sixty per centum of whose capital is owned by such citizens, or such higher percentage as Congress may prescribe, certain areas of investments. The Congress shall enact measures that will encourage the formation and operation of enterprises whose capital is wholly owned by Filipinos. In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos.

406 Art. XII407 Sec. 2, Art. XII - universal feudal theory that all lands were held from the Crown (Holmes, Cariño v. Insular Government, 212 US 449).Exception: any land in the possession of an occupant and of his predecessors-in-interest since time immemorial. (Oh Cho v. Director of Land, 75 Phil 890)408 Sec. 3

138

The State shall regulate and exercise authority over foreign investments within its national jurisdiction and in accordance with its national goals and priorities.409

The State shall promote the preferential use of Filipino labor, domestic materials and locally produced goods, and adopt measures that help make them competitive.410

The State shall pursue a trade policy that serves the general welfare and utilizes all forms and arrangements of exchange on the basis of equality and reciprocity.411

3. Exploration, Development and Utilization of Natural Resources

The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least 60 per centum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms and conditions as may provided by law. In cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the development of waterpower, beneficial use may be the measure and limit of the grant.

The State shall protect the nations marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as cooperative fish farming, with priority to subsistence fishermen and fish workers in rivers, lakes, bays, and lagoons.

The President may enter into agreements with foreign-owned corporations involving either technical or financial assistance for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils according to the general terms and conditions provided by law, based on real contributions to the economic growth and general welfare of the country. In such agreements, the State shall promote the development and use of local scientific and technical resources.

409 Sec. 10410 Sec. 12411 Sec. 13

139

The President shall notify the Congress of every contract entered into in accordance with this provision, within thirty days from its execution.412

4. Franchises, Authority and Certificates for Public Utilities

No franchise, certificate, or any other form of authorization for the operation of a public utility shall be granted except to citizens of the Philippines or to corporations or associations organized under the laws of the Philippines, at least sixty per centum of whose capital is owned by such citizens; nor shall such franchise, certificate, or authorization be exclusive in character or for a longer period than fifty years. Neither shall any such franchise or right be granted except under the condition that it shall be subject to amendment, alteration, or repeal by the Congress when the common good so requires. The State shall encourage equity participation in public utilities by the general public. The participation of foreign investors in the governing body of any public utility enterprise shall be limited to their proportionate share in its capital, and all the executive and managing officers of such corporation or association must be citizens of the Philippines.413

5. Acquisition, Ownership and Transfer of Public and Private Lands

Save in cases of hereditary succession, no private lands shall be transferred or conveyed except to individuals, corporations, or associations qualified to acquire or hold lands of the public domain.414

Notwithstanding the provisions of Section 7 of this Article, a natural-born citizen of the Philippines who has lost his Philippine citizenship may be a transferee of private lands, subject to limitations provided by law. 415

6. Practice of Professions

The sustained development of a reservoir of national talents consisting of Filipino scientists, entrepreneurs, professionals, managers, high-level technical manpower and skilled workers and craftsmen in all fields shall be promoted by the State. The State shall encourage appropriate technology and regulate its transfer for the national benefit.

412 Sec. 2413 Sec. 11414 Sec. 7415 Sec. 8

140

The practice of all professions in the Philippines shall be limited to Filipino citizens, save in cases prescribed by law.416

7. Organization and Regulation of Corporations, Private and Public

The use of property bears a social function, and all economic agents shall contribute to the common good. Individuals and private groups, including corporations, cooperatives, and similar collective organizations, shall have the right to own, establish, and operate economic enterprises, subject to the duty of the State to promote distributive justice and to intervene when the common good so demands.417

8. Monopolies, Restraint of Trade and Unfair Competition

The State shall regulate or prohibit monopolies when the public interest so requires. No combinations in restraint of trade or unfair competition shall be allowed.418

N. Social Justice and Human Rights419

1. Concept of Social Justice

Social Justice as Envisioned by the Constitution:

- equitable diffusion of wealth and political power for common good;

- regulation of acquisition, ownership, use and disposition of property and its increments; and- creation of economic opportunities based on freedom of initiative and self-reliance.420

2. Commission on Human Rights421

Powers and functions:

1. Investigate, on its own or on complaint by any party, all forms of human rights violations involving civil and political rights;

416 Sec. 14417 Sec. 6418 Sec. 19419 Art. XIII420ibid, Secs. 1 and 2421composed of a Chairman and four Members who must be natural-born citizens of the Philippines and a majority of whom shall be members of the Bar.

141

2. Adopt its operational guidelines and rules of procedure, and cite for contempt for violations thereof in accordance with the Rules of Court;

3. Provide appropriate legal measures for the protection of human rights of all persons within the Philippines, as well as Filipinos residing abroad, and provide for preventive measures and legal aid services to the under-privileged whose human rights have been violated or need protection;

4. Exercise visitorial powers over jails, prisons, or detention facilities;

5. Establish a continuing program of research, education, and information to enhance respect for the primacy of human rights;

6. Recommend to Congress effective measures to promote human rights and to provide for compensation to victims of violations of human rights, or their families;

7. Monitor the Philippine Government's compliance with international treaty obligations on human rights;

8. Grant immunity from prosecution to any person whose testimony or whose possession of documents or other evidence is necessary or convenient to determine the truth in any investigation conducted by it or under its authority;

9. Request the assistance of any department, bureau, office, or agency in the performance of its functions;

10. Appoint its officers and employees in accordance with law; and

11. Perform such other duties and functions as may be provided by law.422

O. Education, Science, Technology, Arts, Culture and Sports

1. Academic Freedom

Aspects:

422 Sec. 18

142

1. to the institution – to provide that atmosphere which is most conducive to speculation, experimentation and creation;423

2. to the faculty -

a. freedom in research and in the publication of the results, subject to the adequate performance of his other academic duties;

b. freedom in the classroom in discussing his subject, less controversial matters which bear no relation to the subject;

c. freedom from institutional censorship or discipline, limited by his special position in the community.

3. to the student - right to enjoy in school the guarantee of the Bill of rights424

P. Public International Law

1. Concepts

The body of legal rules, which apply between sovereign states and such other entities as have been granted international personality.

a. Obligations ErgaOmnes

In international law, it has been used as a legal term describing obligations owed by states towards the community of states as a whole. An ergaomnes obligation exists because of the universal and undeniable interest in the perpetuation of critical rights (and the prevention of their breach). Consequently, any state has the right to complain of a breach. Examples of ergaomnes norms include piracy, genocide, slavery, torture, and racial discrimination. The concept was recognized in the

423 Freedom to determine for itself on academic grounds:a. who may teach;b. what may be taught;c. how shall it be taught; andd. who may be admitted to study (Miriam College Foundation v. CA, GR No. 127930, December 15, 2000); As part of its constitutionally enshrined academic freedom, the University of the Philippines has the prerogative to determine who may teach its students. The Civil Service Commission has no authority to force it to dismiss a member of its faculty even in the guise of enforcing Civil Service Rules.(UP v. Civil Service Commission, GR No.132860, April 3, 2001)424 Non v. Dames, 185 SCRA 523

143

International Court of Justice's decision in the Barcelona Traction case, where it said:

"(A)n essential distinction should be drawn between the obligations of a State towards the International community as a whole, and those arising vis-a-vis another State In the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the Importance of the rights Involved, all States can be held to have a legal Interest In their protection; they are obligations ergaomnes. Such obligations derive, for example. In contemporary International law, from the outlawing of 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. Some of the corresponding rights of protection have entered Into the body of general international law...; others are conferred by International Instruments of a universal or quasi universal character."

b. Jus Cogens

A rule which has the status of a peremptory norm of international law.

Elements:

1. a norm accepted and recognized 2. by the int'l community of States as a whole3. as a norm from which no derogation is permitted.4. It can only be modified by a subsequent norm having the same

character.425

If a treaty, at the time of its conclusion, conflicts with jus cogens, it is void.

c. Concept of Aeguo Et Bono

This is the basis for a decision by an international tribunal on the grounds of justice and fairness - equity overrides all other rules of law.

2. International and National Law

International Law – the law that deals with the conduct of states and international organizations, their relations with each other and , in

425 Examples: (1) prohibition against the unlawful use of force;(2) prohibition against piracy, genocide, and slavery

144

certain circumstances, their relations with persons, natural or juridical.426

3. Sources

Primary:

i. Treaties- the general rule is that the treaty to be considered a direct source of international law, it must be concluded by sizable number of states and thus reflect the will or at least the consensus of the family of nations.

ii. Custom- a practice which has grown up between states and has come to be accepted as binding by the mere fact of persistent usage over a long period of time. Custom is distinguished from usage in that the latter while also a long established way of doing things by states, is not coupled with the conviction that it is obligatory and right.

iii. General Principles of Law- mostly derived from the law of nature and are observed by the majority of states because they are believed to be good and just (e.g. prescription, estoppel, consent, res judicata and pactasuntservanda).

Secondary Sources:

i. Decisions of international tribunalsii. Writings and teachings of the most highly qualified publicists

4. Subjects

a. States

A state is a group of people, living together in a fixed territory, organized for political ends under an independent government, and capable of entering into international relations with other states.

b. International Organizations

426 American Third Restatement

145

May be vested with international personality, provided that they are non-political and are autonomous and not subject to control by any state, e.g. ILO, FAO, WHO.

c. Individuals

Although traditionally, individuals have been considered merely as objects, not subjects, of international law, they have also been granted a certain degree of international personality under a number of international agreements.

5. Diplomatic and Consular Law427

6. Treaties

Treaty – a formal agreement, usually but not necessarily in writing, which is entered into by states or entities possessing the treaty-making capacity, for the purpose of regulating their mutual relations under the law of nations.428

An international agreement concluded between states in written form and governed by international law whether embodied in a single instrument or in two or more related instruments.429

7. Nationality and Statelessness

Nationality – membership in a political community with all its concomitant rights and obligations

An individual acquires the nationality of the state where he is born jure soli or the nationality of his parents jure sanguinis.

Statelessness – is the condition or status of an individual who is born without any nationality or who loses his nationality without retaining or acquiring another.430

427 See Reference428 As a rule, a treaty is binding only on the contracting parties, including not only the original signatories but also other states which, although they may not have participated in the negotiation of the agreements, have been allowed by its term to sign it later by a process known as accession.429 Vienna Convention on the Law of Treaties, 1969430 Treatment of Stateless Individual - international conventions provide that stateless individuals are to be treated more or less like the subjects of a foreign state.

146

A stateless individual is, from the traditional viewpoint, powerless to assert any right that otherwise would be available to him under international law where he is a national of a particular state. Any wrong suffered by him through the act of omission of a state would be damnumabsqueinjuria for in theory no other state had been offended and no international delinquency committed as a result of the damage caused upon him.

8. Treatment of Aliens

Flowing from its right to existence and as an attribute of sovereignty, no State is under obligation to admit aliens. The State can determine in what cases and under what conditions it may admit aliens.

a. Extradition– is the surrender of a person by one state to another state where he is wanted for prosecution or, if already convicted for punishment.431

(1) Fundamental Principles

1. Extradition is based on the consent of the state of asylum as expressed in a treaty or manifested as an act of goodwill.

2. Under the principle of specialty, a fugitive who is extradited may be tried only for the crime specified in the request for extradition and included in the list of offenses in the extradition treaty.

If he is charged with any other offense committed before his escape, the state of refuge - and not the accused – has a right to object; Nevertheless, the prosecution will be allowed if the extraditing state agrees or does not complain.

3. Any person may be extradited, whether he be a national of the requesting state, of the state of refuge or of another state. The practice of many states now, however, is not to extradite their own nationals but to punish them under their own laws in accordance with the nationality principle of criminal jurisdiction.

4. Political and religious offenders are generally not subject to extradition.

431 The extradition of a person is required only if there is a treaty between the state of refuge and the state of origin. In the absence of such a treaty, the local state has every right to grant asylum to the fugitive and to refuse to deliver him back to the latter state even if he is its national.

147

In order to constitute an offense of a political character, there must be two or more parties in the state, each seeking to impose the government of their own choice on the other. 432

5. In the absence of special agreement, the offense must have been committed within the territory or against the interests of the demanding state.

6. The act for which the extradition is sought must be punishable in both the requesting and requested states under what is known as the rule of double criminality.

(2) Procedure433

1. Request through diplomatic representative with:

a. decision of conviction;b. criminal charge and warrant of arrest;c. recital of facts;d. text of applicable law designating the offense;e. pertinent papers.

2. DFA forwards request to DOJ;3. DOJ files petition for extradition with RTC;434

4. Upon receipt of a petition for extradition and its supporting documents, the judge must study them and make, as soon as possible, a prima facie finding whether

(a) they are sufficient in form and substance, (b) they show compliance with the Extradition Treaty and

Law, and (c) the person sought is extraditable.

At his discretion, the judge may require the submission of further documentation or may personally examine the affiants and witnesses of the petitioner. If, in spite of this study and examination, no prima facie finding is possible, the petition may be dismissed at the discretion of the judge.

On the other hand, if the presence of a prima facie case is determined, then the magistrate must immediately issue a warrant for

432 Under the attentat clause, the murder of the head of state or any member of his family is not to be regarded as a political offense for purposes of extradition. Genocide is not a political offense.433 Judicial and diplomatic process of request and surrender, PD 1069434 Due process requirement complied at the RTC level upon filing of petition for extradition. No need to notify the person subject of the extradition process when the application is still with the DFA or DOJ

148

the arrest of the extraditee,435 who is at the same time summoned to answer the petition and to appear at scheduled summary hearings.

5. hearing436

6. appeal to CA within ten days whose decision shall be final and executory;

7. Decision forwarded to DFA through the DOJ;8. Individual placed at the disposal of the authorities of requesting

state – costs and expenses to be shouldered by requesting state.437

(3) Distinguished from Deportation

Deportation – removal of an alien out of country, simply because his presence is deemed inconsistent with the public welfare, and without any punishment being imposed or contemplated either under the laws of the country out of which he is sent, or under those of the country to which he is taken.

Extradition Deportation1. affected at the request of the state of nation

1. unilateral act of the local state

2. it is based on offenses generally committed in the state of origin

2. based on causes arising in the local state.

3. calls for the return of the fugitive to the state of origin

3. an undesirable alien may be deported to a state other than his own or the state of origin.

435 Prior to the issuance of the warrant, the judge must not inform or notify the potential extraditee of the pendency of the petition, lest the latter be given the opportunity to escape and frustrate the proceedings. The foregoing procedure will “best serve the ends of justice” in extradition cases; (Government of the US vs. Hon. Purganan and Mark Jimenez G.R. No. G.R. No. 148571. September 24, 2002)436 provide counsel de officio if necessary;437 A state may not compel another state to extradite a criminal without going through the legal processes provided in the laws of the former. Extradition is not a criminal proceeding which will call into operation all the rights of an accused provided in the bill of rights For the provisional arrest of an accused to continue, the formal request for extradition is not required to be filed in court – it only needs to be received by the requested state in accordance with PD 1069

149

9. International Human Rights Law

a. Universal Declaration of Human Rights438

b. International Covenant on Civil and Political Rights (ICCPR)439

c. International Covenant on Economic, Social and Cultural Rights (ICESCR)440

10. International Humanitarian Law (IHL) and Neutrality

a. Categories of Armed Conflicts

(1) International Armed Conflicts

Those in which at least two States are involved. They are subject to a wide range of rules, including those set out in the four Geneva Conventions and Additional Protocol I.

(2) Internal or Non-International Armed Conflict

Those restricted to the territory of a single State, involving either regular armed forces fighting groups of armed dissidents, or armed groups fighting each other. A more limited range of rules apply to internal armed conflicts and are laid down in Article 3 common to the four Geneva Conventions as well as in Additional Protocol II.

(3) War of National Liberation

The first Protocol of 1977 provides that peoples fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination are to be treated as if they were engaged in an international armed conflict and not a civil war. There is considerable difficulty over the meaning of this phrase, and it may be difficult to apply in practice.441

b. Core International Obligations of States in IHL

438 See Reference439 ibid440 ibid441 Encyclopedia Britannica

150

c. Principles of IHL

(1) Treatment of Civilians442

Distinction between Civilians and Combatants

The parties to the conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians.443

Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.444

All members of the armed forces of a party to the conflict are combatants, except medical and religious personnel.445

The armed forces of a party to the conflict consist of all organized armed forces, groups and units which are under a command responsible to that party for the conduct of its subordinates.446

Civilians are persons who are not members of the armed forces. The civilian population comprises all persons who are civilians.447

Civilians are protected against attack, unless and for such time as they take a direct part in hostilities.448

Distinction between Civilian Objects and Military Objectives

The parties to the conflict must at all times distinguish between civilian objects and military objectives. Attacks may only be directed against military objectives. Attacks must not be directed against civilian objects.449

In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose partial or total destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.450

442 Customary International Humanitarian Law, March 2005, Rules 1-24443 Rule 1444 Rule 2445 Rule 3446 Rule 4447 Rule 5448 Rule 6449 Rule 7450 Rule 8

151

Civilian objects are all objects that are not military objectives.451

Civilian objects are protected against attack, unless and for such time as they are military objectives.452

Indiscriminate Attacks

Indiscriminate attacks are prohibited.453

Indiscriminate attacks are those:

(a) which are not directed at a specific military objective; (b) which employ a method or means of combat which cannot be directed at a specific military objective; or (c) which employ a method or means of combat the effects of which cannot be limited as required by international humanitarian law; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.454

Attacks by bombardment by any method or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects are prohibited.455

Proportionality in Attack

Launching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated, is prohibited.456

Precautions in Attack

In the conduct of military operations, constant care must be taken to spare the civilian population, civilians and civilian objects. All feasible precautions must be taken to avoid, and in any event to minimize,

451 Rule 9452 Rule 10453 Rule 11454 Rule 12455 Rule 13456 Rule 14

152

incidental loss of civilian life, injury to civilians and damage to civilian objects.457

Each party to the conflict must do everything feasible to verify that targets are military objectives.458

Each party to the conflict must take all feasible precautions in the choice of means and methods of warfare with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects.459

Each party to the conflict must do everything feasible to assess whether the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.460

Each party to the conflict must do everything feasible to cancel or suspend an attack if it becomes apparent that the target is not a military objective or that the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.461

Each party to the conflict must give effective advance warning of attacks which may affect the civilian population, unless circumstances do not permit.462

When a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected must be that the attack on which may be expected to cause the least danger to civilian lives and to civilian objects.463

Precautions against the Effects of Attacks

The parties to the conflict must take all feasible precautions to protect the civilian population and civilian objects under their control against the effects of attacks.464

457 Rule 15458 Rule 16459 Rule 17460 Rule 18461 Rule 19462Rule 20.463 Rule 21464 Rule 22

153

Each party to the conflict must, to the extent feasible, avoid locating military objectives within or near densely populated areas.465

Each party to the conflict must, to the extent feasible, remove civilian persons and objects under its control from the vicinity of military objectives.466

(2) Prisoners of War

Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

(1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.

(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions:

(a) that of being commanded by a person responsible for his subordinates;

(b) that of having a fixed distinctive sign recognizable at a distance;

(c) that of carrying arms openly;(d) that of conducting their operations in accordance with the laws and customs of war.

(3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

(4) Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces,

465 Rule 23466 Rule 24

154

provided that they have received authorization, from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.

(5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.

(6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

The following shall likewise be treated as prisoners of war under the present Convention:

(1) Persons belonging, or having belonged, to the armed forces of the occupied country, if the occupying Power considers it necessary by reason of such allegiance to intern them, even though it has originally liberated them while hostilities were going on outside the territory it occupies, in particular where such persons have made an unsuccessful attempt to rejoin the armed forces to which they belong and which are engaged in combat, or where they fail to comply with a summons made to them with a view to internment.

(2) The persons belonging to one of the categories enumerated in the present Article, who have been received by neutral or non-belligerent Powers on their territory and whom these Powers are required to intern under international law, without prejudice to any more favourable treatment which these Powers may choose to give and with the exception of Articles 8, 10, 15, 30, fifth paragraph, 58-67, 92, 126 and, where diplomatic relations exist between the Parties to the conflict and the neutral or non-belligerent Power concerned, those Articles concerning the Protecting Power. Where such diplomatic relations exist, the Parties to a conflict on whom these persons depend shall be allowed to perform towards them the functions of a Protecting Power as provided in the present Convention, without prejudice to the functions which these Parties normally exercise in conformity with diplomatic and consular usage and treaties.467

d. Law on Neutrality

467 Art 4, Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949

155

Law governing a country's abstention from participating in a conflict or aiding a participant of such conflict, and the duty of participants to refrain from violating the territory, seizing the possession, or hampering the peaceful commerce of the neutral countries.468. For example, the Neutrality Act of 1939,469 was passed by Congress for the purpose of preserving the neutrality of the United States and averting the risks that brought the United States into World War I.470 The codified law of traditional neutrality is to be found in The Hague Conventions Nos. V and XIII of 1907.

11. Law of the Sea471

a. Baselines

Consist of straight lines joining appropriate points of the outermost islands of the archipelago.

b. Archipelagic States

(1) Straight Archipelagic Baselines

1. In localities where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the method of straight baselines joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured.

2. Where because of the presence of a delta and other natural conditions the coastline is highly unstable, the appropriate points may beselected along the furthest seaward extent of the low-water line and,notwithstanding subsequent regression of the low-water line, the straight baselines shall remain effective until changed by the coastal State inaccordance with this Convention.

3. The drawing of straight baselines must not depart to any appreciableextent from the general direction of the coast, and the sea areas lying within the lines must be sufficiently closely linked to the land domain to be subjectto the regime of internal waters.

468 166 U.S. 1469 22 U.S.C. §§441 et seq.,470 37 F. Supp. 268, 272471 United Nations Convention on the Law of the Law of the Sea (UNCLOS)

156

4. Straight baselines shall not be drawn to and from low-tide elevations,unless lighthouses or similar installations which are permanently above sea level have been built on them or except in instances where the drawing ofbaselines to and from such elevations has received general international recognition.

5. Where the method of straight baselines is applicable under paragraph 1, account may be taken, in determining particular baselines, ofeconomic interests peculiar to the region concerned, the reality and the importance of which are clearly evidenced by long usage.

6. The system of straight baselines may not be applied by a State in such a manner as to cut off the territorial sea of another State from the highseas or an exclusive economic zone.472

(2) Archipelagic Waters

The waters around, between and connecting the islands of the archipelago, regardless of their breadth or dimension,473 are to be treated as internal waters.

(3) Archipelagic Sea Lanes Passage

The exercise in accordance with this Convention of the rights of navigation and overflight in the normal mode solely for the purpose of continuous, expeditious and unobstructed transit between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone.

c. Internal Waters

Bodies of water within the landmass, such as rivers, lakes, canals, gulfs, bays and straits.

All waters on the landward side of the baselines of the territorial sea.474

d. Territorial Sea

472 Art. 7, UNCLOS473 Archipelago doctrine474 UNCLOS

157

The belt of the sea located between the coast and intrernal waters of the coastal state on the one hand,and the high seas on the other, extending up to 12 nautical miles from the low-water mark, or in the case of archipelagic states, from the baselines.

e. Exclusive Economic Zone475

Extends 200 nautical miles from the coast or the baselines. All living and non-living resources found therein belong exclusively to the coastal state.

f. Continental Shelf

(1) Extended Continental Shelf

Refers to:

a. the seabed and the subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea, to a depth of 200 meters or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas; and

b. to the seabed and subsoil of similar areas adjacent to the coasts of islands.

g. Tribunal of the Law of the Sea476

ITLOS is composed of 21 independent members elected by the States Parties477 to the UNCLOS from among persons with recognized competence in the field of the law of the sea and representing the principal legal systems of the world. ITLOS has jurisdiction over all disputes and all applications submitted to it in accordance with UNCLOS and over all matters specifically provided for in any other agreement which confers jurisdiction on the ITLOS.

12. International Environment Law

a. Principle 21 of Stockholm Declaration

475 or the patrimonial sea476 International Tribunal for the Law of the Sea (ITLOS)477 States which have consented to be bound by the Convention and for which the Convention is in force

158

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 areas beyond the limits of national jurisdiction.478

Reference

Diplomatic and Consular Law

Vienna Convention on Diplomatic Relations(April 18, 1961)

Article 1

For the purpose of the present Convention, the following expressions shall have the meanings hereunder assigned to them:

(a) The “head of the mission” is the person charged by the sending State with the duty of acting in that capacity;

(b) The “members of the mission” are the head of the mission and the members of the staff of the mission;

(c) The “members of the staff of the mission” are the members of the diplomatic staff, of the administrative and technical staff and of the service staff of the mission;

(d) The “members of the diplomatic staff” are the members of the staff of the mission having diplomatic rank;

(e) A “diplomatic agent” is the head of the mission or a member of the diplomatic staff of the mission;

(f) The “members of the administrative and technical staff” are the members of the staff of the mission employed in the administrative and technical service of the mission;

(g) The “members of the service staff” are the members of the staff of the mission in the domestic service of the mission;

478 Declaration of the United Nations Conference on the Human Environment The United Nations Conference on the Human Environment, having met at Stockholm from 5 to 16 June 1972, considered the need for a common outlook and for common principles to inspire and guide the peoples of the world in the preservation and enhancement of the human environment.

159

(h) A “private servant” is a person who is in the domestic service of a member of the mission and who is not an employee of the sending State;

(i) The “premises of the mission” are the buildings or parts of buildings and the land ancillary thereto, irrespective of ownership, used for the purposes of the mission including the residence of the head of the mission.

Article 2

The establishment of diplomatic relations between States, and of permanent diplomatic missions, takes place by mutual consent.

Article 3

1. The functions of a diplomatic mission consist, inter alia, in:

(a) Representing the sending State in the receiving State;(b) Protecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by international law;

(c) Negotiating with the Government of the receiving State;

(d) Ascertaining by all lawful means conditions and developments in the receiving State, and reporting thereon to the Government of the sending State;

(e) Promoting friendly relations between the sending State and the receiving State, and developing their economic, cultural and scientific relations.

2. Nothing in the present Convention shall be construed as preventing the performance of consular functions by a diplomatic mission.

Article 4

1. The sending State must make certain that the agrément of the receiving State has been given for the person it proposes to accredit as head of the mission to that State.

2. The receiving State is not obliged to give reasons to the sending State for a refusal of agrément.

Article 5

1. The sending State may, after it has given due notification to the receiving States concerned, accredit a head of mission or assign any member of the diplomatic staff, as the case may be, to more than one State, unless there is express objection by any of the receiving States.

2. If the sending State accredits a head of mission to one or more other States it may establish a diplomatic mission headed by a chargé d’affaires ad interim in each State where the head of mission has not his permanent seat.

3. A head of mission or any member of the diplomatic staff of the mission may act as representative of the sending State to any international organization.

Article 6

160

Two or more States may accredit the same person as head of mission to another State, unless objection is offered by the receiving State.

Article 7

Subject to the provisions of articles 5, 8, 9 and 11, the sending State may freely appoint the members of the staff of the mission. In the case of military, naval or air attachés, the receiving State may require their names to be submitted beforehand, for its approval.

Article 8

1. Members of the diplomatic staff of the mission should in principle be of the nationality of the sending State.

2. Members of the diplomatic staff of the mission may not be appointed from among persons having the nationality of the receiving State, except with the consent of that State which may be withdrawn at any time.

3. The receiving State may reserve the same right with regard to nationals of a third State who are not also nationals of the sending State.

Article 9

1. The receiving State may at any time and without having to explain its decision, notify the sending State that the head of the mission or any member of the diplomatic staff of the mission is persona non grata or that any other member of the staff of the mission is not acceptable. In any such case, the sending State shall, as appropriate, either recall the person concerned or terminate his functions with the mission. A person may be declared non grata or not acceptable before arriving in the territory ofthe receiving State.

2. If the sending State refuses or fails within a reasonable period to carry out its obligations under paragraph 1 of this article, the receiving State may refuse to recognize the person concerned as a member of the mission.

Article 10

1. The Ministry for Foreign Affairs of the receiving State, or such other ministry as may be agreed, shall be notified of:

(a) The appointment of members of the mission, their arrival and their final departure or the termination of their functions with the mission;

(b) The arrival and final departure of a person belonging to the family of a member of the mission and, where appropriate, the fact that a person becomes or ceases to be a member of the family of a member of the mission;

(c) The arrival and final departure of private servants in the employ of persons referred to in subparagraph (a) of this paragraph and, where appropriate, the fact that they are leaving the employ of such persons;

(d) The engagement and discharge of persons resident in the receiving State as members of the mission or private servants entitled to privileges and immunities.

161

2. Where possible, prior notification of arrival and final departure shall also be given.

Article 11

1. In the absence of specific agreement as to the size of the mission, the receiving State may require that the size of a mission be kept within limits considered by it to be reasonable and normal, having regard to circumstances and conditions in the receiving State and to the needs of the particular mission.

2. The receiving State may equally, within similar bounds and on a non-discriminatory basis, refuse to accept officials of a particular category.

Article 12

The sending State may not, without the prior express consent of the receiving State, establish offices forming part of the mission in localities other than those in which the mission itself isestablished.

Article 13

1. The head of the mission is considered as having taken up his functions in the receiving State either when he has presented his credentials or when he has notified his arrival and a true copy of hiscredentials has been presented to the Ministry for Foreign Affairs of the receiving State, or such otherministry as may be agreed, in accordance with the practice prevailing in the receiving State which shall be applied in a uniform manner.

2. The order of presentation of credentials or of a true copy thereof will be determined by the date and time of the arrival of the head of the mission.

Article 14

1. Heads of mission are divided into three classes, namely:

(a) That of ambassadors or nuncios accredited to Heads of State, and other heads of mission of equivalent rank;

(b) That of envoys, ministers and internuncios accredited to Heads of State; (c) That of chargés d’affaires accredited to Ministers for Foreign Affairs.

2. Except as concerns precedence and etiquette, there shall be no differentiation between heads of mission by reason of their class.

Article 15

The class to which the heads of their missions are to be assigned shall be agreed between States.

Article 16

1. Heads of mission shall take precedence in their respective classes in the order of the date and time of taking up their functions in accordance with article 13.

162

2. Alterations in the credentials of a head of mission not involving any change of class shall not affect his precedence.

3. This article is without prejudice to any practice accepted by the receiving State regarding the precedence of the representative of the Holy See.

Article 17

The precedence of the members of the diplomatic staff of the mission shall be notified by the head of the mission to the Ministry for Foreign Affairs or such other ministry as may be agreed.

Article 18

The procedure to be observed in each State for the reception of heads of mission shall be uniform in respect of each class.

Article 19

1. If the post of head of the mission is vacant, or if the head of the mission is unable to perform his functions a chargé d’affaires ad interim shall act provisionally as head of the mission. The name of the chargé d’affaires ad interim shall be notified, either by the head of the mission or, in case he is unable to do so, by the Ministry for Foreign Affairs of the sending State to the Ministry for Foreign Affairs of the receiving State or such other ministry as may be agreed.

2. In cases where no member of the diplomatic staff of the mission is present in the receiving State, a member of the administrative and technical staff may, with the consent of the receiving State, be designated by the sending State to be in charge of the current administrative affairs of the mission.

Article 20

The mission and its head shall have the right to use the flag and emblem of the sending State on the premises of the mission, including the residence of the head of the mission, and on his means of transport.

Article 21

1. The receiving State shall either facilitate the acquisition on its territory, in accordance with its laws, by the sending State of premises necessary for its mission or assist the latter in obtaining accommodation in some other way.

2. It shall also, where necessary, assist missions in obtaining suitable accommodation for their members.

Article 22

1. The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission.

163

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.

3. The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.

Article 23

1. The sending State and the head of the mission shall be exempt from all national, regional or municipal dues and taxes in respect of the premises of the mission, whether owned or leased, other than such as represent payment for specific services rendered.

2. The exemption from taxation referred to in this article shall not apply to such dues and taxes payable under the law of the receiving State by persons contracting with the sending State or the head of the mission.

Article 24

The archives and documents of the mission shall be inviolable at any time and wherever they maybe.

Article 25

The receiving State shall accord full facilities for the performance of the functions of the mission.

Article 26

Subject to its laws and regulations concerning zones entry into which is prohibited or regulated for reasons of national security, the receiving State shall ensure to all members of the mission freedom of movement and travel in its territory.

Article 27

1. The receiving State shall permit and protect free communication on the part of the mission for all official purposes. In communicating with the Government and the other missions and consulates of the sending State, wherever situated, the mission may employ all appropriate means, including diplomatic couriers and messages in code or cipher. However, the mission may install and use a wireless transmitter only with the consent of the receiving State.

2. The official correspondence of the mission shall be inviolable. Official correspondence means all correspondence relating to the mission and its functions.

164

3. The diplomatic bag shall not be opened or detained.

4. The packages constituting the diplomatic bag must bear visible external marks of their character and may contain only diplomatic documents or articles intended for official use.

5. The diplomatic courier, who shall be provided with an official document indicating his status and the number of packages constituting the diplomatic bag, shall be protected by the receiving State in the performance of his functions. He shall enjoy person inviolability and shall not be liable to any form of arrest or detention.

6. The sending State or the mission may designate diplomatic couriers ad hoc. In such cases the provisions of paragraph 5 of this article shall also apply, except that the immunities therein mentioned shall cease to apply when such a courier has delivered to the consignee the diplomatic bag in his charge.

7. A diplomatic bag may be entrusted to the captain of a commercial aircraft scheduled to land at an authorized port of entry. He shall be provided with an official document indicating the number of packages constituting the bag but he shall not be considered to be a diplomatic courier. The mission may send one of its members to take possession of the diplomatic bag directly and freely from the captain of the aircraft.

Article 28

The fees and charges levied by the mission in the course of its official duties shall be exempt from all dues and taxes.

Article 29

The person of a 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.

Article 30

1. The private residence of a diplomatic agent shall enjoy the same inviolability and protection as the premises of the mission.

2. His papers, correspondence and, except as provided in paragraph 3 of article 31, his property, shall likewise enjoy inviolability.

Article 31

1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:

(a) A real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;

(b) An action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State;

165

(c) An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.

2. A diplomatic agent is not obliged to give evidence as a witness.

3. No measures of execution may be taken in respect of a diplomatic agent except in the cases coming under subparagraphs (a), (b) and (c) of paragraph 1 of this article, and provided that the measures concerned can be taken without infringing the inviolability of his person or of his residence.

4. The immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State.

Article 32

1. The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under article 37 may be waived by the sending State.

2. Waiver must always be express.

3. The initiation of proceedings by a diplomatic agent or by a person enjoying immunity from jurisdiction under article 37 shall preclude him from invoking immunity from jurisdiction in respect of any counterclaim directly connected with the principal claim.

4. Waiver of immunity from jurisdiction in respect of civil or administrative proceedings shall not be held to imply waiver of immunity in respect of the execution of the judgement, for which a separate waiver shall be necessary.

Article 33

1. Subject to the provisions of paragraph 3 of this article, a diplomatic agent shall with respect to services rendered for the sending State be exempt from social security provisions which may be in force in the receiving State.

2. The exemption provided for in paragraph 1 of this article shall also apply to private servants who are in the sole employ of a diplomatic agent, on condition:

(a) That they are not nationals of or permanently resident in the receiving State; and

(b) That they are covered by the social security provisions which may be in force in the sending State or a third State.

3. A diplomatic agent who employs persons to whom the exemption provided for in paragraph 2 of this article does not apply shall observe the obligations which the social security provisions of the receiving State impose upon employers.

4. The exemption provided for in paragraphs 1 and 2 of this article shall not preclude voluntary participation in the social security system of the receiving State provided that such participation is permitted by that State.

166

5. The provisions of this article shall not affect bilateral or multilateral agreements concerning social security concluded previously and shall not prevent the conclusion of such agreements in the future.

Article 34

A diplomatic agent shall be exempt from all dues and taxes, personal or real, national, regional or municipal, except:

(a) Indirect taxes of a kind which are normally incorporated in the price of goods or services;

(b) Dues and taxes on private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;

(c) Estate, succession or inheritance duties levied by the receiving State, subject to the provisions of paragraph 4 of article 39;

(d) Dues and taxes on private income having its source in the receiving State and capital taxes on investments made in commercial undertakings in the receiving State;

(e) Charges levied for specific services rendered;

(f) Registration, court or record fees, mortgage dues and stamp duty, with respect to immovable property, subject to the provisions of article 23.

Article 35

The receiving State shall exempt diplomatic agents from all personal services, from all public service of any kind whatsoever, and from military obligations such as those connected with requisitioning, military contributions and billeting.

Article 36

1. The receiving State shall, in accordance with such laws and regulations as it may adopt, permit entry of and grant exemption from all customs duties, taxes, and related charges other than charges for storage, cartage and similar services, on

(a) Articles for the official use of the mission;

(b) Articles for the personal use of a diplomatic agent or members of his family forming part of his household, including articles intended for his establishment.

2. The personal baggage of a diplomatic agent shall be exempt from inspection, unless there are serious grounds for presuming that it contains articles not covered by the exemptions mentioned in paragraph 1 of this article, or articles the import or export of which is prohibited by the law or controlled by the quarantine regulations of the receiving State. Such inspection shall be conducted only in the presence of the diplomatic agent or of his authorized representative.

Article 37

167

1. The members of the family of a diplomatic agent forming part of his household shall, if they are not nationals of the receiving State, enjoy the privileges and immunities specified in articles 29 to 36.

2. Members of the administrative and technical staff of the mission, together with members of their families forming part of their respective households, shall, if they are not nationals of orpermanently resident in the receiving State, enjoy the privileges and immunities specified in articles 29 to 35, except that the immunity from civil and administrative jurisdiction of the receiving State specified in paragraph 1 of article 31 shall not extend to acts performed outside the course of their duties. They shall also enjoy the privileges specified in article 36, paragraph 1, in respect of articles imported at the time of first installation.

3. Members of the service staff of the mission who are not nationals of or permanently resident in the receiving State shall enjoy immunity in respect of acts performed in the course of their duties, exemption from dues and taxes on the emoluments they receive by reason of their employment and the exemption contained in article 33.

4. Private servants of members of the mission shall, if they are not nationals of or permanently resident in the receiving State, be exempt from dues and taxes on the emoluments they receive by reason of their employment. In other respects, they may enjoy privileges and immunities only to the extent admitted by the receiving State. However, the receiving State must exercise its jurisdiction over those persons in such a manner as not to interfere unduly with the performance of the functions of the mission.

Article 38

1. Except insofar as additional privileges and immunities may be granted by the receiving State, a diplomatic agent who is a national of or permanently resident in that State shall enjoy only immunity from jurisdiction, and inviolability, in respect of official acts performed in the exercise of his functions.

2. Other members of the staff of the mission and private servants who are nationals of or permanently resident in the receiving State shall enjoy privileges and immunities only to the extent admitted by the receiving State. However, the receiving State must exercise its jurisdiction over those persons in such a manner as not to interfere unduly with the performance of the functions of the mission.

Article 39

1. Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be agreed.

2. When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist.

168

3. In case of the death of a member of the mission, the members of his family shall continue to enjoy the privileges and immunities to which they are entitled until the expiry of a reasonable period inwhich to leave the country.

4. In the event of the death of a member of the mission not a national of or permanently resident in the receiving State or a member of his family forming part of his household, the receiving State shall permit the withdrawal of the movable property of the deceased, with the exception of any property acquired in the country the export of which was prohibited at the time of his death. Estate, succession and inheritance duties shall not be levied on movable property the presence of which in the receiving State was due solely to the presence there of the deceased as a member of the mission or as a member of the family of a member of the mission.

Article 40

1. If a diplomatic agent passes through or is in the territory of a third State, which has granted him a passport visa if such visa was necessary, while proceeding to take up or to return to his post, or when returning to his own country, the third State shall accord him inviolability and such other immunities as may be required to ensure his transit or return. The same shall apply in the case of any members of his family enjoying privileges or immunities who are accompanying the diplomatic agent, or travelling separately to join him or to return to their country.

2. In circumstances similar to those specified in paragraph 1 of this article, third States shall not hinder the passage of members of the administrative and technical or service staff of a mission, and of members of their families, through their territories

3. Third States shall accord to official correspondence and other official communications in transit, including messages in code or cipher, the same freedom and protection as is accorded by the receiving State. They shall accord to diplomatic couriers, who have been granted a passport visa if such visa was necessary, and diplomatic bags in transit, the same inviolability and protection as the receiving State is bound to accord.

4. The obligations of third States under paragraphs 1, 2 and 3 of this article shall also apply to the persons mentioned respectively in those paragraphs, and to official communications and diplomatic bags, whose presence in the territory of the third State is due to force majeure.

Article 41

1. Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of that State.

2. All official business with the receiving State entrusted to the mission by the sending State shall be conducted with or through the Ministry for Foreign Affairs of the receiving State or such other ministry as may be agreed.

3. The premises of the mission must not be used in any manner incompatible with the functions of the mission as laid down in the present Convention or by other rules of general international law or byany special agreements in force between the sending and the receiving State.

Article 42

169

A diplomatic agent shall not in the receiving State practise for personal profit any professional or commercial activity.

Article 43

The function of a diplomatic agent comes to an end, inter alia:

(a) On notification by the sending State to the receiving State that the function of the diplomatic agent has come to an end;

(b) On notification by the receiving State to the sending State that, in accordance with paragraph 2 of article 9, it refuses to recognize the diplomatic agent as a member of the mission.

Article 44

The receiving State must, even in case of armed conflict, grant facilities in order to enable persons enjoying privileges and immunities, other than nationals of the receiving State, and members of the families of such persons irrespective of their nationality, to leave at the earliest possible moment. It must, in particular, in case of need, place at their disposal the necessary means of transport for themselves and their property.

Article 45

If diplomatic relations are broken off between two States, or if a mission is permanently or temporarily recalled:

(a) The receiving State must, even in case of armed conflict, respect and protect the premises of the mission, together with its property and archives;

(b) The sending State may entrust the custody of the premises of the mission, together with its property and archives, to a third State acceptable to the receiving State;

(c) The sending State may entrust the protection of its interests and those of its nationals to a third

State acceptable to the receiving State.

Article 46

A sending State may with the prior consent of a receiving State, and at the request of a third State not represented in the receiving State, undertake the temporary protection of the interests of the third

State and of its nationals.

Article 47

1. In the application of the provisions of the present Convention, the receiving State shall not discriminate as between States.

2. However, discrimination shall not be regarded as taking place:

170

(a) Where the receiving State applies any of the provisions of the present Convention restrictively because of a restrictive application of that provision to its mission in the sending State;

(b) Where by custom or agreement States extend to each other more favourable treatment than is required by the provisions of the present Convention.

Article 48

The present Convention shall be open for signature by all States Members of the United Nations or of any of the specialized agencies Parties to the Statute of the International Court of Justice, and by any other State invited by the General Assembly of the United Nations to become a Party to the Convention, as follows: until 31 October 1961 at the Federal Ministry for Foreign Affairs of Austria and subsequently, until 31 March 1962, at the United Nations Headquarters in New York.

Article 49

The present Convention is subject to ratification. The instruments of ratification shall be deposited with the Secretary-General of the United Nations.

Article 50

The present Convention shall remain open for accession by any State belonging to any of the four categories mentioned in article 48. The instruments of accession shall be deposited with the Secretary- General of the United Nations.

Article 51

1. The present Convention shall enter into force on the thirtieth day following the date of deposit of the twenty-second instrument of ratification or accession with the Secretary-General of the United Nations.

2. For each State ratifying or acceding to the Convention after the deposit of the twenty-second instrument of ratification or accession, the Convention shall enter into force on the thirtieth day after deposit by such State of its instrument of ratification or accession.

Article 52

The Secretary-General of the United Nations shall inform all States belonging to any of the four categories mentioned in article 48:

(a) Of signatures to the present Convention and of the deposit of instruments of ratification or accession, in accordance with articles 48, 49 and 50;

(b) Of the date on which the present Convention will enter into force, in accordance with article 51.

Article 53

The original of the present Convention, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations, who shall send certified copies thereof to all States belonging to any of the four categories mentioned in article 48.

171

Vienna Convention on Consular Relations(April 24, 1963)

Article 1

Definitions

1 .For the purposes of the present Convention, the follow in g expressions shall have the meanings Here under assigned to them:

(a ) “consular post” means any consulate-general, consulate, vice-consulate or consular agency;

(b ) “consular district” means the area assigned to a consular post for the exercise of consular functions;

(c) “head of consular post” means the person charged with the duty of acting in that capacity;

(d ) “consular officer” means any person, including the head of a consular post, entrusted in that capacity with the exercise of consular functions;

(e) “consular employee” means any person employed in the administrative or technical service of a consular post;

(f) “member of the service staff” means any person employed in the domestic service of a consular post;

(g ) “members of the consular post” means consular officers, consular employees and members of the service staff;

(h ) “members of the consular staff” means consular officers, other than the head of a consular post, consular employees and members of the service staff;

(i) “member of the private staff” means a person who is employed exclusively in the private service of a member of the consular post;

(j) “consular premises” means the buildings or parts of buildings and the land ancillary thereto, irrespective of ownership, used exclusively for the purposes of the consular post;

(k) “consular archives” includes all the papers, documents, correspondence, books, films, tapes and registers of the consular post, together with the ciphers and codes, the card-indexes and any article of furniture intended for their protection or safe keeping.

2 .Consular officers are of two categories, namely career consular officers and honorary consular officers. The provisions of Chapter II of the present Convention apply to consular posts headed by career consular officers, the provisions of Chapter III govern consular posts headed by honorary consular officers.

3 .The particular status of members of the consular posts who are nationals or permanent residents of the receiving State is governed by article 71 of the present Convention.

Article 2

172

1 .The establishment of consular relations between States takes place by mutual consent.

2. The consent given to the establishment of diplomatic relations between two States implies, unless otherwise stated, consent to the establishment of consular relations.

3 .The severance of diplomatic relations shall not ipso facto involve the s severance of consular relations.

Article 3

Consular functions are exercised by consular posts. They are also exercised by diplomatic

missions in accordance with the provisions of the present Convention.

Article 4

1 .A consular post may be established in the territory of the receiving State only with that State’s consent.

2 .The seat of the consular post, its classification and the consular district shall be established by the sending State and shall be subject to the approval of the receiving State.

3 .Subsequent changes in the seat of the consular post, its classification or the consular district may be made by the sending State only with the consent of the receiving State.

4 .The consent of the receiving State shall also be required if a consulate-general or a consulate

desires to open a vice-consulate or a consular agency in a locality o other than that in which it is itself established.

5 .The prior express consent of the receiving State shall also be required for the open ing of an office forming part of an existing consular post elsewhere ere than at the seat thereof.

Article 5

Consular functions consist in:

(a ) protecting in the receiving State the interests of the sending State and of its nationals, both individuals and bodies corporate, within the limits permitted by internationallaw;

(b ) furthering the development of commercial, economic, cultural and scientific relations between the sending g State and the receiving State and otherwise promoting friendly relations between them in accordance with the provisions of the present Convention;

(c) ascertaining by all lawful means conditions and developments in the commercial, economic,

cultural and scientific life of the receiving State, reporting thereon to the Government of the sending State and giving information to persons interested;

(d ) issuing passports and travel documents to nationals of the sending State, and visas or appropriate documents to persons wishing to travel to the sending State;

173

(e) helping and assisting nationals, both individuals and bodies corporate, of the sending State;

(f) acting as notary and civil registrar and in capacities of a similar kind, and performing certain functions of an administrative nature, provided that there is nothing contrary thereto in the laws and regulations of the receiving State;

(g ) safeguarding the interests of nationals, both individuals and bodies corporate, of the sending

States in cases of succession mortis causa in the territory of the receiving State, in accordance with the laws and regulations of the receiving State;

(h ) safeguarding, within the limits imposed by the laws and regulations of the receiving State, the interests of minors and other persons lacking full capacity wh o are nationals of the sending State, particularly where any guardianship or trusteeship is required with respect to such persons;

(i) subject to the practices and procedures obtaining in the receiving State, representing or arranging appropriate representation for nationals of the sending State before the tribunals and other authorities of the receiving State, for the purpose of obtaining, in accordance with the laws and regulations of the receiving State, provisional measures for the preservation of the rights and interests of these nationals, where, because of absence or any other reason, such nationals are unable at the proper time to assume the defence of their rights and interests;

(j) transmitting judicial and extrajudicial documents or executing lettersrogatory or commissions to take evidence for the courts of the sending State in accordance with in international agreements in force or, in the absence of such international agreements, in any other manner compatible with the laws and regulations of the receiving State;

(k) exercising rights of supervision and inspection provided for in the laws and regulations of the sending State in respect of vessels having the nationality of the sending State, and of aircraft registered in that State, and in respect of their crews ;

(l) extending assistance to vessels and aircraft mentioned in subparagraph (k) of this article, and to their crews, taking statements regarding the voyage of a vessel, examining and stamping the ship’s papers , and, without prejudice to the powers of the authorities of the receiving State, conducting investigations into any incidents which occurred during the voyage, and settling disputes of any kind between the master, the officers and the seamen insofar as this may be authorized by the laws and regulations of the sending State;

(m ) performing any other functions entrusted to a consular post by the sending State which are not prohibited by the laws and regulations of the receiving State or to which no o objection is taken by the receiving State or which are referred to in the international agreements in force between the sending State and the receiving State.

Article 6

A consular officer may, in special circumstances, with the consent of the receiving State, exercise his functions outside his consular district.

174

Article 7

The sending State may, after notifying the States concerned, entrust a consular post established in a particular State with the exercise of consular functions in another State, unless there is express objection by one of the States concerned.

Article 8

Upon appropriate notification to the receiving State, a consular post of the sending State may, unless the receiving State objects, exercise consular functions in the receiving State on behalf of a third State.

Article 9

1 .Heads of consular posts are divided into four classes, namely

(a ) consuls-general;

(b ) consuls;

(c) vice-consuls;

(d ) consular agents.

2 .Paragraph 1 of this article in no way restricts the right of any of the Contracting Parties to fix the designation of consular officers other than the heads of consular posts.

Article 10

1 .Heads of consular posts are appointed by the sending State and are admitted to the exercise of their functions by the receiving State.

2 .Subject to the provisions of the present Convention , the formalities for the appointment and for the admission of the head o f a consular post are determined by the laws, regulations an d usages of the sending State and of the receiving State respectively.

Article 11

1 .The head of a consular post shall be provided by the sending State with a document, in the form of a commission or similar instrument, made out for each appointment, certifying his capacity and showing, as a general rule, his full name, his category and class, the consular district and the seat of the consular post.

2 .The sending State shall transmit the commission or similar instrument through the diplomatic or other appropriate channel to the Government of the State in whose territory the head of a consular post is to exercise his functions.

3 .If the receiving State agrees, the sending State may, instead of a commission or similar instrument, send to the receiving State a notification containing the particulars required by paragraph 1 of this article.

Article 12

175

1 .The head of a consular post is admitted to the exercise of his functions by an authorization from the receiving State termed an exequatur, whatever the form of this authorization.

2 .A State which refused to grant an exequatur is not obliged to give to the sending State reasons for such refusal.

3 .Subject to the provisions of articles 13 and 15, the head of a consular post shall not enter upon his duties until he has received an exequatur.

Article 13

Pending delivery of the exequatur, the head of a consular post may be admitted on a provisional basis to the exercise of his functions. In that case, the provisions o f the present Convention shall apply.

Article 14

As soon as the head of a consular post is admitted even provisionally to the exercise of his functions, the receiving State shall immediately notify the competent authorities of the consular district.

It shall also ensure that the necessary measures are taken to enable the head of a consular post to carry out the duties of his office and to have the benefit of the provisions of the present Convention.

Article 15

1 .If the head of a consular post is unable to carry out his functions or the position of head of consular post is vacant, an acting head of post may act provisionally as head of the consular post.

2 .The full name of the acting head of post shall be notified either by the diplomatic mission of the sending State or, if that State has no such mission in the receiving State, b y the head of the consular post, or, if he is unable to do so, by any competent authority of the s ending State, to the Ministry for Foreign Affairs of the receiving State or to the authority designated by that Ministry. A s a general rule, this notification shall be given in advance. The receiving State may make the admission as actin g head of post of a person who is neither a diplomatic agent nor a consular officer of the sending State in the receiving State conditional on its consent.

3 .The competent authorities of the receiving State shall afford assistance and protection to the acting head of post. While he is in charge of the post, the provisions of the present Convention shall apply to him on the same basis as to the head of the consular post concerned. The receiving State shall not, however, be obliged to grant to an acting head of post any facility, privilege or immunity which the head of the consular post enjoys only subject to conditions not fulfilled by the acting head of post.

176

4 .When, in the circumstances referred to in paragraph 1 of this article, a member o f the diplomatic staff of the diplomatic mission of the sending State in the receiving State is designated by the sending State as an acting head of post, he shall, if the receiving State does not object thereto, continue to enjoy diplomatic privileges and immunities.

Article 16

1 .Heads of consular posts shall rank in each class according to the date of the gran t of the exequatur.

2 .If, however, the head of a consular post before obtaining the exequatur is admitted to the exercise of his functions provisionally, h is precedence shall be determined according to the date of the provisional admission; this precedence shall be maintained after the granting of the exequatur.

3 .The order of precedence as between two or more head s of consular posts w ho obtained the exequatur or provisional admission on the same date shall be determined according to the dates on which their commissions or similar instruments or the notifications referred to in paragraph 3 of article 11 were presented to the receiving State.

4 .Acting heads of posts shall rank after all heads of consular posts and, as between themselves, they shall rank according to the dates on which they assumed their functions as acting heads of posts as indicated in the notifications given under paragraph 2 of article 15 .

5 .Honorary consular officers who are heads of consular posts shall rank in each class after career heads of consular posts, in the order and according to the rules laid down in the foregoing paragraphs .

6 .Heads of consular posts s hall have precedence over consular officers not having that status.

Article 17

1 .In a State where the sending State has no diplomatic mission and is not represented by a diplomatic mission of a third State, a consular officer may, with the consent of the receiving State, and without affecting his consular status, be authorized to perform diplomatic acts. The performance of such acts by a consular officer shall not confer upon him any right to claim diplomatic privileges and immunities.

2 .A consular officer may, after notification addressed to the receiving State, act as representative of the sending State to any intergovernmental organization. When so acting, he shall be entitled to enjoy any privileges and immunities accorded to such a representative by customary international law or by international agreements; however, in respect of the performance by him of any consular function, he shall not be entitled to any greater immunity from jurisdiction than that to which a consular officer is entitled under the present Convention.

Article 18

Two or more States may, with the consent of the receiving State, appoint the same person as a consular officer in that State.

Article 19

177

1 .Subject to the provisions of articles 20, 22 and 23, the sending State may freely appoint the members of the consular staff.

2 .The full name, category an d class of all consular officers, other than the head of a consular post, shall be notified by the sending State to the receiving State in sufficient time for the receiving State, if it so wishes, to exercise its rights under paragraph 3 of article 23.

3 .The sending State may, if required by its laws and regulations, request the receiving State to grant an exequatur to a consular officer other than the head of a consular post.

4 .The receiving State may, if required by its laws and regulations, g rant an exequatur to a consular officer other than the head of a consular post.

Article 20

In the absence of an express agreement as to the size of the consular staff, the receiving State may require that the size of the staff be kept within limits considered by it to be reasonable and normal, having regard to circumstances and conditions in the consular district and to the needs of the particular consular post.

Article 21

The order of precedence as between the consular officers of a consular post an d any change thereof shall be notified by the diplomatic mission of the sending State or, if that State has no such mission n in the receiving State, by the head of the consular post, to the Ministry for Foreign n Affairs of the receiving State or to the authority designated by that Ministry.

Article 22

1 .Consular officers should, in principle, have the nationality of the sending State.

2 .Consular officers may not be appointed from among persons having the n nationality of the receiving State except with the express consent of that State which may be withdrawn at any time.

3 .The receiving State may reserve the same right with regard to nationals of a third State who are not also nationals of the sending State.

Article 23

1 .The receiving State may at any time notify the sending State that a consular officer is persona non grata or that any other member of the e consular staff is not acceptable. In that event, the sending State shall, as the case may be, either recall the person concerned or terminate his functions with the consular post.

2 .If the sending State refuses or fails within a reasonable time to carry out its obligations under paragraph 1 of this article, the receiving State may, as the case may be, either withdraw the exequatur from the person concerned or cease to consider him as a member of the consular staff.

178

3 .A person appointed as a member of a consular post may be declared unacceptable before arriving in the territory of the receiving State or, if already in the receiving State, before entering on his duties with the consular post. In any such case, the sending State shall withdraw his appointment.

4 .In the cases mentioned in paragraphs 1 and 3 of this article, the receiving State is not obliged to give to the sending State reasons for its decision.

Article 24

1 .The Ministry for Foreign Affairs of the receiving State or the authority designated by that Ministry shall be notified of:

(a ) the appointment of members of a consular post, their arrival after appointment to the consular post, their final departure or the termination of their functions and any other changes affecting their status that may occur in the course of their service with the consular post;

(b ) the arrival and final departure of a person belonging to the family of a member of a consular post forming part of his household and, where appropriate, the fact that a person becomes or ceases to be such a member of the family;

(c) the arrival and final departure of members of the private staff and, where appropriate, the termination of their service as such;

(d ) the engagement and discharge of persons resident in the receiving State as members of a consular post or as members of the private staff entitled to privileges and immunities.

2 .When possible, prior notification of arrival and final departure shall also be given.

Article 25

Thefunctions of a member of a consular post shall come to an end, inter alia:

(a ) on notification by the sending State to the receiving State that his functions have come to an end;

(b ) on withdrawal of the exequatur;

(c) on notification by the receiving State to the sending State that the receiving State has ceased to consider him as a member of the consular staff.

Article 26

The receiving State shall, even in case of armed conflict, grant to members of the consular post and members of the private staff, other than nationals of the receiving State, and to members of their families forming part of their households irrespective of nationality, the necessary time and facilities to enable them to prepare their departure and to leave at the earliest possible moment after the termination of the functions of the members concerned. In particular, it shall, in case of need, place at their disposal the necessary means of transport for themselves and their property other than property acquired in the receiving State the export of which is prohibited at the time of departure.

179

Article 27

1 .In the event of the severance of consular relations between two States:

(a ) the receiving State shall, even in case of armed conflict, respect and protect the consular premises, together with the property of the consular post and the consular archives;

(b ) the sending State may entrust the custody of the consular premises, together with the property contained therein and the consular archives, to a third State acceptable to the receiving State;

(c) the sending State may entrust the protection of its interests and those of its nationals to a third

2 .In the event of the temporary or permanent closure of a consular post, the provisions of subparagraph (a) of paragraph 1 of this article shall apply. In addition,

(a ) if the s ending State, although not represented in the receiving State by a diplomatic mission, has another consular post in the territory of that State, that consular post may be entrusted with the custody of the premises of the consular post which has been closed, together with the property contained therein and the consular archives, and, with the consent of the receiving State, with the exercise of consular functions in the district of that consular post; or

(b ) if the sending State has no diplomatic mission and no other consular post in the receiving State, the provisions of subparagraphs (b) and (c) of paragraph 1 of this article sh all apply.

Article 28

The receiving State shall accord full facilities for the performance of the functions of the consular post.

Article 29

1 .The sending State shall have the right to the u se of its national flag and coat-of-arms in the receiving State in accordance with the provisions of this article.

2 .The national flag of the sending State may be flow n and its coat-of-arms displayed on the building occupied by the consular post and at the entrance door thereof, on the residence of the head of the consular post and on his means of trans port when used on official business.

3 .In the exercise of the right accorded by this article regard shall be had to the laws, regulations and usages of the receiving State.

Article 30

1 .The receiving State shall either facilitate the acquisition on its territory, in accordance with its laws and regulations, by the sending State of premises necessary for its consular post or assist the latter in obtaining accommodation in some other way.

180

2 .It shall also, where necessary, assist the consular post in obtaining suitable accommodation for its members.

Article 31

1 .Consular premises shall be inviolable to the extent provided in this article.

2 .The authorities of the receiving State shall not enter that part of the consular premises which is used exclusively for the purpose of the work of the consular post except with the consent of the head of the consular post or of his designee or of the head of the diplomatic mission of the sending State. The consent of the head of the consular post may, however, be assumed in case of fire or other disaster requiring prompt protective action.

3 .Subject to the provisions of paragraph 2 of this article, the receiving State is under a special duty to take all appropriate steps to protect the consular premises against any intrusion or damage and to prevent any disturbance of the peace of the consular post or impairment of its dignity.

4 .The consular premises, their furnishings, the property of the consular post and its means of transport shall be immune from any form of requisition for purposes of national defence or public utility.

If expropriation is necessary for such purposes, all possible steps shall be taken to avoid impeding theperformance of consular functions, and prompt, adequate and effective compensation shall be paid to the sending State.

Article 32

1 .Consular premises and the residence of the career head of consular post of which the sending State or any person acting on its behalf is the owner or lessee shall be exempt from all national, regional or municipal dues and taxes whatsoever, other than such as represent payment for specific services rendered.

2 .The exemption from taxation referred to paragraph 1 of this article shall not apply to such dues and taxes if, under the law of the receiving State, they are payable by the p ersonw ho contracted with the sending State or with the person acting on its behalf.

Article 33

The consular archives and documents shall be inviolable at all times and wherever they may be.

Article 34

Subject to its laws and regulations concerning zones entry into which is prohibited or regulated for reasons of nation al security, the receiving State shall ensure freedom of movement and travel in its territory to all members of the consular post.

Article 35

1 .The receiving State shall permit and protect freedom of communication on the part of the consular post for all official purposes. In communicating with the Government, the diplomatic missions and other consular posts , wherever situated, of the sending State, the

181

consular post may employ all appropriate means, including diplomatic or consular couriers, diplomatic or consular bags and messages in code or cipher. However, the consular post may install and use a wireless transmitter only with the consent of the receiving State.

2 .The official correspondence of the consular post shall be inviolable. Official correspondencemeans all correspondence relating to the consular post and its functions.

3 .The consular bag shall be neither opened nor detained. Nevertheless, if the competent

authorities of the receiving State have serious reason to believe that the bag contains something other than the correspondence, documents or articles referred to in paragraph 4 of this article, they may request that the bag be opened in their presence by an authorized representative of the sending State. If this request is refused by the authorities of the sending State, the bag shall be returned to its place of origin.

4 .The packages constituting the consular bag shall bear visible external marks of their character and may contain only official correspondence and documents or articles intended exclusively for official use.

5 .The consular courier shall be provided with an official document indicating his status and the number of packages constituting the consular bag. Except with the consent of the receiving State he shall be neither a national of the receiving State, nor, unless he is a national of the s ending State, a permanent resident of the receiving State. In the performance of his functions he shall be protected by

the receiving State. He shall enjoy personal inviolability and shall not be liable to any form of arrest or detention.

6 .The sending State, its diplomatic miss ion s and its consular posts may designate consular couriers ad hoc. In such cases the provisions of paragraph 5 of this article shall also apply except that the immunities therein mentioned shall cease to apply when such a courier has delivered to the consignee the consular bag in his charge.

7 .A consular bag may be entrusted to the captain of a ship or of a commercial aircraft scheduled to land at an authorized port of entry. He shall be provided with an official document indicating the number of packages constituting the bag, but he shall not be considered to be a consular courier. By arrangement with the appropriate local authorities, the consular post may send one of its members to take possession of the bag directly and freely from the captain of the ship or o f the aircraft.

Article 36

1 .With a view to facilitating the exercise of consular functions relating to nationals of the sending State:

(a ) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;

(b ) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in

182

prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph;

(c) consular officers shall have the right to visit a national of the s ending State w ho is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation.

They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.

2 .The rights referred to in paragraph 1 of this article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this article are intended.

Article 37

If the relevant information is available to the competent authorities of the receiving State, such authorities shall have the duty:

(a ) in the case of the death of a national of the sending State, to inform without delay the consular post in whose district the death occurred;

(b ) to inform the competent consular post without delay of any case where the appointment of a guardian or trustee appears to be in the interests of a minor or other perso n lacking full capacity who is a national of the s ending State. The giving of this information shall, however, be without prejudice to the operation of the laws and regulations of the receiving State concerning such appointments;

(c) if a vessel, having the nationality of the s ending State, is wrecked or runs aground in the territorial sea or internal waters of the receiving State, or if an aircraft registered in the sending State suffers an accident on the territory of the receiving State, to inform without delay the consular post nearest to the scene of the occurrence.

Article 38

In the exercise of their functions, consular officers may address

(a ) the competent local authorities of their consular district;

(b ) the competent central authorities of the receiving State if and to the extent that this is allowed by the law s, regulations and usages of the receiving State or by the relev ant international agreements.

Article 39

1 .The consular post may levy in the territory of the receiving State the fees and charges provided by the laws and regulations of the s ending State for consular acts.

183

2 .The sums collected in the form of the fees and charges referred to in paragraph 1 of this article, and the receipts for such fees and charges, shall be exempt from all dues and taxes in the receiving State.

Article 40

The receiving State shall treat consular officers with du e respect and shall take all appropriate steps to prevent any attack on their person, freedom or dignity.

Article 41

1 .Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority.

2 .Except in the case specified in paragraph 1 of this article, consular officers shall not be committed to prison or be liable to any other form of restriction on their personal freedom save in execution of a judicial decision of final effect.

3 .If criminal proceedings are instituted against a consular officer, he must appear before the competent authorities. Nevertheless, the proceedings shall be conducted with the respect due to him by

reason of his official position and, except in the case specified in paragraph 1 of this article, in a manner which will hamper the exercise of consular functions as little as possible. When, in the circumstances mentioned in paragraph 1 of this article, it has become necessary to detain a consular officer, the proceedings against him shall be instituted with the minimum of delay.

Article 42

In the event of the arrest or detention, pending trial, of a member of the consular staff, or of criminal proceedings being instituted against him, the receiving State shall promptly notify the head of the consular post. Should the latter be himself the object of any such measure, the receiving State shall notify the sending State through the diplomatic channel.

Article 43

1 .Consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions.

2 .The provisions of paragraph 1 of this article shall not, however, apply in respect of a civil action either

(a ) arising out of a contract concluded by a consular officer or a consular employee in which he did not contract expressly or impliedly as an agent of the sending State; or

(b ) by a third party for damage arising from an accident in the receiving State caused by a vehicle, vessel or aircraft.

Article 44

1 .Members of a consular post may be called upon to attend as witnesses in the course of judicial or administrative proceedings . A consular employee or a member of the service staff

184

shall not, except in the cases mentioned in paragraph 3 of this article, decline to give evidence. If a consular officer should decline to do so, no coercive measure or penalty may be applied to him.

2 .The authority requiring the evidence of a consular officer shall avoid interference with the performance of his functions. It may, when possible, take such evidence at his residence or at the consular post or accept a statement from him in writing.

3 .Members of a consular post are under no obligation to give evidence concerning matters connected with the exercise of their functions or to produce official correspondence and documents relating thereto. They are also entitled to decline to give evidence as expert witnesses with regard to the law of the sending State.

Article 45

1 .The sending State may waive, with regard to a member of the consular post, any of the privileges and immunities provided for in articles 41, 43 and 44.

2 .The waiver shall in all cases be express, except as provided in paragraph 3 of this article, and shall be communicated to the receiving State in writing.

3 .The initiation of proceedings by a consular officer or a consular employee in a matter where he might enjoy immunity from jurisdiction under article 43 shall preclude him from invoking immunity from jurisdiction in respect of any counterclaim directly connected with the principal claim.

4 .The waiver o f immunity from jurisdiction for the purposes of civil or administrative proceedings shall not be deemed to imply the waiver of immunity from the measures of execution resulting from the judicial decision; in respect of such measures, a separate waiver shall be necessary.

Article 46

1 .Consular officers and consular employees an d members of their families forming part of their households shall be exempt from all obligations under the laws and regulations of the receiving State in regard to the registration of aliens and residence permits.

2 .The provisions of paragraph 1 of this article shall not, however, apply to any consular employee who is not a permanent employee of the sending State or who carries on any private gainful occupation in the receiving State or to any member of the family of any such employee.

Article 47

1 .Members of the consular post shall, with respect to services rendered for the sending State, be exempt from any obligations in regard to work permits imposed by the laws and regulations of the receiving State concerning the employment of foreign labour.

2 .Members of the private staff of consular officers and of consular employees shall, if they do not carry on any other gainful occupation in the receiving State, be exempt from the obligation s referred to in paragraph 1 of this article.

Article 48

185

1 .Subject to the provisions of paragraph 3 of this article, members of the consular post with respect to services rendered by them for the sending State, and members of their families forming part of their households, shall be exempt from social security provisions which may be in force in the receiving State.

2 .The exemption provided for in paragraph 1 of this article shall apply also to members of the private staff who are in the sole employ o f members of the consular post, on condition:

(a ) that they are not nationals of or permanently resident in the receiving State; and

(b ) that they are covered by the social security provisions which are in force in the sending State or a third State.

3 .Members of the consular post who employ persons to whom the exemption provided for in paragraph 2 of this article does not apply shall observe the obligations which the social security provisions of the receiving State impose upon employers.

4 .The exemption provided for in paragraphs 1 an d 2 of this article shall not preclude voluntaryparticipation in the social security system of the receiving State, provided that such participation is permitted by that State.

Article 49

1 .Consular officers and consular employees an d members of their families forming part of their households shall be exempt from all dues and taxes, personal or real, national, regional or municipal, except:

(a ) indirect taxes of a kind which are normally incorporated in the price of goods or services;

(b ) dues or taxes on private immovable property situated in the territory of the receiving State, subject to the provisions of article 32;

(c) estate, succession or inheritance duties, and duties on transfers, levied by the receiving State, subject to the provisions of paragraph (b) of article 51;

(d ) dues and taxes on private income, including capital gain s, having its source in the receiving State and capital taxes relating to investments made in commercial or financial undertakings in the receiving State;

(e) charges levied for specific services rendered;

(f) registration, court or record fees, mortgage dues and stamp duties, subject to the provisions of article 32 .

2 .Members of the service staff shall be exempt from dues and taxes on the wages which they receive for their services.

3 .Members of the consular post who employ persons whose wages or s alaries are not exempt from income tax in the receiving State shall observe the obligations which the laws and regulations of that State impose upon employers concerning the levying of income tax.

Article 50

186

1 .The receiving State shall, in accordance with such laws and regulations as it may adopt, permit entry of and grant exemption from all customs duties, taxes, and related charges other than charges for storage, cartage and similar services, on:

(a ) articles for the official use of the consular post;

(b ) articles for the personal use of a consular officer or members of his family forming part of his household, including articles intended for his establishment. The articles intended for consumption shallnot exceed the quantities necessary for direct utilization by the persons concerned.

2 .Consular employees shall enjoy the privileges and exemptions specified in paragraph 1 of this article in respect of articles imported at the time of first installation.

3 .Personal baggage accompanying consular officers and members of their families forming part of their households shall be exempt from inspection. It may be inspected only if there is serious reason to believe that it contains articles other than those referred to in subparagraph (b) of paragraph 1 of this article, o r articles the import or export of which is prohibited by the laws and regulations of the receiving State or which are subject to its quarantine laws and regulations. Such inspection shall be carried out in the presence of the consular officer or member of his family concerned.

Article 51

In the event of the death of a member of the consular post or of a member of his family forming part of his household, the receiving State:

(a ) shall permit the export of the movable property of the deceased, with the exception of any such property acquired in the receiving State the export of which was prohibited at the time o f his death;

(b ) shall not levy national, region al or municipal estate, succession or inheritance duties, and duties on transfers, on movable property the presence of which in the receiving State was due solely to the presence in that State of the deceased as a member of the consular post or as a member of the family of a member of the consular post.

Article 52

T he receiving State shall exempt members o f the consular post and members o f their families forming part of their households from all personal services, from all public service of any kind whatsoever, and from military obligations such as those connected with requisitioning, military contributions and billeting.

Article 53

1 .Every member of the consular post shall enjoy the privileges and immunities provided in the present Convention from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when he enters on his duties with the consular post.

2 .Members of the family of a member of the consular post forming part of his household and

187

members of his private staff shall receive the privileges and immunities provided in th e present Convention from the date from which he enjoys privileges and immunities in accordance with paragraph 1 of this article or from the date of their entry into the territory of the receiving State or from the date of their becoming a member of such family or private staff, whichever is the latest.

3 .When the functions of a member of the consular post have come to an end, his privileges and immunities and those of a member of his family forming part of his household or a member of his private staff shall normally cease at the moment t when the person concerned leaves the receiving State or on the expiry of a reasonable period in which to do so, whichever is the s sooner, but shall subsist until that time, even in case of armed conflict. In the case of the persons referred to in paragraph 2 o f this article, their privileges and immunities shall come to an end when they cease to belong to the household or to be in the service of a member of the consular post provided, however, that if such persons intend leaving the receiving State within a reasonable period thereafter, their privileges and immunities shall subsist until the time of their departure.

4 .However, with respect to acts performed by a consular officer or a consular employee in the exercise of his functions, immunity from jurisdiction shall continue to subsist without limitation of time.

5 .In the event of the death of a member of the consular post, the members of his family forming part of his household shall continue to enjoy the privileges and immunities accorded to them until they leave the receiving State or until the e expiry o f a reasonable p period enabling them to do so, whichever is the sooner.

Article 54

1 .If a consular officer passes through or is in the territory of a third State, which has granted him a visaif a visa was necessary, w while proceeding to take up or return to his post or when returning to the sending g State, the third State shall accord to him all immunities provided for by the other articles of the present t Convention as may be required to ensure his transit or return. The same shall apply in the case of any member of his family forming part of his household enjoying such p privileges and immunities who are accompanying the consular officer or travelling separately to join him or to return to the sending State.

2 .In circumstances similar to those specified in paragraph 1 of this article, third States shall not hinder the transit through their territory of other members of the cons ular p ost or of members of their families forming part of their households.

3 .Third States shall accord to o official correspondence and to other official communications in transit, including messages in code or cipher, the same freedom and protection as the receiving g State is bound to accord under the present Convention. They shall accord to consular couriers who have been granted a visa, if a visa was necessary, and to consular bags in transit, the same inviolability and protection as the receiving State is bound to accord under the present Convention.

4 .The obligations of third States under paragraphs 1, 2 and 3 of this article shall also apply to the persons mentioned respectively in those paragraphs, and to official communication s and to consular bags, whose presence in the territory of the third State is due to force majeure.

188

Article 55

1 .Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of the State.

2 .The consular premises shall not be used in any manner incompatible with the exercise of consular functions.

3 .The provisions of paragraph 2 of this article shall not exclude the possibility o foffices of other institutions or agencies being installed in part of the building in which the consular premises are situated, provided that the p remises assigned to them are separate from those used by the consular post.

In that event, the said offices s hall not, for the purposes of the present Convention, be considered to form part of the consular premises.

Article 56

Members of the consular post shall comply with an y requirements imposed by the laws and regulations of the receiving State, in respect of insurance against third party risks arising from the use of any vehicle, vessel or aircraft.

Article 57

1 .Career consular officers shall not carry on for personal profit any professional or commercial activity in the receiving State.

2 .Privileges and immunities provided in this chapter shall not be accorded :

(a ) to consular employees or to members of the service staff who carry on any private gainful occupation in the receiving State;

(b ) to members of the family of a person referred to in subparagraph (a) of this paragraph or to members of his private staff;

(c) to members of the family of a member of a consular post who themselves carry on any private gainful occupation in the receiving State.

Article 58

1 .Articles 28, 29, 30, 34, 35, 36, 37, 38 and 39, paragraph 3 of article 54 and paragraphs 2 and 3 of article 55 s hall apply to consular posts headed by an honorary consular officer. In addition, the facilities, privileges and immunities of such consular posts shall be governed by articles 59, 60, 61 and 62.

2 .Articles 42 and 43, paragraph 3 of article 44 , articles 45 and 53 and paragraph 1 of article 55 shall apply to honorary consular officers. In addition, the facilities, privileges and immunities of such consular officers shall be governed by articles 63, 64, 65, 66 an d 67.

3 .Privileges and immunities provided in the present Convention shall not be accorded to members of the family of an honorary consular officer or of a consular employee employed at a consular post headed by an honorary consular officer.

189

4 .The exchange of consular bags between two consular posts headed by honorary consular officers in different States shall not be allowed without the consent of the two receiving States concerned.

Article 59

T he receiving State shall take such steps as may be necessary to protect the consular premises of a consular post headed by an honorary consular officer against any intrusion or damage and to prevent any disturbance of the peace of the consular post or impairment of its dignity.

Article 60

1 .Consular premises of a consular post headed by an honorary consular officer of which the sending State is the owner or lessee shall be exempt from all national, regional ormunicipal dues andtaxes whatsoever, other than such as represent payment for specific services rendered.

2 .The exemption from taxation referred to in paragraph l of this article shall no t apply to such dues and taxes if, under the laws and regulations of the receiving State, they are payable by the person who contracted with the sending State.

Article 61

T he consular archives and documents of a consular post headed by an honorary consular officer shall be inviolable at all times and wherever they may be, provided that they are kept separate from other papers and documents and, in particular, from the private correspondence of the head of a consular post and of any person working with him, and from the materials, books or documents relating to their profession or trade.

Article 62

T he receiving State shall, in accordance with such laws and regulations as it may adopt, permit entry of, and grant exemption from all customs duties, taxes, and related charges other than charges for storage, cartage and similar services on the following articles, provided that they are for the official use of a consular post headed by an honorary consular officer: coats-of-arms, flags, signboards, seals and stamps, books, official printed matter, office furniture, office equipment and similar articles supplied by or at the instance of the sending State to the consular post.

Article 63

If criminal proceedings are instituted against an honorary consular officer, he must appear before the competent authorities. Nevertheless, the proceedings shall be conducted with the respect due to him by reason of his official position and, except when h e is under arrest or detention, in a manner which will hamper the exercise of consular functions as little as possible. When it has become necessary to detain an honorary consular officer, the proceedings against him shall be instituted with the minimum of delay.

Article 64

T he receiving State is under a duty to accord to an honorary consular officer such protection as may be required by reason of his official position.

190

Article 65

Exemption from registration of aliens and residence permits

Honorary consular officers, with the exception of those who carry on for personal profit any professional or commercial activity in the receiving State, shall be exempt from all obligations under the laws and regulations of the receiving State in regard to the registration of aliens and residence permits.

Article 66

A n honorary consular officer shall be exempt from all dues and taxes on the remuneration an emoluments which he receives from the sending State in respect of the exercise of consular functions.

Article 67

The receiving State shall exempt honorary consular officers from all personal services and from all public services of any kind whatsoever and from military obligations such as those connected with requisitioning, military contribution s and billeting.

Article 68

Each State is free to decide whether it will appoint or receive honorary consular officers.

Article 69

1 .Each State is free to decide whether it will establish or admit consular agencies conducted by consular agents not designated as head s o f consular post by th e sending State.

2 .The conditions under which the consular agencies referred to in paragraph 1 of this article may carry on their activities and the privileges and immunities which may b eenjoyed by the consular agents in charge of them shall be determined by agreement between the s ending State and the receiving State.

Article 70

1 .The provisions of the present Convention apply also, so far as the context permits, to the exercise of consular functions by a diplomatic mission.

2 .The names of members of a diplomatic mission assigned to the consular section or otherwise charged with the exercise of the consular functions of the miss ion shall be notified to the Ministry for Foreign Affairs of the receiving State or to the authority designated by that Ministry.

3 .In the exercise of consular functions a diplomatic mission may address:

(a ) the local authorities of the consular district;

(b ) the central authorities of the receiving State if this is allowed by the laws , regulations and usages of the receiving State or by relevant international agreements.

191

4 .The privileges and immunities of the members of a diplomatic mission referred to in paragraph 2 of this article s hall continue to be governed by the rules of international law concerning diplomatic relations.

Article 71

1 .Except insofar as additional facilities, privileges and immunities may be granted by the

receiving State, consular officers who are nationals of or permanently resident in the receiving Stateshall enjoy only immunity from jurisdiction and personal inviolability in respect of official actsperformed in the exercise of their functions, and the privileges provided in paragraph 3 of article 44. So far as these consular officers are concerned, the receiving State shall likewise be bound by the obligation laid down in article 42. If criminal proceedings are instituted against such a consular officer, the proceedings shall, except when he is under arrest or detention, be conducted in a manner which will hamper the exercise of consular functions as little as possible.

2 .Other members of the consular post who are nationals of or permanently resident in the receiving State and members of their families, as w ell as members of the families of consular officers referred to in paragraph 1 of this article, shall enjoy facilities, privileges and immunities only insofar as these are granted to them by the receiving State. Those members of the families of members of the consular post and those members of the private staff who are themselves nationals of or permanently resident in the receiving State shall likewise enjoy facilities, privileges and immunities only insofar as these are granted to them by the receiving State. The receiving State shall, however, exercise its jurisdiction over those persons in such a way as not to hinder unduly the performance of the functions of the consular post.

Article 72

1 .In the application of the provisions of the present Convention the receiving State shall not discriminate as between States.

2 .However, discrimination shall not be regarded as taking place:

(a ) where the receiving State applies any of the provisions of the present Convention restrictively because of a restrictive application of that provision to its consular posts in the sending State;

(b ) where by custom or agreement States extend to each other more favourable treatment than is required by the provisions of the present Convention.

----------------------------------------------

UNIVERSAL DECLARATION OF HUMAN RIGHTS

Adopted and proclaimed by United Nations General Assembly resolution 217 A(III) of 10 December 1948. .

192

Article 1

All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Article 2

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.

Article 3

Everyone has the right to life, liberty and security of person.

Article 4

No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.

Article 5

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Article 6

Everyone has the right to recognition everywhere as a person before the law.

Article 7

All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

Article 8

Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.

Article 9

No one shall be subjected to arbitrary arrest, detention or exile.

Article 10

Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

193

Article 11

1. Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defense.

2. No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.

Article 12

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attack upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Article 13

1. Everyone has the right to freedom of movement and residence within the borders of each State.

2. Everyone has the right to leave any country, including his own, and to return to his country.

Article 14

1. Everyone has the right to seek and to enjoy in other countries asylum from persecution.

2. This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.

Article 15

1. Everyone has the right to a nationality.

2. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

Article 16

1. Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

2. Marriage shall be entered into only with the free and full consent of the intending spouses.

3. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

Article 17

194

1. Everyone has the right to own property alone as well as in association with others.

2. No one shall be arbitrarily deprived of his property.

Article 18

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

Article 19

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Article 20

1. Everyone has the right to freedom of peaceful assembly and association.

2. No one may be compelled to belong to an association.

Article 21

1. Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.

2. Everyone has the right to equal access to public service in his country.

3. The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

Article 22

Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.

Article 23

1. Everyone has the right to work, to free choice of employment, to just and favorable conditions of work and to protection against unemployment.

2. Everyone, without any discrimination, has the right to equal pay for equal work.

3. Everyone who works has the right to just and favorable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.

4. Everyone has the right to form and to join trade unions for the protection of his interests.

195

Article 24

Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.

Article 25

1. Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

2. Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.

Article 26

1. Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.

2. Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.

3. Parents have a prior right to choose the kind of education that shall be given to their children.

Article 27

1. Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.

2. Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

Article 28

Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.

Article 29

1. Everyone has duties to the community in which alone the free and full development of his personality is possible.

196

2. In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

3. These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.

Article 30

Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.

-----------------------------------------

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS

PART I

Article 1

1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.

3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.

PART II

Article 2

1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant.

3. Each State Party to the present Covenant undertakes:

197

(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;

(c) To ensure that the competent authorities shall enforce such remedies when granted.

Article 3

The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.

Article 4

1 . In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

2. No derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision.

3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.

Article 5

1. Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant.

2. There shall be no restriction upon or derogation from any of the fundamental human rights recognized or existing in any State Party to the present Covenant pursuant to law, conventions, regulations or custom on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent.

PART III

Article 6

198

1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement rendered by a competent court.

3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide.

4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.

5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.

6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.

Article 7

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

Article 8

1. No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited.

2. No one shall be held in servitude.

3. (a) No one shall be required to perform forced or compulsory labour;

(b) Paragraph 3 (a) shall not be held to preclude, in countries where imprisonment with hard labour may be imposed as a punishment for a crime, the performance of hard labour in pursuance of a sentence to such punishment by a competent court;

(c) For the purpose of this paragraph the term "forced or compulsory labor" shall not include:

(i) Any work or service, not referred to in subparagraph (b), normally required of a person who is under detention in consequence of a lawful order of a court, or of a person during conditional release from such detention;

199

(ii) Any service of a military character and, in countries where conscientious objection is recognized, any national service required by law of conscientious objectors;

(iii) Any service exacted in cases of emergency or calamity threatening the life or well-being of the community;

(iv) Any work or service which forms part of normal civil obligations.

Article 9

1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

Article 10

1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

2. (a) Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons;

(b) Accused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication.

3. The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation. Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status.

Article 11

No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation.

200

Article 12

1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.

2. Everyone shall be free to leave any country, including his own.

3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.

4. No one shall be arbitrarily deprived of the right to enter his own country.

Article 13

An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.

Article 14

1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.

2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:

(a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;

(b) To have adequate time and facilities for the preparation of his defense and to communicate with counsel of his own choosing;

(c) To be tried without undue delay;

(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any

201

case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

(e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court;

(g) Not to be compelled to testify against himself or to confess guilt.

4. In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.

5. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.

6. When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.

7. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

Article 15

1 . No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby.

2. Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.

Article 16

Everyone shall have the right to recognition everywhere as a person before the law.

Article 17

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honor and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks.

202

Article 18

1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.

3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

Article 19

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

Article 20

1. Any propaganda for war shall be prohibited by law.

2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

Article 21

The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.

203

Article 22

1. Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.

2. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right.

3. Nothing in this article shall authorize States Parties to the International Labor Organization Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or to apply the law in such a manner as to prejudice, the guarantees provided for in that Convention.

Article 23

1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

2. The right of men and women of marriageable age to marry and to found a family shall be recognized.

3. No marriage shall be entered into without the free and full consent of the intending spouses.

4. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.

Article 24

1. Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.

2. Every child shall be registered immediately after birth and shall have a name.

3. Every child has the right to acquire a nationality.

Article 25 Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:

(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;

(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;

(c) To have access, on general terms of equality, to public service in his country.

204

Article 26

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Article 27

In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.

PART IV

Article 28

1. There shall be established a Human Rights Committee (hereafter referred to in the present Covenant as the Committee). It shall consist of eighteen members and shall carry out the functions hereinafter provided.

2. The Committee shall be composed of nationals of the States Parties to the present Covenant who shall be persons of high moral character and recognized competence in the field of human rights, consideration being given to the usefulness of the participation of some persons having legal experience.

3. The members of the Committee shall be elected and shall serve in their personal capacity.

Article 29

1 . The members of the Committee shall be elected by secret ballot from a list of persons possessing the qualifications prescribed in article 28 and nominated for the purpose by the States Parties to the present Covenant.

2. Each State Party to the present Covenant may nominate not more than two persons. These persons shall be nationals of the nominating State.

3. A person shall be eligible for renomination.

Article 30

1. The initial election shall be held no later than six months after the date of the entry into force of the present Covenant.

2. At least four months before the date of each election to the Committee, other than an election to fill a vacancy declared in accordance with article 34, the Secretary-General of the United Nations shall address a written invitation to the States Parties to the present Covenant to submit their nominations for membership of the Committee within three months.

3. The Secretary-General of the United Nations shall prepare a list in alphabetical order of all the persons thus nominated, with an indication of the States Parties which have nominated them, and

205

shall submit it to the States Parties to the present Covenant no later than one month before the date of each election.

4. Elections of the members of the Committee shall be held at a meeting of the States Parties to the present Covenant convened by the Secretary-General of the United Nations at the Headquarters of the United Nations. At that meeting, for which two thirds of the States Parties to the present Covenant shall constitute a quorum, the persons elected to the Committee shall be those nominees who obtain the largest number of votes and an absolute majority of the votes of the representatives of States Parties present and voting.

Article 31

1. The Committee may not include more than one national of the same State.

2. In the election of the Committee, consideration shall be given to equitable geographical distribution of membership and to the representation of the different forms of civilization and of the principal legal systems.

Article 32

1. The members of the Committee shall be elected for a term of four years. They shall be eligible for re-election if renominated. However, the terms of nine of the members elected at the first election shall expire at the end of two years; immediately after the first election, the names of these nine members shall be chosen by lot by the Chairman of the meeting referred to in article 30, paragraph 4.

2. Elections at the expiry of office shall be held in accordance with the preceding articles of this part of the present Covenant.

Article 33

1. If, in the unanimous opinion of the other members, a member of the Committee has ceased to carry out his functions for any cause other than absence of a temporary character, the Chairman of the Committee shall notify the Secretary-General of the United Nations, who shall then declare the seat of that member to be vacant.

2. In the event of the death or the resignation of a member of the Committee, the Chairman shall immediately notify the Secretary-General of the United Nations, who shall declare the seat vacant from the date of death or the date on which the resignation takes effect.

Article 34

1. When a vacancy is declared in accordance with article 33 and if the term of office of the member to be replaced does not expire within six months of the declaration of the vacancy, the Secretary-General of the United Nations shall notify each of the States Parties to the present Covenant, which may within two months submit nominations in accordance with article 29 for the purpose of filling the vacancy.

2. The Secretary-General of the United Nations shall prepare a list in alphabetical order of the persons thus nominated and shall submit it to the States Parties to the present Covenant. The election to fill the vacancy shall then take place in accordance with the relevant provisions of this part of the present Covenant.

206

3. A member of the Committee elected to fill a vacancy declared in accordance with article 33 shall hold office for the remainder of the term of the member who vacated the seat on the Committee under the provisions of that article.

Article 35

The members of the Committee shall, with the approval of the General Assembly of the United Nations, receive emoluments from United Nations resources on such terms and conditions as the General Assembly may decide, having regard to the importance of the Committee's responsibilities.

Article 36

The Secretary-General of the United Nations shall provide the necessary staff and facilities for the effective performance of the functions of the Committee under the present Covenant.

Article 37

1. The Secretary-General of the United Nations shall convene the initial meeting of the Committee at the Headquarters of the United Nations.

2. After its initial meeting, the Committee shall meet at such times as shall be provided in its rules of procedure.

3. The Committee shall normally meet at the Headquarters of the United Nations or at the United Nations Office at Geneva.

Article 38

Every member of the Committee shall, before taking up his duties, make a solemn declaration in open committee that he will perform his functions impartially and conscientiously.

Article 39

1. The Committee shall elect its officers for a term of two years. They may be re-elected.

2. The Committee shall establish its own rules of procedure, but these rules shall provide, inter alia, that:

(a) Twelve members shall constitute a quorum;

(b) Decisions of the Committee shall be made by a majority vote of the members present.

Article 40

1. The States Parties to the present Covenant undertake to submit reports on the measures they have adopted which give effect to the rights recognized herein and on the progress made in the enjoyment of those rights:

(a) Within one year of the entry into force of the present Covenant for the States Parties concerned;

207

(b) Thereafter whenever the Committee so requests.

2. All reports shall be submitted to the Secretary-General of the United Nations, who shall transmit them to the Committee for consideration. Reports shall indicate the factors and difficulties, if any, affecting the implementation of the present Covenant.

3. The Secretary-General of the United Nations may, after consultation with the Committee, transmit to the specialized agencies concerned copies of such parts of the reports as may fall within their field of competence.

4. The Committee shall study the reports submitted by the States Parties to the present Covenant. It shall transmit its reports, and such general comments as it may consider appropriate, to the States Parties. The Committee may also transmit to the Economic and Social Council these comments along with the copies of the reports it has received from States Parties to the present Covenant.

5. The States Parties to the present Covenant may submit to the Committee observations on any comments that may be made in accordance with paragraph 4 of this article.

Article 41

1. A State Party to the present Covenant may at any time declare under this article that it recognizes the competence of the Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under the present Covenant. Communications under this article may be received and considered only if submitted by a State Party which has made a declaration recognizing in regard to itself the competence of the Committee. No communication shall be received by the Committee if it concerns a State Party which has not made such a declaration. Communications received under this article shall be dealt with in accordance with the following procedure:

(a) If a State Party to the present Covenant considers that another State Party is not giving effect to the provisions of the present Covenant, it may, by written communication, bring the matter to the attention of that State Party. Within three months after the receipt of the communication the receiving State shall afford the State which sent the communication an explanation, or any other statement in writing clarifying the matter which should include, to the extent possible and pertinent, reference to domestic procedures and remedies taken, pending, or available in the matter;

(b) If the matter is not adjusted to the satisfaction of both States Parties concerned within six months after the receipt by the receiving State of the initial communication, either State shall have the right to refer the matter to the Committee, by notice given to the Committee and to the other State;

(c) The Committee shall deal with a matter referred to it only after it has ascertained that all available domestic remedies have been invoked and exhausted in the matter, in conformity with the generally recognized principles of international law. This shall not be the rule where the application of the remedies is unreasonably prolonged;

(d) The Committee shall hold closed meetings when examining communications under this article;

208

(e) Subject to the provisions of subparagraph (c), the Committee shall make available its good offices to the States Parties concerned with a view to a friendly solution of the matter on the basis of respect for human rights and fundamental freedoms as recognized in the present Covenant;

(f) In any matter referred to it, the Committee may call upon the States Parties concerned, referred to in subparagraph (b), to supply any relevant information;

(g) The States Parties concerned, referred to in subparagraph (b), shall have the right to be represented when the matter is being considered in the Committee and to make submissions orally and/or in writing;

(h) The Committee shall, within twelve months after the date of receipt of notice under subparagraph (b), submit a report:

(i) If a solution within the terms of subparagraph (e) is reached, the Committee shall confine its report to a brief statement of the facts and of the solution reached;

(ii) If a solution within the terms of subparagraph (e) is not reached, the Committee shall confine its report to a brief statement of the facts; the written submissions and record of the oral submissions made by the States Parties concerned shall be attached to the report. In every matter, the report shall be communicated to the States Parties concerned.

2. The provisions of this article shall come into force when ten States Parties to the present Covenant have made declarations under paragraph of this article. Such declarations shall be deposited by the States Parties with the Secretary-General of the United Nations, who shall transmit copies thereof to the other States Parties. A declaration may be withdrawn at any time by notification to the Secretary-General. Such a withdrawal shall not prejudice the consideration of any matter which is the subject of a communication already transmitted under this article; no further communication by any State Party shall be received after the notification of withdrawal of the declaration has been received by the Secretary-General, unless the State Party concerned has made a new declaration.

Article 42

1. (a) If a matter referred to the Committee in accordance with article 41 is not resolved to the satisfaction of the States Parties concerned, the Committee may, with the prior consent of the States Parties concerned, appoint an ad hoc Conciliation Commission (hereinafter referred to as the Commission). The good offices of the Commission shall be made available to the States Parties concerned with a view to an amicable solution of the matter on the basis of respect for the present Covenant;

(b) The Commission shall consist of five persons acceptable to the States Parties concerned. If the States Parties concerned fail to reach agreement within three months on all or part of the composition of the Commission, the members of the Commission concerning whom no agreement has been reached shall be elected by secret ballot by a two-thirds majority vote of the Committee from among its members.

209

2. The members of the Commission shall serve in their personal capacity. They shall not be nationals of the States Parties concerned, or of a State not Party to the present Covenant, or of a State Party which has not made a declaration under article 41.

3. The Commission shall elect its own Chairman and adopt its own rules of procedure.

4. The meetings of the Commission shall normally be held at the Headquarters of the United Nations or at the United Nations Office at Geneva. However, they may be held at such other convenient places as the Commission may determine in consultation with the Secretary-General of the United Nations and the States Parties concerned.

5. The secretariat provided in accordance with article 36 shall also service the commissions appointed under this article.

6. The information received and collated by the Committee shall be made available to the Commission and the Commission may call upon the States Parties concerned to supply any other relevant information.

7. When the Commission has fully considered the matter, but in any event not later than twelve months after having been seized of the matter, it shall submit to the Chairman of the Committee a report for communication to the States Parties concerned:

(a) If the Commission is unable to complete its consideration of the matter within twelve months, it shall confine its report to a brief statement of the status of its consideration of the matter;

(b) If an amicable solution to the matter on the basis of respect for human rights as recognized in the present Covenant is reached, the Commission shall confine its report to a brief statement of the facts and of the solution reached;

(c) If a solution within the terms of subparagraph (b) is not reached, the Commission's report shall embody its findings on all questions of fact relevant to the issues between the States Parties concerned, and its views on the possibilities of an amicable solution of the matter. This report shall also contain the written submissions and a record of the oral submissions made by the States Parties concerned;

(d) If the Commission's report is submitted under subparagraph (c), the States Parties concerned shall, within three months of the receipt of the report, notify the Chairman of the Committee whether or not they accept the contents of the report of the Commission.

8. The provisions of this article are without prejudice to the responsibilities of the Committee under article 41.

9. The States Parties concerned shall share equally all the expenses of the members of the Commission in accordance with estimates to be provided by the Secretary-General of the United Nations.

10. The Secretary-General of the United Nations shall be empowered to pay the expenses of the members of the Commission, if necessary, before reimbursement by the States Parties concerned, in accordance with paragraph 9 of this article.

210

Article 43

The members of the Committee, and of the ad hoc conciliation commissions which may be appointed under article 42, shall be entitled to the facilities, privileges and immunities of experts on mission for the United Nations as laid down in the relevant sections of the Convention on the Privileges and Immunities of the United Nations.

Article 44

The provisions for the implementation of the present Covenant shall apply without prejudice to the procedures prescribed in the field of human rights by or under the constituent instruments and the conventions of the United Nations and of the specialized agencies and shall not prevent the States Parties to the present Covenant from having recourse to other procedures for settling a dispute in accordance with general or special international agreements in force between them.

Article 45

The Committee shall submit to the General Assembly of the United Nations, through the Economic and Social Council, an annual report on its activities.

PART V

Article 46

Nothing in the present Covenant shall be interpreted as impairing the provisions of the Charter of the United Nations and of the constitutions of the specialized agencies which define the respective responsibilities of the various organs of the United Nations and of the specialized agencies in regard to the matters dealt with in the present Covenant.

Article 47

Nothing in the present Covenant shall be interpreted as impairing the inherent right of all peoples to enjoy and utilize fully and freely their natural wealth and resources.

PART VI

Article 48

1. The present Covenant is open for signature by any State Member of the United Nations or member of any of its specialized agencies, by any State Party to the Statute of the International Court of Justice, and by any other State which has been invited by the General Assembly of the United Nations to become a Party to the present Covenant.

2. The present Covenant is subject to ratification. Instruments of ratification shall be deposited with the Secretary-General of the United Nations.

3. The present Covenant shall be open to accession by any State referred to in paragraph 1 of this article.

211

4. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations.

5. The Secretary-General of the United Nations shall inform all States which have signed this Covenant or acceded to it of the deposit of each instrument of ratification or accession.

Article 49

1. The present Covenant shall enter into force three months after the date of the deposit with the Secretary-General of the United Nations of the thirty-fifth instrument of ratification or instrument of accession.

2. For each State ratifying the present Covenant or acceding to it after the deposit of the thirty-fifth instrument of ratification or instrument of accession, the present Covenant shall enter into force three months after the date of the deposit of its own instrument of ratification or instrument of accession.

Article 50 The provisions of the present Covenant shall extend to all parts of federal States without any limitations or exceptions.

Article 51

1. Any State Party to the present Covenant may propose an amendment and file it with the Secretary-General of the United Nations. The Secretary-General of the United Nations shall thereupon communicate any proposed amendments to the States Parties to the present Covenant with a request that they notify him whether they favor a conference of States Parties for the purpose of considering and voting upon the proposals. In the event that at least one third of the States Parties favors such a conference, the Secretary-General shall convene the conference under the auspices of the United Nations. Any amendment adopted by a majority of the States Parties present and voting at the conference shall be submitted to the General Assembly of the United Nations for approval.

2. Amendments shall come into force when they have been approved by the General Assembly of the United Nations and accepted by a two-thirds majority of the States Parties to the present Covenant in accordance with their respective constitutional processes.

3. When amendments come into force, they shall be binding on those States Parties which have accepted them, other States Parties still being bound by the provisions of the present Covenant and any earlier amendment which they have accepted.

Article 52

Irrespective of the notifications made under article 48, paragraph 5, the Secretary-General of the United Nations shall inform all States referred to in paragraph 1 of the same article of the following particulars:

(a) Signatures, ratifications and accessions under article 48;

(b) The date of the entry into force of the present Covenant under article 49 and the date of the entry into force of any amendments under article 51.

Article 53

212

1. The present Covenant, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations.

2. The Secretary-General of the United Nations shall transmit certified copies of the present Covenant to all States referred to in article 48.

---------------------------------------------

NTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS

PART I

Article 1

1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.

3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.

PART II

Article 2

1. Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.

2. The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

3. Developing countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognized in the present Covenant to non-nationals.

Article 3

The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the present Covenant.

213

Article 4

The States Parties to the present Covenant recognize that, in the enjoyment of those rights provided by the State in conformity with the present Covenant, the State may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.

Article 5

1. Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights or freedoms recognized herein, or at their limitation to a greater extent than is provided for in the present Covenant.

2. No restriction upon or derogation from any of the fundamental human rights recognized or existing in any country in virtue of law, conventions, regulations or custom shall be admitted on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent.

PART III

Article 6

1. The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.

2. The steps to be taken by a State Party to the present Covenant to achieve the full realization of this right shall include technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual.

Article 7

The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular:

(a) Remuneration which provides all workers, as a minimum, with:

(i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work;

(ii) A decent living for themselves and their families in accordance with the provisions of the present Covenant;

(b) Safe and healthy working conditions;

214

(c) Equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence;

(d) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays

Article 8

1. The States Parties to the present Covenant undertake to ensure:

(a) The right of everyone to form trade unions and join the trade union of his choice, subject only to the rules of the organization concerned, for the promotion and protection of his economic and social interests. No restrictions may be placed on the exercise of this right other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others;

(b) The right of trade unions to establish national federations or confederations and the right of the latter to form or join international trade-union organizations;

(c) The right of trade unions to function freely subject to no limitations other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others;

(d) The right to strike, provided that it is exercised in conformity with the laws of the particular country.

2. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces or of the police or of the administration of the State.

3. Nothing in this article shall authorize States Parties to the International LabourOrganisation Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or apply the law in such a manner as would prejudice, the guarantees provided for in that Convention.

Article 9

The States Parties to the present Covenant recognize the right of everyone to social security, including social insurance.

Article 10

The States Parties to the present Covenant recognize that:

1. The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children. Marriage must be entered into with the free consent of the intending spouses.

215

2. Special protection should be accorded to mothers during a reasonable period before and after childbirth. During such period working mothers should be accorded paid leave or leave with adequate social security benefits.

3. Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions. Children and young persons should be protected from economic and social exploitation. Their employment in work harmful to their morals or health or dangerous to life or likely to hamper their normal development should be punishable by law. States should also set age limits below which the paid employment of child labour should be prohibited and punishable by law.

Article 11

1. The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.

2. The States Parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger, shall take, individually and through international co-operation, the measures, including specific programmes, which are needed:

(a) To improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and by developing or reforming agrarian systems in such a way as to achieve the most efficient development and utilization of natural resources;

(b) Taking into account the problems of both food-importing and food-exporting countries, to ensure an equitable distribution of world food supplies in relation to need.

Article 12

1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:

(a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child;

(b) The improvement of all aspects of environmental and industrial hygiene;

216

(c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases;

(d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness.

Article 13

1. The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace.

2. The States Parties to the present Covenant recognize that, with a view to achieving the full realization of this right:

(a) Primary education shall be compulsory and available free to all;

(b) Secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education;

(c) Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education;

(d) Fundamental education shall be encouraged or intensified as far as possible for those persons who have not received or completed the whole period of their primary education;

(e) The development of a system of schools at all levels shall be actively pursued, an adequate fellowship system shall be established, and the material conditions of teaching staff shall be continuously improved.

3. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions.

4. No part of this article shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principles set forth in paragraph 1 of this article and to the requirement that the education given in such institutions shall conform to such minimum standards as may be laid down by the State.

Article 14

Each State Party to the present Covenant which, at the time of becoming a Party, has not been able to secure in its metropolitan territory or other territories under its jurisdiction compulsory primary education, free of charge, undertakes, within two years, to work out and adopt a detailed

217

plan of action for the progressive implementation, within a reasonable number of years, to be fixed in the plan, of the principle of compulsory education free of charge for all.

Article 15

1. The States Parties to the present Covenant recognize the right of everyone: ic, literary or artistic production of which he is the author.

2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for the conservation, the development and the diffusion of science and culture.

3. The States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity.

4. The States Parties to the present Covenant recognize the benefits to be derived from the encouragement and development of international contacts and co-operation in the scientific and cultural fields.

PART IV

Article 16

1. The States Parties to the present Covenant undertake to submit in conformity with this part of the Covenant reports on the measures which they have adopted and the progress made in achieving the observance of the rights recognized herein.

2. (a) All reports shall be submitted to the Secretary-General of the United Nations, who shall transmit copies to the Economic and Social Council for consideration in accordance with the provisions of the present Covenant;

(b) The Secretary-General of the United Nations shall also transmit to the specialized agencies copies of the reports, or any relevant parts therefrom, from States Parties to the present Covenant which are also members of these specialized agencies in so far as these reports, or parts therefrom, relate to any matters which fall within the responsibilities of the said agencies in accordance with their constitutional instruments.

Article 17

1. The States Parties to the present Covenant shall furnish their reports in stages, in accordance with a programme to be established by the Economic and Social Council within one year of the entry into force of the present Covenant after consultation with the States Parties and the specialized agencies concerned.

2. Reports may indicate factors and difficulties affecting the degree of fulfilment of obligations under the present Covenant.

3. Where relevant information has previously been furnished to the United Nations or to any specialized agency by any State Party to the present Covenant, it will not be necessary to reproduce that information, but a precise reference to the information so furnished will suffice.

218

Article 18

Pursuant to its responsibilities under the Charter of the United Nations in the field of human rights and fundamental freedoms, the Economic and Social Council may make arrangements with the specialized agencies in respect of their reporting to it on the progress made in achieving the observance of the provisions of the present Covenant falling within the scope of their activities. These reports may include particulars of decisions and recommendations on such implementation adopted by their competent organs.

Article 19

The Economic and Social Council may transmit to the Commission on Human Rights for study and general recommendation or, as appropriate, for information the reports concerning human rights submitted by States in accordance with articles 16 and 17, and those concerning human rights submitted by the specialized agencies in accordance with article 18.

Article 20

The States Parties to the present Covenant and the specialized agencies concerned may submit comments to the Economic and Social Council on any general recommendation under article 19 or reference to such general recommendation in any report of the Commission on Human Rights or any documentation referred to therein.

Article 21

The Economic and Social Council may submit from time to time to the General Assembly reports with recommendations of a general nature and a summary of the information received from the States Parties to the present Covenant and the specialized agencies on the measures taken and the progress made in achieving general observance of the rights recognized in the present Covenant.

Article 22

The Economic and Social Council may bring to the attention of other organs of the United Nations, their subsidiary organs and specialized agencies concerned with furnishing technical assistance any matters arising out of the reports referred to in this part of the present Covenant which may assist such bodies in deciding, each within its field of competence, on the advisability of international measures likely to contribute to the effective progressive implementation of the present Covenant.

Article 23

The States Parties to the present Covenant agree that international action for the achievement of the rights recognized in the present Covenant includes such methods as the conclusion of conventions, the adoption of recommendations, the furnishing of technical assistance and the holding of regional meetings and technical meetings for the purpose of consultation and study organized in conjunction with the Governments concerned.

Article 24

Nothing in the present Covenant shall be interpreted as impairing the provisions of the Charter of the United Nations and of the constitutions of the specialized agencies which define the

219

respective responsibilities of the various organs of the United Nations and of the specialized agencies in regard to the matters dealt with in the present Covenant.

Article 25

Nothing in the present Covenant shall be interpreted as impairing the inherent right of all peoples to enjoy and utilize fully and freely their natural wealth and resources.

PART V

Article 26

1. The present Covenant is open for signature by any State Member of the United Nations or member of any of its specialized agencies, by any State Party to the Statute of the International Court of Justice, and by any other State which has been invited by the General Assembly of the United Nations to become a party to the present Covenant.

2. The present Covenant is subject to ratification. Instruments of ratification shall be deposited with the Secretary-General of the United Nations.

3. The present Covenant shall be open to accession by any State referred to in paragraph 1 of this article.

4. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations.

5. The Secretary-General of the United Nations shall inform all States which have signed the present Covenant or acceded to it of the deposit of each instrument of ratification or accession.

Article 27

1. The present Covenant shall enter into force three months after the date of the deposit with the Secretary-General of the United Nations of the thirty-fifth instrument of ratification or instrument of accession.

2. For each State ratifying the present Covenant or acceding to it after the deposit of the thirty-fifth instrument of ratification or instrument of accession, the present Covenant shall enter into force three months after the date of the deposit of its own instrument of ratification or instrument of accession.

Article 28

The provisions of the present Covenant shall extend to all parts of federal States without any limitations or exceptions.

Article 29

1. Any State Party to the present Covenant may propose an amendment and file it with the Secretary-General of the United Nations. The Secretary-General shall thereupon communicate any proposed amendments to the States Parties to the present Covenant with a request that they notify him whether they favour a conference of States Parties for the purpose of considering and voting upon the proposals. In the event that at least one third of the States Parties favours such a

220

conference, the Secretary-General shall convene the conference under the auspices of the United Nations. Any amendment adopted by a majority of the States Parties present and voting at the conference shall be submitted to the General Assembly of the United Nations for approval.

2. Amendments shall come into force when they have been approved by the General Assembly of the United Nations and accepted by a two-thirds majority of the States Parties to the present Covenant in accordance with their respective constitutional processes.

3. When amendments come into force they shall be binding on those States Parties which have accepted them, other States Parties still being bound by the provisions of the present Covenant and any earlier amendment which they have accepted.

Article 30

Irrespective of the notifications made under article 26, paragraph 5, the Secretary-General of the United Nations shall inform all States referred to in paragraph 1 of the same article of the following particulars:

(a) Signatures, ratifications and accessions under article 26;

(b) The date of the entry into force of the present Covenant under article 27 and the date of the entry into force of any amendments under article 29.

Article 31

1. The present Covenant, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations.

2. The Secretary-General of the United Nations shall transmit certified copies of the present Covenant to all States referred to in article 26.

SYLLABUS

A. The Constitution

1. Definition, Nature and Concepts2. Parts3. Amendments and Revisions4. Self-Executing and Non-Self-Executing Provisions5. General Provisions

221

B. General Considerations

1. National Territorya. Archipelagic Doctrine

2. State Immunity3. Principles and Policies4. Separation of Powers5. Checks and Balances6. Delegation of Powers7. Forms of Government

C. Legislative Department

1. Who May Exercise Legislative Powera. Initiative and Referendum

2. Houses of Congressa. Senateb. House of Representatives

(1) District Representatives and Questions of Apportionment(2) Party-List System

3. Legislative Privileges, Inhibitions and Disqualifications4. Quorum and Voting Majorities5. Discipline of Members6. Electoral Tribunals and the Commission on Appointments

a. Natureb. Powers

7. Powers of Congressa. Legislative

(1) Legislative Inquiries and the Oversight Functions(2) Bicameral Conference Committee(3) Limitations on Legislative Power

(a) Limitations on Revenue, Appropriations and Tariff Measures(b) Presidential Veto and Congressional Override

b. Non-Legislative(1) Informing Function

D. Executive Department

1. Privileges, Inhibitions and Disqualificationsa. Presidential Immunityb. Presidential Privilege

2. Powersa. Executive and Administrative Powers in Generalb. Power of Appointment

222

(1) In General(2) Commission on Appointments Confirmation(3) Midnight Appointments(4) Power of Removal

c. Power of Control and Supervision(1) Doctrine of Qualified Political Agency(2) Executive Departments and Offices(3) Local Government Units

d. Military Powerse. Pardoning Power

(1) Nature and Limitations(2) Forms of Executive Clemency

f. Diplomatic Powerg. Residual Powers

E. Judicial Department1. Concepts

a. Judicial Powerb. Judicial Review

(1) Operative Fact Doctrine(2) Moot Questions(3) Political Question Doctrine

2. Judicial Independence Safeguards3. Judicial Restraint4. Appointments to the Judiciary5. Supreme Court

a. En Banc and Division Casesb. Procedural Rule Makingc. Administrative Supervision Over Lower Courts

F. Constitutional Commissions1. Institutional Independence Safeguards2. Powers and Functions3. Judicial Reviewa. Quasi-Judicial Functionsb. Administrative

G. Bill of Rights

1. Fundamental Powers of the Statea. Concept and Applicationb. Requisites for Valid Exercisec. Similarities and Differencesd. Delegation

2. Private Acts and the Bill of Rights3. Due Process

a. Relativity of Due Process

223

b. Procedural and Substantive Due Processc. Constitutional and Statutory Due Processd. Hierarchy of Rightse. Judicial Standards of Reviewf. Void-for-Vagueness Doctrine

4. Equal Protectiona. Conceptb. Requisites for Valid Classification

5. Searches and Seizuresa. Conceptb. Warrant Requirement

(1) Requisitesc. Warrantless Searchesd. Warrantless Arrestse. Administrative Arrestsf. Drug, Alcohol and Blood Tests

6. Privacy of Communications and Correspondencea. Private and Public Communicationsb. Writ of Habeas Data

7. Freedom of Expressiona. Concept and Scope

(1) Prior Restraint (Censorship)(2) Subsequent Punishment

b. Content-Based and Content-Neutral Regulationsc. Facial Challenges and the Overbreadth Doctrined. Testse. State Regulation of Different Types of Mass Mediaf. Commercial Speechg. Private v. Government Speechh. Heckler’s Veto

8. Freedom of Religiona. Non-Establishment Clauseb. Free Exercise Clause

9. Liberty of Abode and Freedom of Movementa. Limitationsb. Return to One’s County

10. Right to Informationa. Limitationsb. Publication of Laws and Regulationsc. Access to Court Recordsd. Right to Information Relative to

(1) Government Contract Negotiations(2) Diplomatic Negotiations

11. Right of Association12. Eminent Domain

a. Concept

224

b. Expansive Concept of "Public Use"c. Just Compensation

(1) Determination(2) Effect of Delay

d. Abandonment of Intended Use and Right of Repurchasee. Miscellaneous Application

13. Contract Clausea. Contemporary Application of the Contract Clause

14. Legal Assistance and Free Access to Courts15. Rights of Suspects

a. Availabilityb. Requisitesc. Waiver

16. Rights of the Accuseda. Criminal Due Processb. Bailc. Presumption of Innocenced. Right to be Hearde. Assistance of Counself. Right to be Informedg. Right to Speedy, Impartial and Public Trialh. Right of Confrontationi. Compulsory Processj. Trials In Absentia

17. Writ of Habeas Corpusa. Writ of Amparo

18. Self-Incrimination Clausea. Scope and Coverage

(1) Foreign Lawsb. Applicationc. Immunity Statutes

19. Involuntary Servitude and Political Prisoners20. Excessive Fines and Cruel and Inhuman Punishments21. Non-Imprisonment for Debts22. Double Jeopardy

a. Requisitesb. Motions for Reconsideration and Appealsc. Dismissal with Consent of Accused

23. Ex Post Facto Laws and Bills of Attainder

H. Citizenship

1. Natural-Born Citizens and Public Office2. Naturalization and Denaturalization3. Loss of Citizenship4. Repatriation

225

I. Law on Public Officers

1. General Principles2. Modes of Acquiring Title to Public Office3. Modes and Kinds of Appointment4. Eligibility and Qualification Requirements5. Disabilities and Inhibitions of Public Officers6. Powers and Duties of Public Officers7. Rights of Public Officers8. Liabilities of Public Officers

a. Preventive Suspension and Back Salariesb. Illegal Dismissal, Reinstatement and Back Salaries

9. Immunity of Public Officers10. De Facto Officers11. Termination of Official Relation12. The Civil Service

a. Scopeb. Appointments to the Civil Servicec. Personnel Actions

13. Accountability of Public Officersa. Impeachmentb. Ombudsman

(1) Judicial Review in Administrative Proceedings(2) Judicial Review in Penal Proceedings

c. Sandiganbayand. Ill-Gotten Wealth

14. Term Limits

J. Administrative Law1. General Principles2. Administrative Agencies3. Powers of Administrative Agencies

a. Quasi-Legislative (Rule Making) Power(1) Kinds of Administrative Rules and Regulations(2) Requisites for Validity

b. Quasi-Judicial (Adjudicatory) Power(1) Administrative Due Process(2) Administrative Appeal and Review(3) Administrative Res Judicata

c. Fact-Finding, Investigative, Licensing and Rate-Fixing Powers4. Judicial Recourse and Review

a. Doctrine of Primary Administrative Jurisdictionb. Doctrine of Exhaustion of Administrative Remediesc. Doctrine of Finality of Administrative Action

226

K. Election Law1. Suffrage2. Qualification and Disqualification of Voters3. Registration of Voters4. Inclusion and Exclusion Proceedings5. Political Parties6. Candidacy

a. Qualifications of Candidatesb. Filing of Certificates of Candidacy

(1) Effect of Filing(2) Substitution of Candidates(3) Nuisance Candidates(4) Petition to Deny or Cancel Certificates of Candidacy(5) Effect of Disqualification(6) Withdrawal of Candidates

7. Campaigna. Premature Campaigningb. Prohibited Contributions

8. Board of Canvassers9. Remedies and Jurisdiction in Election Law

a. Petition Not to Give Due Course to Certificate of Candidacyb. Petition to Declare Failure of Electionsc. Pre-Proclamation Controversyd. Election Proteste. Quo Warranto

10. Prosecution of Election Offenses

L. Local Governments1. Public Corporations

a. Concept(1) Distinguished from Government-Owned or Controlled Corporations (GOCCs)

b. Classifications(1) Quasi-Corporations(2) Municipal Corporations

2. Municipal Corporationsa. Elementsb. Nature and Functionsc. Requisites for Creation, Conversion, Division, Merger or Dissolution

3. Principles of Local Autonomy4. Powers of Local Government Units (LGUs)

a. Police Power (General Welfare Clause)b. Eminent Domainc. Taxing Powerd. Closure and Opening of Roads

227

e. Legislative Power(1) Requisites for Valid Ordinance(2) Local Initiative and Referendum

f. Corporate Powers(1) To Sue and Be Sued(2) To Acquire and Sell Property(3) To Enter Into Contracts

(a) Requisites(b) Ultra Vires Contracts

g. Liability of LGUsh. Settlement of Boundary Disputesi. Succession of Elective Officialsj. Discipline of Local Officials

(1) Elective Officials(a) Grounds(b) Jurisdiction(c) Preventive Suspension(d) Removal(e) Administrative Appeal(f) Doctrine of Condonation

(2) Appointive Officialsk. Recalll. Term Limits

M. National Economy and Patrimony1. Regalian Doctrine2. Nationalist and Citizenship Requirement Provisions3. Exploration, Development and Utilization of Natural Resources4. Franchises, Authority and Certificates for Public Utilities5. Acquisition, Ownership and Transfer of Public and Private Lands6. Practice of Professions7. Organization and Regulation of Corporations, Private and Public8. Monopolies, Restraint of Trade and Unfair Competition

N. Social Justice and Human Rights

1. Concept of Social Justice2. Commission on Human Rights

O. Education, Science, Technology, Arts, Culture and Sports

1. Academic Freedom

P. Public International Law

228

1. Conceptsa. Obligations ErgaOmnesb. Jus Cogensc. Concept of AeguoEt Bono

2. International and National Law3. Sources4. Subjects

a. Statesb. International Organizationsc. Individuals

5. Diplomatic and Consular Law6. Treaties7. Nationality and Statelessness8. Treatment of Aliens

a. Extradition(1) Fundamental Principles(2) Procedure(3) Distinguished from Deportation

9. International Human Rights Lawa. Universal Declaration of Human Rightsb. International Covenant on Civil and Political Rights (ICCPR)c. International Covenant on Economic, Social and Cultural Rights (ICESCR)

10. International Humanitarian Law (IHL) and Neutralitya. Categories of Armed Conflicts

(1) International Armed Conflicts(2) Internal or Non-International Armed Conflict(3) War of National Liberation

b. Core International Obligations of States in IHLc. Principles of IHL

(1) Treatment of Civilians(2) Prisoners of War

d. Law on Neutrality11. Law of the Sea

a. Baselinesb. Archipelagic States

(1) Straight Archipelagic Baselines(2) Archipelagic Waters(3) Archipelagic Sea Lanes Passage

c. Internal Watersd. Territorial Seae. Exclusive Economic Zonef. Continental Shelf

(1) Extended Continental Shelf1awphil

229

g. Tribunal of the Law of the Sea12. International Environment Law

a. Principle 21 of Stockholm Declaration

230