Political Law Pre Week 2017.pdf

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POLITICAL LAW PRE-WEEK

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CONSTITUTIONAL LAW 1 Q1: What is the archipelagic doctrine or archipelago theory? A1: As embodied in the 2nd sentence of the 1987 CONST, ART. I, Section 1: “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.” A body of water studded with islands, or the islands surrounded with water, is viewed as a unity of islands and waters together forming one integrated unit. Q2: ART. XVI, Sec. 3 states that “The State may not be sued without its consent.” What is the test to determine if a suit is against the State? A2: State immunity from suit may be invoked as long as the suit really affects the property, rights, or interests of the State and not merely those of the officers nominally made party defendants. [Tan v. Director of Forestry, G.R. No. L-24548, (1983)] Q3: Who are citizens of the Philippines? A3: The following are citizens of the Philippines: 1. Those who are citizens of the Philippines at the time of the adoption of this Constitution; 2. Those whose fathers or mothers are citizens of the Philippines; 3. Those born before January 17, 1973, of Filipino mothers, who elect Philippine Citizenship upon reaching the age of majority; and 4. Those who are naturalized in the accordance with law. [1987 CONST, ART. IV, Section 1] Q4: Who are natural born citizens? A4: Natural-born citizens are those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship. Those who are born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority shall be deemed natural-born citizens. Q5: Are foundlings natural-born citizens? A5: Yes. As a matter of law, foundlings are, as a class, natural-born citizens. Natural-born citizens are those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship 1987 CONST., ART IV, Section 2]. Firstly, "having to perform an act" means that the act must be personally done by the citizen. In this instance, the determination of foundling status is done not by the child but by the authorities. Secondly, the object of the process is the determination of the whereabouts of the parents, not the citizenship of the child. Lastly, the process is certainly not analogous to naturalization proceedings to acquire Philippine citizenship, or the election of such citizenship by one born of an alien father and a Filipino mother under the 1935 Constitution, which is an act to perfect it. While the 1935 Constitution’s enumeration is silent as to foundlings, there is no restrictive language which would definitely exclude foundlings either. No such intent or language permits discrimination against foundlings. On the contrary, all three Constitutions (1935, 1973, 1987) guarantee the basic right to equal protection of the laws. All exhort the State to render social justice. [Poe-Llamanzares v COMELEC, G.R. No. 221697 (2016)]

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Q6: Ariadne, a natural-born Filipino citizen, married Hercule, a citizen of the island nation of Lemuria. By virtue of her marriage to Hercule, Ariadne acquired Lemurian citizenship. In 2009, Ariadne filed an unsworn affidavit of renunciation before Lemuria’s Department of Immigration, the department, in turn, issued an order certifying that she had lost Lemurian citizenship. She took her oath of allegiance before the Philippine Ambassador to Lemuria later that year. Ariadne returned to her home province of La Union, in 2010. She ran for a seat in Congress in 2016. Her opponent sought her disqualification, claiming she had not effectively renounced Lemurian citizenship. Ariadne, argues that under Lemurian law, she had already lost Lemurian citizenship, and that in any case, her act of running for public office in the Philippines cures her allegedly defective renunciation. Is Ariadne correct? A6: No. Ariadne is not correct. Ariadne filed an unsworn affidavit of renunciation of Lemurian citizenship. While this may be sufficient under Lemurian law, Philippine law is categorical in its requirement of a sworn affidavit of renunciation. Sec. 5(2) of RA 9225 requires that the renunciation of foreign citizenship must be sworn before an officer authorized to administer oath. Ariadne’s act of running for public office does not suffice to serve as an effective renunciation of her Lemurian citizenship. While the Court has previously declared that the filing by a person with dual citizenship of a certificate of candidate is already considered a renunciation of foreign citizenship, such ruling was already adjudged superseded by the enactment of RA 9255 on August 29, 2003 which provides for the additional condition of a personal and sworn renunciation of foreign citizenship. [Sobejana-Condon v. COMELEC, GR No. 198742 (2012)] Q7: Which groups may participate in party-list elections? A7: (1) National parties or organizations, (2) Regional parties or organizations, (3) Sectoral parties or organizations. 1. National parties or organizations and regional parties or organizations do not need to organize along sectoral lines and do not need to represent any “marginalized and underrepresented” sector. 2. Political parties can participate in party-list elections provided they register under the party-list system and do not field candidates in legislative district elections. A political party, whether major or not, that fields candidates in legislative district elections can participate in partylist elections only through its sectoral wing that can separately register under the party-list system. The sectoral wing is by itself an independent sectoral party, and is linked to a political party through a coalition. 3. Sectoral parties or organizations may either be “marginalized and underrepresented” or lacking in “welldefined political constituencies.” It is enough that their principal advocacy pertains to the special interest and concerns of their sector. The sectors that are “marginalized and underrepresented” include labor, peasant, fisherfolk, urban poor, indigenous cultural communities, handicapped, veterans, and overseas workers. The sectors that lack “well-defined political constituencies” include professionals, the elderly, women, and the youth. A majority of the members of sectoral parties or organizations that represent the “marginalized and underrepresented” must belong to the “marginalized and underrepresented” sector they represent. Similarly, a majority of the members of sectoral parties or organizations that lack “well-defined political constituencies” must belong to the sector they represent. The nominees of sectoral parties or organizations that represent the “marginalized and underrepresented,” or that represent those who lack “well-defined political constituencies,” either must belong to their respective sectors, or must have a track record of advocacy for their respective sectors. The nominees of national and regional parties or organizations must be bona-fide members of such parties or organizations. As an additional guideline, national, regional, and sectoral parties or organizations shall not be disqualified if some of their nominees are disqualified, provided that they have at least one nominee who remains qualified. [Atong Paglaum v. COMELEC, G.R. Nos. 203766, et al., April 2, 2013]

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Q8: Congressman Daniel Kisad wants to introduce a bill to create a new legislative district for Baguio City. Under his proposal the 1st district would have a total population of 250,000, while the 2nd district would have a population of 248,000. One of the members of his staff argues that such a bill is unconstitutional, since the 2nd district does not meet the required population. a. Is the staffer correct? b. What if Congressman Kisad wants to reapportion the districts of the province of Benguet, leaving two districts with a population of 200,000 each, is this possible? A8: a. No, the staffer is wrong. ART. VI, Sec. 5(3) provides, inter alia, that a city with a population of at least two hundred fifty thousand (250,000) shall have at least one representative. The population requirement only applies to the 1st legislative district of the city. [Mariano v. COMELEC, G.R. No. 118577 March 7, 1995] b. Yes, there is no specific provision in the Constitution that fixes a 250,000 minimum population that must compose a legislative district. The second sentence of Section 5(3), Article VI of the Constitution, succinctly provides: "Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative." The provision draws a plain and clear distinction between the entitlement of a city to a district on one hand, and the entitlement of a province to a district on the other. For while a province is entitled to at least a representative, with nothing mentioned about population, a city must first meet a population minimum of 250,000 in order to be similarly entitled. The use by the subject provision of a comma to separate the phrase "each city with a population of at least two hundred fifty thousand" from the phrase "or each province" point to no other conclusion than that the 250,000 minimum population is only required for a city, but not for a province. [Aquino III v. COMELEC, G.R. No. 189793 April 7, 2010] Q9: What is the composition of the HRET? A9: Three Supreme Court justices designated by the Chief Justice, and six members of the House chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein. The Senior Justice shall be its chairman [1987 CONST., ART VI, Sec. 17] Q10: When can the HRET assume jurisdiction over an election contest? A10: The HRET acts as the sole judge of all contests relating to the election, returns, and qualifications of the members of the House. To be considered a Member of the House of Representatives, there must be a concurrence of the following requisites: (1) a valid proclamation, (2) a proper oath, and (3) assumption of office. An elected candidate can only assume office "at noon on the thirtieth day of June next following their election." [Reyes v. COMELEC, G.R. No. 207264 (2013)] Q11: In an investigation in aid of legislation, Senator Estrada asked Atty. Francisco I. Chavez, as resource person, on the facts and issues the latter raised with the Supreme Court in Chavez v. National Housing Authority. The said case has already been decided by the Court with finality. Is the subject matter of the legislative inquiry sub judice? A11: No. The subject matter of the legislative inquiry is no longer sub judice or before a court or judge for consideration. The Court already denied with finality the motion of Chavez, as the petitioner in Chavez v. National Housing Authority, for reconsideration of the Decision of the Court. The sub judice issue has been rendered moot and academic by the supervening issuance of the en banc Resolution. An issue or a case becomes moot and academic when it ceases to present a justiciable controversy, so that a determination of the issue would be without practical use and value. In such cases, there is no actual substantial relief to which the petitioner would be entitled and which would be negated by the dismissal of the petition. In fine, it will not avail petitioners any to invoke the sub judice effect of Chavez and resist, on that ground, the assailed congressional invitations and subpoenas. [Romero v. Senator Estrada, G.R. No. 174105, April 2, 2009]

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Q12: Will a pending case before the Supreme Court bar the continuance of a Senate Committee investigation? A12: No. On-going judicial proceedings do not preclude congressional hearings in aid of legislation. While Sabio and Standard Chartered Bank advert only to pending criminal and administrative cases before lower courts as not posing a bar to the continuation of a legislative inquiry, there is no rhyme or reason that these cases’ doctrinal pronouncement and their rationale cannot be extended to appealed cases and special civil actions awaiting final disposition before the Supreme Court. The mere filing of a criminal or an administrative complaint before a court or quasi-judicial body should not automatically bar the conduct of legislative investigation. Otherwise, it would be extremely easy to subvert any intended inquiry by Congress through the convenient ploy of instituting a criminal or an administrative complaint. Surely, the exercise of sovereign legislative authority, of which the power of legislative inquiry is an essential component, cannot be made subordinate to a criminal or administrative investigation. Q13: Can cabinet secretaries invoke executive privilege and excuse themselves from appearing in Senate investigations? A13: No. They cannot invoke the executive privilege in their own capacities. In light of this highly exceptional nature of the executive privilege, the Court finds it essential to limit to the President the power to invoke the privilege. She may of course authorize the Executive Secretary to invoke the privilege on her behalf, in which case the Executive Secretary must state that the authority is "By order of the President," which means that he personally consulted with her. The privilege being an extraordinary power, it must be wielded only by the highest official in the executive hierarchy. In other words, the President may not authorize her subordinates to exercise such power. It follows, therefore, that when an official is being summoned by Congress on a matter which, in his own judgment, might be covered by executive privilege, he must be afforded reasonable time to inform the President or the Executive Secretary of the possible need for invoking the privilege. This is necessary in order to provide the President or the Executive Secretary with fair opportunity to consider whether the matter indeed calls for a claim of executive privilege. If, after the lapse of that reasonable time, neither the President nor the Executive Secretary invokes the privilege, Congress is no longer bound to respect the failure of the official to appear before Congress and may then opt to avail of the necessary legal means to compel his appearance. [Senate v. Ermita, G.R. No. 169777, April 20, 2006] Q14: What are the elements of presidential communications privilege? A14: 1. The protected communication must relate to a quintessential and non-delegable presidential power. 2. The communication must be authored or solicited and received by a close advisor of the President or the President himself. The judicial test is that an advisor must be in operational proximity with the President. 3. The presidential communications privilege remains a qualified privilege that may be overcome by a showing of adequate need, such that the information sought likely contains important evidence and by the unavailability of the information elsewhere by an appropriate investigating authority. [Neri v. Senate, G.R. No. 180643, March 25, 2008] Q15: In case of conflict between the journal and the enrolled bill, which shall prevail? A15: The enrolled bill prevails over the journal. If, for example, the enrolled bill provides that “urea formaldehyde” is exempt from tax, and not “urea and formaldehyde” which appears in the journal as actually approved, the former prevails and only curative legislation could change the same, not judicial legislation. However, if the President of the Philippines, Senate President and the Speaker of the House of Representatives withdraw their signatures as a result of an anomaly surrounding the printing of the final copy of the bill, then, the journal will prevail since what is left is no longer considered an “enrolled bill.” [Casco Phil. V. Gimenez, 7 SCRA 347]

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Q16: What is a pocket veto? Are there pocket vetoes in the Philippines? A16: A pocket veto is an indirect veto of a legislative bill by the executive by retaining the bill unsigned, or taking no action on it. There are no pocket vetoes in the Philippines. Under ART. VI, Sec. 27(1) of the 1987 CONST, if the President fails to communicate his veto of any bill to the House where it originated within 30 days after receipt thereof, it shall become a law as if he had signed it. Q17: A concerned citizen filed an ethics complaint against Senator Sixto, due to acts committed during his term as a Department Secretary in the immediately preceding administration. As a result of the investigation, the Senate Ethics Committee issued a Resolution finding him guilty of the charges. On the basis of such resolution, the Senate issued a resolution suspending him for 30 days. Senator Sixto questioned such resolution before the Supreme Court, arguing that the acts alleged did not constitute “disorderly behavior” since the acts questioned took place before he was elected Senator. Can the Supreme Court reverse the Senate resolution? A17: No. Each House of Congress is the judge of what constitutes disorderly behavior, not only because the Constitution has conferred jurisdiction upon it, but also because the matter depends mainly on factual circumstances of which that House knows best but which cannot be depicted in black and white for presentation to, and adjudication by the Courts. For one thing, if this Court assumed the power to determine whether Senator Sixto’s conduct constituted disorderly behavior, it would thereby have assumed appellate jurisdiction, which the Constitution never intended to confer upon a coordinate branch of the Government. The theory of separation of powers demands in such situation a prudent refusal to interfere. (Osmeña v. Pendatun [G.R. No. L-17144 (1950)]). Q18: Salome became a naturalized citizen of San Theodoros in 2002. In 2005, she returned to the Philippines, with an intention to resettle in her old hometown of Aringay, La Union. She returned to San Theodoros intermittently to facilitate the sale of her house and her belongings. She reacquired Philippine citizenship under RA 9225 in 2007. Salome, spurred by her sudden fame after becoming the champion in a national singing show, decided to run for President in the 2016 elections. Isagani, the second placer in the singing show challenged Salome’s candidacy, alleging that she did not fulfill the residency requirement since her stay in the Philippines from 2005 to 2007 cannot be counted as the rule is that the stay of an alien former Filipino cannot be counted until he/she obtains a permanent resident visa or reacquires Philippine citizenship. Is Isagani correct? A18: No, Salome has fulfilled the residency requirement. There are three requisites to acquire a new domicile: 1. Residence or bodily presence in a new locality; 2. an intention to remain there; and 3. an intention to abandon the old domicile. To successfully effect a change of domicile, one must demonstrate an actual removal or an actual change of domicile; a bona fide intention of abandoning the former place of residence and establishing a new one and definite acts which correspond with the purpose. In other words, there must basically be animus manendi coupled with animus non revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite period of time; the change of residence must be voluntary; and the residence at the place chosen for the new domicile must be actual. The residency requirement should not be counted from the re-acquisition of citizenship, but from when Salome effected a change of domicile. Here, Salome effectively abandoned San Theodoros for the Philippines in 2005, more than 10 years before the May 2016 elections, thus fulfilling the residency requirement provided in the Constitution. [Poe-Llamanzares v COMELEC, G.R. No. 221697 (2016)] Q19: Under what circumstances can the President suspend the privilege of the writ of habeas corpus? A19: Three conditions must concur for the suspension of the privilege of the writ of habeas corpus to be valid: 1. There must be invasion or rebellion;

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2. The public safety must require the suspension of the privilege; 3. For a period not exceeding sixty (60 days). [Lansang v. Garcia, G.R. No. L-33964 December 11, 1971; 1987 CONST., ART. III, Section 15 and ART. VII, Section 18] Q20. What are the constitutional safeguards to the exercise of the President’s power to proclaim martial law? A20: The following are the constitutional safeguards to the exercise of the power of the President to proclaim martial law: 1. There must be actual invasion or rebellion; 2. The duration of the proclamation shall not exceed sixty (60) days; 3. Within forty-eight (48) hours, the President shall report his action to Congress. If Congress is not in session, it must convene within forty-eight (48) hours; 4. Congress may by majority vote of all its members voting jointly revoke the proclamation, and the President cannot set aside the revocation; 5. By the same vote and in the same manner, upon initiative of the President, Congress may extend the proclamation if the invasion or rebellion continues and public safety requires the extension; 6. The Supreme Court may review the factual sufficiency of the proclamation, and the Supreme Court must decide the case within thirty (30) days from the time it was filed; 7. Martial law does not automatically suspend the privilege of the writ of habeas corpus or the operation of the Constitution. It does not supplant the functioning of the civil courts and of Congress. Military courts have no jurisdiction over civilians where civil courts are able to function [Cruz, Philippine Political Law, 1995 ed., pp. 213-214] Q21: Can the Congress review the suspension of the privilege of the writ of habeas corpus or proclamation of martial law by the President? A21: Yes. The Congress can either revoke or extend such suspension or proclamation. Within forty-eight (48) hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it. [1987 CONST., ART. VII, Section 18]. NB: In Padilla v. Congress, [GR No. 231671, Jul 25, 2017] the Court held that the provision in Article VII, Section 18 of the 1987 Constitution requiring the Congress to vote jointly in a joint session is specifically for the purpose of revocation of the President's proclamation of martial law and/or suspension of the privilege of the writ of habeas corpus. Q22: Can the President declare the existence of a state of national emergency without the approval of the Congress? A22: Yes. The President can validly declare the existence of a state of national emergency even in the absence of a Congressional enactment. Section 18, Article VII of the 1987 Constitution grants the President such power. [David v. Arroyo, G.R. No. 171396 (2006)].

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Q23: During the existence of a state of national emergency, the President ordered the taking over of privately owned public utilities and businesses affected with public interest. Can the President do this without a delegation from Congress? A23: No. The taking over of privately owned public utility or business affected with public interest requires a delegation from Congress. Q24: What is the procedure for questioning the President’s declaration of Martial Law? What is the extent of the Supreme Court’s power to review such declaration? A24: Section 18, Article VII provides that the Supreme Court may review, in an appropriate proceeding, filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus. The phrase "in an appropriate proceeding" refers to any action initiated by a citizen for the purpose of questioning the sufficiency of the factual basis of the exercise of the Chief Executive's emergency powers. It could be denominated as a complaint, a petition, or a matter to be resolved by the Court. A certiorari petition under Rule 65 is not the proper mode of review. The Court is limited to an examination on whether the President acted within the bounds set by the Constitution, i.e., whether the facts in his possession prior to and at the time of the declaration or suspension are sufficient for him to declare martial law or suspend the privilege of the writ of habeas corpus. The parameters for determining the sufficiency of factual basis are: l) actual rebellion or invasion; 2) public safety requires it; the first two requirements must concur; and 3) there is probable cause for the President to believe that there is actual rebellion or invasion. [Lagman v. Medialdea, G.R. No. 231658 (2017)] Q25: What is the extent of the President’s power to pardon? A25: Except in cases of impeachment, or as otherwise provided in this Constitution, the President may grant reprieves, commutations and pardons, and remit fines and forfeitures, after conviction by final judgment. He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress. [1987 CONST, ART. VII, Sec. 19] Q26: Freddie Fretzel was convicted of plunder and sentenced to serve a sentence of reclusion perpetua with the accessory penalty of perpetual absolute disqualification from holding public office. Almost immediately, he was extended a pardon by the sitting President. The pardon reads: “.... Whereas. Freddie Fretzel has publicly committed to no longer seek any elective position or office... He is hereby restored to his civil and political rights..." Freddie decided to run for Mayor of Bacnotan, Ilocos Sur. The incumbent Mayor questioned his qualification, arguing that under the RPC, the pardon must expressly restore his right to run for office, a mere reference to the “restoration of civil and political rights” is insufficient. Is he qualified to run? A26: Yes. All that Articles 36 and 41 of the RPC do is prescribe that, if the President wishes to include in the pardon the restoration of the rights of suffrage and to hold public office, or the remission of the accessory penalty of perpetual absolute disqualification, he or she should do so expressly. Articles 36 and 41 only ask that the President state his or her intentions clearly, directly, firmly, precisely, and unmistakably. The President retains the power to make such restoration or remission, subject to a prescription on the manner by which he or she is to state it. The inclusion of the phrase "(h)e is hereby restored to his civil and political rights," expressly remitted the accessory penalties that attached to the principal penalty of reclusion perpetua. [Rosas-Vidal v. COMELEC, G.R. No. 206666 January 21, 2015] Q27. The Madrid Protocol, concluded in 1989, governs the Madrid System for the International Registration of Marks, which is the centralized system providing a one-stop solution for registering and managing marks worldwide. This System allows the trademark owner to file one application in one language, and to pay one set of fees to protect his mark in the territories of up to 97 member-states. Conformably with its express authority under Section 9 of Executive Order No. 459, the Department of Foreign Affairs (DFA) determined that the Madrid Protocol was an executive agreement. Thus, the President ratified it through an instrument

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of accession. The Intellectual Property Association assailed the constitutionality of such instrument. It argued that the DFA Secretary committed grave abuse of discretion in determining the Madrid Protocol as an executive agreement. Does the Madrid Protocol need to be ratified by the Senate? A27: No. The Madrid Protocol is an executive agreement that does not require legislative concurrence or Senate ratification to be binding, unlike treaties. The registration of trademarks and copyrights has been the subject of executive agreements entered into without the concurrence of the Senate. Some executive agreements have been concluded in conformity with the policies declared in the acts of Congress with respect to the general subject matter. After examining the Declaration of State Policy under the Intellectual Property Code (Republic Act No. 8293, IP Code), the Supreme Court held that the Madrid Protocol was concluded in conformity with the IP Code, a policy declared in acts of Congress with respect to the general subject matter. [Intellectual Property Association of the Philippines Vs. Hon. Paquito Ochoa, et al., G.R. No. 204605. July 19, 2016] Q28: What are the differences between a treaty and an executive agreement? A28: TREATIES

EXECUTIVE AGREEMENTS

formal documents which require ratification with become binding through executive action without the approval of two-thirds of all the members of the need of a vote by the Senate or by Congress the Senate agreements involving political issues or changes merely involve arrangements on the implementation in national policy, as well as those involving of existing policies, rules, laws, or agreements. international agreements of a permanent character generally intended to implement a treaty already enforced or to determine the details of the implementation thereof that do not affect the sovereignty of the State They are concluded: (1) to adjust the details of a treaty; (2) pursuant to or upon confirmation by an act of the Legislature; or (3) in the exercise of the President's independent powers under the Constitution. can create new international obligations

cannot create new international obligations that are not expressly allowed or reasonably implied in the law they purport to implement

Products of the acts of the Executive and the Solely an executive act Senate TREATIES

EXECUTIVE AGREEMENTS

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Same level as a statute


Not of the same level as a statute

A later law or a later treaty takes precedence over Executive agreements that are inconsistent with one that is prior if there is an irreconcilable either a law or a treaty are considered ineffective. conflict.

[Saguisag v. Executive Secretary, G.R. No. 212426, January 12, 2016] Q29: What are the requirements for validity of an international agreement allowing foreign military bases, troops, or facilities in the Philippines? A29: An international agreement allowing foreign military bases, troops, or facilities in the Philippines must be: 1. Under a treaty duly concurred in by the Senate; 2. Ratified by a majority of the votes cast by the people in a national referendum held for that purpose, when the Congress so requires; and 3. Recognized as a treaty by the other contracting State. [1987 CONST ART. XVIII, Section 25] Q30: What is the doctrine of incorporation? A30: Under the doctrine of incorporation, rules of international law form part of the law of the land no further legislative action is needed to make such rules applicable in the domestic sphere. The doctrine of incorporation, as applied in most countries, decrees that rules of international law are given equal standing with, but are not superior to, national legislative enactments. Accordingly, the principle lex posterior derogat priori takes effect — a treaty may repeal a statute and a statute may repeal a treaty. In states where the constitution is the highest law of the land, such as the Republic of 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]. Q31: Does the operative fact doctrine apply to executive acts? A31: Yes. The operative fact doctrine does not only apply to laws subsequently declared unconstitutional or unlawful, as it also applies to executive acts subsequently declared as invalid. Evidently, the operative fact doctrine is not confined to statutes and rules and regulations issued by the executive department that are accorded the same status as that of a statute or those which are quasi-legislative in nature. The Court can apply the operative fact doctrine to acts and consequences that resulted from the reliance not only on a law or executive act which is quasi-legislative in nature but also on decisions or orders of the executive branch which were later nullified. This Court is not unmindful that such acts and consequences must be recognized in the higher interest of justice, equity and fairness. [Hacienda Luisita v. PARC, G.R. No. 171101, November 22, 2011] Q32: What is the faithful execution clause? A32: This is the second sentence of Sec. 17 of Art. VII, of the 1987 CONST pertaining to the duty of the President to "ensure that the laws be faithfully executed." Being the Chief Executive, the President represents the government as a whole and sees to it that all laws are enforced by the officials and employees of his or her department. Under the Faithful Execution Clause, the President has the power to take "necessary and proper steps" to carry into execution the law. The mandate is self-executory by virtue of its being inherently executive in nature and is intimately related to the other executive functions. It is best construed as an imposed obligation, not a separate grant of power. The provision simply underscores the rule of law and,

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corollarily, the cardinal principle that the President is not above the laws but is obliged to obey and execute them. [Ocampo v. Enriquez, G.R. No. 225973, November 08, 2016] Q33: What is judicial power? A33: It includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. [1987 CONST, Art. VIII, Sec. 1] Q34: What is a political question? A34: A political question refers to those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the Legislature or executive branch of the Government. It is concerned with issues dependent upon the wisdom, not legality, of a particular measure. The political question doctrine which, under the classic formulation of Baker v. Carr, applies when there is found, among others: 1. a textually demonstrable constitutional commitment of the issue to a coordinate political department; 2. a lack of judicially discoverable and manageable standards for resolving it or 3. the impossibility of deciding without an initial policy determination of a kind clearly for non- judicial discretion. Q35: Can decisions of the PET be appealed to the Supreme Court? A35: No. The PET is not a separate and distinct entity from the Supreme Court, albeit it has functions peculiar only to the Tribunal. the present Constitution has allocated to the Supreme Court, in conjunction with latter’s exercise of judicial power inherent in all courts, the task of deciding presidential and vicepresidential election contests, with full authority in the exercise thereof. The power wielded by PET is a derivative of the plenary judicial power allocated to courts of law, expressly provided in the Constitution. [Macalintal v. PET, G.R. No. 191618 November 23, 2010] Q36: The JBC submitted three different lists of nominees for the appointment of three Justices of the Sandiganbayan. The President appointed filled in the three vacancies but disregarded the clustering of the nominees, electing to appoint the nominees from the 1st list for all the vacancies. The nominees in the second and third list argue that this is unconstitutional, are they correct? A36: No. The JBC’s act of clustering nominees is impermissible. The power to recommend of the JBC cannot be used to restrict or limit the President's power to appoint as the latter's prerogative to choose someone whom he/she considers worth appointing to the vacancy in the Judiciary is still paramount. As long as in the end, the President appoints someone nominated by the JBC, the appointment is valid. [Hon. Aguinaldo v. Aquino III, G.R. No. 224302, November 29, 2016] Q37: Mr. Samonte was appointed Civil Service Commissioner on February 2, 2011. His term ends seven years later. On October 5, 2014, he was appointed Chairperson of the Commission to replace Mr. Dela Vega, whose full seven-year term ended February 2, 2013. On February 1, 2018, the President appointed Ms. Jayme as Chairperson, whose term would take effect the next day. Mr. Samonte protested, arguing that due to his appointment as Chairperson, his term ends only on October 5, 2020. Is Mr. Samonte correct? A37: No. Mr. Samonte is not correct. In no case can one be a COA member, either as chairman or commissioner, or a mix of both positions, for an aggregate term of more than 7 years. The promotional

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appointment as COA Chairman of Samonte for a stated fixed term of less than seven (7) years is void for violating a clear, but mandatory constitutional prescription. There can be no denying that the vacancy in the position of COA chairman when Dela Vega stepped down in February 2, 2013 resulted from the expiration of his 7-year term. Hence, the appointment to the vacancy thus created ought to have been one for seven (7) years in line with the verba legis approach of interpreting the Constitution. In net effect, the President could not have had, under any circumstance, validly appointed Mr. Samonte as COA Chairman, for a full 7-year appointment, as the Constitution decrees, was not legally feasible in light of the 7-year aggregate rule. Mr. Samonte had already served 4 years of his 7-year term as COA Commissioner. A shorter term, however, to comply with said rule would also be invalid as the corresponding appointment would effectively breach the clear purpose of the Constitution of giving to every appointee so appointed subsequent to the first set of commissioners, a fixed term of office of 7 years. To recapitulate, a COA commissioner like respondent Villar who serves for a period less than seven (7) years cannot be appointed as chairman when such position became vacant as a result of the expiration of the 7-year term of the predecessor. Such appointment to a full term is not valid and constitutional, as the appointee will be allowed to serve more than seven (7) years under the constitutional ban. [Funa v. Villar, G.R. No. 192791 (2012)]. Q38: Ms. Tengco filed a petition praying for a writ of amparo before the Court of Appeals, impleading the President, the Philippine National Police, and the Armed Forces of the Philippines. She alleged that elements of the military had abducted and interrogated her, and after her release, has continued to harass her and her family. The Court of Appeals dropped the President from the suit. Ms. Tengco questions this before the Supreme Court, arguing that the President is no longer immune from suit during his tenure since the constitutional provision granting it is not present in the Constitution. Is Ms. Tengco correct? A38: NO. The presidential immunity from suit remains preserved under the present system of government, albeit not expressly reserved in the Constitution. Settled is the doctrine that the President, during his tenure of office or actual incumbency, may not be sued in any civil or criminal case, and there is no need to provide for it in the Constitution or law. It will degrade the dignity of the high office of the President, the Head of State, if he can be dragged into court litigations while serving as such. Furthermore, it is important that he be freed from any form of harassment, hindrance or distraction to enable him to fully attend to the performance of his official duties and functions. Unlike the legislative and judicial branch, only one constitutes the executive branch and anything which impairs his usefulness in the discharge of the many great and important duties imposed upon him by the Constitution necessarily impairs the operation of the Government. [Rubico v. Macapagal-Arroyo, G.R. No. 183871 (2010)]. Q39: When is an impeachment proceeding deemed initiated? A39: An impeachment proceeding is initiated or begins, when a verified complaint is filed and referred to the Committee on Justice for action. No impeachment proceedings shall be initiated against the same official more than once within a period of one year. [Francisco v. HOR, G.R. No. 160261, November 10, 2003] Q40: What are the grounds for impeachment of the President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman? A40: 1. Culpable violation of the Constitution 2. Treason 3. Bribery 4. Graft and corruption 5. Other high crimes, or 6. Betrayal of public trust.

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Q41: Explain the procedure of impeachment after a verified complaint is filed. A41: It is included in the Order of Business within 10 session days from filing, and referred to the proper Committee within 3 session days thereafter. After hearing, if a majority is reached, the Committee shall submit its report to the House within 60 session days from the referral, together with the corresponding resolution. 1/3 of the all the members of the House is necessary to affirm a favorable resolution of the Committee or override a contrary resolution. [1987 CONST, ART XI, Sec. 3(1)(2)(3)] Q42: Can an officer be impeached without the complaint being referred to the proper Committee? A42: Yes. If the verified complaint is filed by at least one-third of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed. [1987 CONST, ART XI, Sec. 3(4)] Q43: Can the government share the control and supervision of the exploration, development, and utilization of its natural resources with other states or corporations? A43: No. 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 coproduction, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least sixty 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 be provided by law. The State shall protect the nation’s marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens. Q44: What are the three modes of amending the Constitution? A44: Article XVII of the Constitution speaks of three modes of amending the Constitution: 1. Through Congress upon three-fourths vote of all its Members. 2. Through a constitutional convention. 3. Through a people's initiative. The system of initiative as a mode of effecting changes in the Constitution is strictly limited to amendments – not to a revision – thereof. Amendments to the Constitution may likewise be directly proposed by the people through initiative, upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter. Q45: Would a shift from presidential to a parliamentary form of government merely require an amendment to the Constitution? A45: No. It would require a revision, not a mere amendment, of the Constitution. Revision broadly implies a change that alters a basic principle in the constitution, like altering the principle of separation of powers or the system of checks-and-balances. There is also revision if the change alters the substantial entirety of the constitution, as when the change affects substantial provisions of the constitution. On the other hand, amendment broadly refers to a change that adds, reduces, or deletes without altering the basic principle

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involved. Revision generally affects several provisions of the constitution, while amendment generally affects only the specific provision being amended. A change in the structure of government is a revision of the Constitution, as when the three great co-equal branches of government in the present Constitution are reduced into two. This alters the separation of powers in the Constitution. A shift from the present Bicameral-Presidential system to a UnicameralParliamentary system is a revision of the Constitution. Merging the legislative and executive branches is a radical change in the structure of government. The abolition alone of the Office of the President as the locus of Executive Power alters the separation of powers and thus constitutes a revision of the Constitution. Likewise, the abolition alone of one chamber of Congress alters the system of checks-and-balances within the legislature and constitutes a revision of the Constitution. By any legal test and under any jurisdiction, a shift from a Bicameral-Presidential to a UnicameralParliamentary system, involving the abolition of the Office of the President and the abolition of one chamber of Congress, is beyond doubt a revision, not a mere amendment. The petition for initiative on amendments to the Constitution if in truth and in fact a proposal for the revision thereof is barred from the system of initiative upon any legally permissible construction of Section 2, Article XVII of the Constitution. [Lambino v. COMELEC, G.R. No. 174153, October 25, 2006] Q46: What is the “Doctrine of Proper Submission” in connection with proposed amendments to the Constitution? A46: “Doctrine of Proper Submission” means all the proposed amendments to the Constitution shall be presented to the people for the ratification or rejection at the same time, not piecemeal. [Tolentino v. COMELEC, 41 SCRA 702] Q47: Under the 2013 PDAF Article, individual legislators are given a personal lump-sum fund from which they are able to dictate (a) how much from such fund would go to (b) a specific project or beneficiary that they themselves also determine. Is this constitutional? A47: No. It is unconstitutional. The 2013 PDAF Article, insofar as it confers post-enactment identification authority to individual legislators, violates the principle of non-delegability since said legislators are effectively allowed to individually exercise the power of appropriation which is lodged in Congress. The power to appropriate must be exercised only through legislation. Section 29(1), Article VI of the 1987 Constitution states that: "No money shall be paid out of the Treasury except in pursuance of an appropriation made by law." The power of appropriation involves (a) the setting apart by law of a certain sum from the public revenue for (b) a specified purpose. As these two (2) acts under the 2013 PDAF Article comprise the exercise of the power of appropriation, and given that the 2013 PDAF Article authorizes individual legislators to perform the same, undoubtedly, said legislators have been conferred the power to legislate which the Constitution does not, however, allow. Thus, the 2013 PDAF Article, as well as all other forms of Congressional Pork Barrel which contain the similar legislative identification feature is unconstitutional. [Belgica v. Executive Secretary, G.R. No. 208566, November 19, 2013]

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CONSTITUTIONAL LAW 2 Q48: Is there a presumption of regularity in search cases? A48: No. A liberal construction in search and seizure cases is given in favor of the individual whose rights were violated. This is to prevent stealthy encroachment upon, or gradual depreciation of the right to privacy. [Sony Music v Judge Espanol, G.R. No. 156804, March 14, 2005] Q49: What kind of evidence is needed to establish probable cause? A49: As implied by the words themselves, “probable cause” is concerned with probability, not absolute or even moral certainty. The prosecution need not present at this stage proof beyond reasonable doubt. The standards of judgment are those of a reasonably prudent man, not the exacting calibrations of a judge after a full-blown trial. [Microsoft Corporation v. Maxicorp, G.R. No. 140964, September 13, 2004] Q50: What is the knock and announce principle? A50: Police officers are obliged to give the appellant notice, show to her their authority, and demand that they be allowed entry. They may only break open any outer or inner door or window of a house to execute the search warrant if, after such notice and demand, such officers are refused entry to the place of directed search. This is known as the knock and announce principle which is embodied in Anglo-American Law. The method of entry of an officer into a dwelling and the presence or absence of such notice are as important considerations in assessing whether subsequent entry to search and/or arrest is constitutionally reasonable. The proper trigger point in determining, under the knock and announce rule, whether the police waited long enough before entering the residence to execute a warrant, is when those inside should have been alerted that the police wanted entry to execute a warrant. [People v. Huang Zhen Hua, G.R. No. 139301, September 29, 2004] Q51: Differentiate searches incidental to lawful arrests from “stop and frisk” searches. A51: Searches incidental to a lawful arrest require that a crime be committed in flagrante delicto, and the search conducted within the vicinity and within reach by the person arrested is done to ensure that there are no weapons, as well as to preserve the evidence. On the other hand, "stop and frisk" searches are conducted to prevent the occurrence of a crime. "Stop and frisk" search should be used when dealing with a rapidly unfolding and potentially criminal situation in the city streets where unarguably there is no time to secure a search warrant. [People v. Cogaed, G.R. No. 200334, July 30, 2014]. Q52: Patrolman Espiritu and his companions observed during their surveillance that the male person had red eyes and was wobbling like a drunk along the Caloocan City Cemetery, which according to police information was a popular hangout of drug addicts. When this male person tried to avoid the policemen, the latter approached him and introduced themselves as police officers. The policemen then asked the male person what he was holding in his hands. The male person tried to resist. Patrolman Espiritu asked the male person if he could see what said male person had in his hands. The latter showed the wallet and allowed Patrolman Espiritu to examine the same. Pat. Espiritu took the wallet and examined it. He found suspected crushed marijuana residue inside. Was there a valid search? A52: Yes. The search was valid, being akin to a stop-and-frisk. In the landmark case of Terry vs. Ohio, a stopand-frisk was defined as 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). The interest of effective crime prevention and detection allows a police officer to approach a person, in appropriate circumstances and manner, for purposes of investigating possible criminal behavior even though there is insufficient probable cause to make an actual arrest.

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Q53: ISECO, a local power utility, regularly conducted inspections of its meters in and around its franchise area. During one if its inspections, a compliance officer entered the yard of Andring after being allowed in by one of the maids. The officer found a contraption attached to Andring’s meter which tampered with the readings. Andring sued for damages alleging ISECO’s abuse of rights. He alleged that ISECO not only entered his yard but also searched the inside of his home looking for additional contraptions. ISECO argued that the consumer’s contract all consumers sign upon getting a meter allowed them to “read, replace, or dispose” of ISECO property. Andring says that this contract did not give ISECO license to search his home, without a warrant. Is Andring correct? A53: No. If the search is made upon the request of law enforcers, a warrant must generally be first secured if it is to pass the test of constitutionality. However, if the search is made at the behest or initiative of the proprietor of a private establishment for its own and private purposes, as in the case at bar, and without the intervention of police authorities, the right against unreasonable search and seizure cannot be invoked for only the act of private individual, not the law enforcers, is involved. In sum, the protection against unreasonable searches and seizures cannot be extended to acts committed by private individuals so as to bring it within the ambit of alleged unlawful intrusion by the government. [Sesbreño v. Court of Appeals, G.R. No. 160689 March 26, 2014] Q54: Is a tip given by a police informant sufficient to justify a valid warrantless arrest? A54: No. A reliable information alone is not sufficient to justify a warrantless arrest. The rule requires, in addition, that the accused perform some overt act that would indicate that he has committed, is actually committing, or is attempting to commit an offense. [People v. Raquero, G.R. No. 186529, August 3, 2010]. Q55: What is a custodial investigation? A55: Custodial investigation refers to 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. This presupposes that he is suspected of having committed a crime and that the investigator is trying to elicit information or a confession from him. The rule begins to operate at once, as soon as the investigation ceases to be a general inquiry into an unsolved crime, and direction is aimed upon a particular suspect who has been taken into custody and to whom the police would then direct interrogatory questions which tend to elicit incriminating statements. [Jesalva v. People, G.R. No. 187725, January 19, 2011] Q56: What is the legal effect of the violation of the rights in custodial investigations? A56: Art. 3 Section 12(3): “Any confession or admission obtained in violation of this or Section 17 (provision against self-incrimination) hereof shall be inadmissible in evidence against him.” Q57: May the rights under custodial investigation be waived? A57: Yes but it must be in writing and in the presence of counsel. It must be done knowingly and intelligently. [People v Galit,, 135 SCRA 465, March 20, 1985] Q58: What is bail? A58: Bail is a mode short of confinement which would, with reasonable certainty, insure the attendance of the accused at his trial. It usually takes the form of a deposit of money or its equivalent as a guarantee of such attendance. Such deposit is forfeited upon the failure to appear. It is awarded to honor the presumption of innocence and to enable the accused to prepare his defense without being subject to punishment prior to conviction.[Cortes v Catral, A.M. No. RTJ-97-1387, September 10, 1997]

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Q59: Who has a constitutional right to bail? A59: The general rule is, therefore, that any person, before being convicted of any criminal offense, shall be bailable, unless he is charged with a capital offense, or with an offense punishable with reclusion perpetua or life imprisonment, and the evidence of his guilt is strong. Hence, from the moment he is placed under arrest, or is detained or restrained by the officers of the law, he can claim the guarantee of his provisional liberty under the Bill of Rights, and he retains his right to bail unless he is charged with a capital offense, or with an offense punishable with reclusion perpetua or life imprisonment, and the evidence of his guilt is strong. Once it has been established that the evidence of guilt is strong, no right to bail shall be recognized. [Enrile v. Sandiganbayan, G.R. No. 213847, August 18, 2015] Q60: When is admission to bail discretionary? A60: For purposes of admission to bail, the determination of whether or not evidence of guilt is strong in criminal cases involving capital offenses, or offenses punishable with reclusion perpetua or life imprisonment lies within the discretion of the trial court. But, as the Court has held in Concerned Citizens v. Elma , "such discretion may be exercised only after the hearing called to ascertain the degree of guilt of the accused for the purpose of whether or not he should be granted provisional liberty." It is axiomatic, therefore, that bail cannot be allowed when its grant is a matter of discretion on the part of the trial court unless there has been a hearing with notice to the Prosecution. In resolving bail applications of the accused who is charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, the trial judge is expected to comply with the guidelines outlined in Cortes v. Catral: 1. In all cases, whether bail is a matter of right or of discretion, notify the prosecutor of the hearing of the application for bail or require him to submit his recommendation (Section 18, Rule 114 of the Rules of Court, as amended); 2. Where bail is a matter of discretion, conduct a hearing of the application for bail regardless of whether or not the prosecution refuses to present evidence to show that the guilt of the accused is strong for the purpose of enabling the court to exercise its sound discretion; (Section 7 and 8, Rule 114) 3. Decide whether the guilt of the accused is strong based on the summary of evidence of the prosecution; 4. If the guilt of the accused is not strong, discharge the accused upon the approval of the bailbond (Section 19, Rule 114) Otherwise petition should be denied. [Enrile v. Sandiganbayan, supra] Q61: Can special, humanitarian, and compelling circumstances be considered in determining whether a person should be admitted to bail? A61: Yes. This national commitment to uphold the fundamental human rights as well as value the worth and dignity of every person has authorized the grant of bail not only to those charged in criminal proceedings but also to extraditees upon a clear and convincing showing: (1) that the detainee will not be a flight risk or a danger to the community; and (2) that there exist special, humanitarian and compelling circumstances. Thus, an aging Senator, charged with a crime punishable by the penalty of reclusion perpetua, may be granted bail due to his social standing and his poor health indicating that the risk of his flight or escape from this jurisdiction is highly unlikely. [Enrile v. Sandiganbayan, supra] Q62: When does presumption of innocence end? A62: Until the accused is finally proven guilty beyond reasonable doubt, the presumption of innocence stands. Thus, where the conviction by a lower court is still on appeal and it has not yet reached finality, the accused still enjoys such presumption. Re: Judge Angeles, A.M. No. 06-9-545 RTC, January 31, 2008 (citing Mangubat v Sandiganbayan where the court held that respondent Sandiganbayan did not act with grave

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abuse of discretion when it ruled that despite her conviction, the accused still enjoyed presumption of innocence). Q63: What is a writ of amparo? A63: The petition for a writ of amparo is 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 disappearances or threats thereof. For the protective writ of amparo to issue, allegation and proof that the persons subject thereof are missing are not enough. It must also be shown and proved by substantial evidence that the disappearance was carried out by, or with the authorization, support or acquiescence of, the State or a political organization, followed by a refusal to acknowledge the same or give information on the fate or whereabouts of said missing persons, with the intention of removing them from the protection of the law for a prolonged period of time. Simply put, the petitioner in an amparo case has the burden of proving by substantial evidence the indispensable element of government participation. A writ of amparo may lie against a private individual or entity. But even if the person sought to be held accountable or responsible in an amparo petition is a private individual or entity, still, government involvement in the disappearance remains an indispensable element. [Navia v. Pardico, G.R. No. 184467, June 19, 2012] Q64: Are checkpoints legal? A64: Checkpoints are not illegal per se. Thus, under exceptional circumstances, as where the survival of organized government is on the balance, or where the lives and safety of the people are in grave peril, checkpoints may be allowed and installed by the government. Implicit in this proposition is that when the situation clears and such grave perils are removed, checkpoints will have absolutely no reason to remain. Admittedly, the routine checkpoint stop does intrude, to a certain extent, on motorist's right to "free passage without interruption", but it cannot be denied that, as a rule, it involves only a brief detention of travellers during which the vehicle's occupants are required to answer a brief question or two. For as long as the vehicle is neither searched nor its occupants subjected to a body search, and the inspection of the vehicle is limited to a visual search, said routine checks cannot be regarded as violative of an individual's right against unreasonable search.[Valmonte v de Villa, G.R. No. 83988 May 24, 1990] Q65: What are the requisites for a valid classification under the equal protection clause? A65: 1. The classification rests on substantial distinctions; 2. It is germane to the purpose of the law; 3. It is not limited to existing conditions only; and; 4. It applies equally to all members of the same class. [Biraogo v. Philippine Truth Commision, G.R. No. 192935, December 7, 2010] Q66: What is the strict scrutiny standard? A66: According to the strict scrutiny standard, a legislative classification that impermissibly interferes with the exercise of fundamental rights or operates to the peculiar class disadvantage of a suspect class is presumed unconstitutional. The burden is on the government to prove that the classification is necessary to achieve a compelling state interest and that it is the least restrictive means to protect such interest. The strict scrutiny standard was used to assess the validity of laws dealing with the regulation of speech,

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gender, or race as well as other fundamental rights, as expansion from its earlier applications to equal protection. [Disini v. Secretary of Justice, G.R. No. 203335 , February 11, 2014] Q67: Is the exercise of the power of eminent domain subject to judicial review? A67: The (1) adequacy of compensation, (2) necessity of taking, (3) and the fact of the taking being for “public use” are subject to judicial review. However, when the power of eminent domain is exercised directly by Congress (as opposed to by subordinate bodies), the exercise of the power cannot be subject to judicial review. Q68: Upon request of the DPWH, Eibarramendia Corp., segregated a portion of its vast estate in Laguna for the widening of the Maharlika Highway. Eibarramendia set aside a total of 4,000 sqm for the project and caused an encumbrance entitled “road widening” to be annotated on the title. The project ended up utilizing only 1,000 sqm. Eibarramendia segregated the portion actually used and asked the DPWH to pay for it. The DPWH refused, citing Sec. 50 of the Property Registration Decree which allegedly treats the segregation of the lot by Eibarramendia as a donation. Eibdarramendia countered that there was a taking of its private property, entitling it to just compensation. Is Eibarramendia correct? Assuming that there was a taking without the necessary expropriation proceedings, what must the Government do to perfect its title? A68: Yes, there was a taking of its property for a public purpose. There is taking when the following elements are present: 1. The government must enter the private property; 2. The entrance into the private property must be indefinite or permanent; 3. There is color of legal authority in the entry into the property; 4. The property is devoted to public use or purpose; 5. The use of property for public use removed from the owner all beneficial enjoyment of the property. All the elements were present in this case. The Republic’s construction of a road — a permanent structure — on Eibarramendia’s property for the use of the general public is an obvious permanent entry. Given that the road was constructed for general public use stamps it with public character, and coursing the entry through the DPWH gives it a color of legal authority. As a result of petitioner Republic of the Philippines’ entry, Eibarramendia may not enjoy the property as it did before. [Republic v. Ortigas & Co, Ltd. G.R. No.171496 March 3, 2014] To legitimize its possession, the Republic must acquire the property from respondent Eibarramendia by instituting expropriation proceedings or through negotiated sale, which has already been recognized in law as a mode of government acquisition of private property for public purpose. [Republic v. Ortigas & Co, Ltd, supra] Q69: What constitutes just compensation? A69: Just compensation includes the correct determination of the amount to be paid to the owners as well as the payment of such within a reasonable amount of time from its taking. Just compensation must be in some form that embodies certainty of value and of payment (such as government bonds). Q70: Is inflation included in the formula for just compensation? A70: No. the formula for determination of just compensation to landowners does not include the factor for inflation rate, as inflation is properly accounted for through payment of interest on the amount due to the landowner, and through the award of exemplary damages and attorney's fees in cases where there was irregularity in the taking of property. [NPC v. Manalastas, G.R. No. 196140, January 27, 2016]

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Q71. Filipinas Computer Corporation (FCC), a local manufacturer of computers and computer parts, owns a sprawling plant in a 5,000-square meter lot in Pasig City. To remedy the city's acute housing shortage, compounded by a burgeoning population, the Sangguniang Panglungsod authorized the City Mayor to negotiate for the purchase of the lot. The Sanggunian intends to subdivide the property into small residential lots to be distributed at cost to qualified city residents. But FCC refused to sell the lot. Hard pressed to find a suitable property to house its homeless residents, the City filed a complaint for eminent domain against FCC. If FCC hires you as lawyer, what defense or defenses would you set up in order to resist the expropriation of the property? Explain. A71: I will raise the defense that the selection of lot to be expropriated violates due process, because it is arbitrary. Since it is devoted to commercial use, the beneficiaries of the expropriation will not settle there and will instead merely lease out or resell the lot for a profit. (Manotok v. National Housing Authority, 150 SCRA 89 (1987)] Q72. If the Court grants the City's prayer for expropriation, but the City delays payment of the amount determined by the court as just compensation, can FCC recover the property from Pasig City? Explain. A72: The mere delay in the payment of the just compensation will not entitle the Filipinas Computer Corporation to recover the property. Instead, legal interest on the just compensation should be paid (National Power Corp. v. Henson, 300 SCRA 751 [1998].) However, if payment was not made within five (5) years from the finality of judgment in the expropriation case, Filipinas Corporation can recover the property. To be just, the compensation must be paid within a reasonable time. [Republic v. Lim, 462 SCRA 265 (2005)] Q73: Suppose the expropriation succeeds, but the City decides to abandon its plan to subdivide the property for residential purposes having found a much bigger lot, can FCC legally demand that it be allowed to repurchase the property from the City of Pasig? Why or why not? A73: If the lot was expropriated with the condition that it can be used only for low-cost housing, it should be returned to Filipinas Computer Corporation upon abandonment of the purpose [Heirs of Timoteo Moreno v. Mactan-Cebu International Airport Authority, 413 SCRA 502 (2003)]. Q74: When may a law be said to have impaired the obligation of contracts? A74: A law which (1) changes the terms of a legal contract between parties (either in the time or mode of performance) or (2) imposes new conditions or dispenses with those expressed, (3) or authorizes for its satisfaction something different from that provided in its terms. Q75: Section 23 (3) of Republic Act No. 10354 otherwise known as The Responsible Parenthood and Reproductive Health Act of 2012 states that the conscientious objection of a health care service provider based on his/her ethical or religious beliefs shall be respected. However, the conscientious objector shall immediately refer the person seeking such care and services to another health care service provider within the same facility or one which is conveniently accessible: Provided, further, That the person is not in an emergency condition or serious case as defined in Republic Act No. 8344, which penalizes the refusal of hospitals and medical clinics to administer appropriate initial medical treatment and support in emergency and serious cases. Is the imposition on conscientious objectors of the duty to refer the person seeking reproductive care and services to another health care service provider constitutional? A75: No. It is unconstitutional. The obligation to refer imposed by the RH Law violates the religious belief and conviction of a conscientious objector. Once the medical practitioner, against his will, refers a patient

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seeking information on modem reproductive health products, services, procedures and methods, his conscience is immediately burdened as he has been compelled to perform an act against his beliefs. Though it has been said that the act of referral is an opt-out clause, it is, however, a false compromise because it makes pro-life health providers complicit in the performance of an act that they find morally repugnant or offensive. They cannot, in conscience, do indirectly what they cannot do directly. One may not be the principal, but he is equally guilty if he abets the offensive act by indirect participation. In case of conflict between the religious beliefs and moral convictions of individuals, on one hand, and the interest of the State, on the other, to provide access and information on reproductive health products, services, procedures and methods to enable the people to determine the timing, number and spacing of the birth of their children, the Court is of the strong view that the religious freedom of health providers, whether public or private, should be accorded primacy. Accordingly, a conscientious objector should be exempt from compliance with the mandates of the RH Law. If he would be compelled to act contrary to his religious belief and conviction, it would be violative of "the principle of non-coercion" enshrined in the constitutional right to free exercise of religion. [Imbong v. Ochoa, G.R. No. 204819, April 8, 2014] Q76: What does the constitutional exercise of the Congress’ power to reimpose the death penalty entail? A76: It entails the following: “(1) that Congress define or describe what is meant by heinous crimes; (2) that Congress specify and penalize by death only crimes that qualify as heinous in accordance with the definition set in the death penalty bill and/or designate crimes punishable by reclusion perpetua to death in which latter case, death can only be imposed upon the attendance of circumstances duly proven in court that characterize the crime to be heinous in accordance with the definition or description set forth in the death penalty bill; (3) that Congress, in enacting this death penalty bill, be singularly motivated by ‘compelling reasons involving heinous crimes.’” [People v Echegaray, G.R. No. 117472, February 7, 1997] Q77: What is the extent of the authority of the State to regulate public assemblies? A77: The right to peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental. (de Jonge v Oregon, 299 US 353, 364 1937). The Supreme court has previously held, however, that the state possesses reasonable discretion to determine or specify the streets or public places to be used for the assembly in order to secure convenient use thereof by others and provide adequate and proper policing to minimize the risks of disorder and maintain public safety and order. Navarro v Villegas, 31 SCRA 721 (1970 In addition, in Philippine Blooming Mills Employees Organization v Philippine Blooming Mills Co. Inc., 51 SCRA 189 (1973), the Court of Industrial Relations adjudged the petitioners’ concerted act and the occurrence of a temporary stoppage of work a violation of the collective bargaining agreement and upheld the dismissal of some union leaders. The Supreme Court reversed this decision stating that the primacy of human rights (freedom of expression, of peaceful assembly, and of petition for redress of grievances) over property rights has been sustained. Q78: A COMELEC resolution was issued interpreting the limits set by law on the airtime allowed for political ads as an aggregate limit, meaning instead of 120 minutes per national candidate per TV station, each candidate was only allowed 120 minutes of ads for all TV stations. The resolution was passed to “level the playing field” and prevent richer candidates from getting substantially more airtime. Arnold Pedro, candidate in the upcoming elections questioned the validity of the resolution, claiming it unreasonably restricts the guaranteed freedom of speech and of the press. Is Arnold Pedro correct? A78: Yes, the resolution unduly and arbitrarily restricts political speech. Political speech is one of the most important expressions protected by the Fundamental Law. Accordingly, the same must remain unfettered unless otherwise justified by a compelling state interest. The assailed rule on “aggregate-based” airtime limits is unreasonable and arbitrary as it unduly restricts and constrains the ability of candidates and political parties to reach out and communicate with the people. Here, the adverted reason for imposing the

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“aggregate-based” airtime limits – leveling the playing field – does not constitute a compelling state interest which would justify such a substantial restriction on the freedom of candidates and political parties to communicate their ideas, philosophies, platforms and programs of government. And, this is specially so in the absence of a clear-cut basis for the imposition of such a prohibitive measure. [GMA Network v. COMELEC, G.R. No. 205357, September 02, 2014] Q79: What is a content-neutral regulation? What is a content-based regulation? A79: Content-based restraint or censorship refers to restrictions "based on the subject matter of the utterance or speech." In contrast, content-neutral regulation includes controls merely on the incidents of the speech such as time, place, or manner of the speech Q80: What standard of scrutiny is used in determining whether a content-neutral regulation is justified? A80: Intermediate scrutiny. A content-neutral government regulation is sufficiently justified: 1. If it is within the constitutional power of the Government; 2. If it furthers an important or substantial governmental interest; 3. If the governmental interest is unrelated to the suppression of free expression; and 4. If the incident restriction on alleged [freedom of speech & expression] is no greater than is essential to the furtherance of that interest. [Diocese of Bacolod v. COMELEC, G.R. No. 205728 January 21, 2015] Q81: What is the overbreadth doctrine? A81: An exception to the prohibition against third-party standing, the doctrine permits a person to challenge a statute on the ground that it violates the free speech rights of third parties not before the court, even though the law is constitutional as applied to that defendant. In other words, the overbreadth doctrine provides that: Given a case or controversy, a litigant whose own activities are unprotected may nevertheless challenge a statute by showing that it substantially abridges the free speech rights of other parties not before the court. Q82: What is the void for vagueness doctrine? A82: The void-for-vagueness doctrine holds that a law is facially invalid if men of common intelligence must necessarily guess at its meaning and differ as to its application. The vagueness doctrine merely requires a reasonable degree of certainty for the statute to be upheld - not absolute precision or mathematical exactitude. [Spouses Romualdez v. COMELEC, G.R. No. 167011 April 30, 2008] Q83: What is academic freedom? What are its limits? A83: In a number of decided cases, the Court has espoused the concurring opinion of U.S. Supreme Court Justice Felix Frankfurter in Sweezy v. New Hampshire, which enumerated “the four essential freedoms” of a university, in defining the extent of academic freedom: To determine for itself on academic grounds (1) who may teach, (2) what may be taught, (3) how it shall be taught, and (4) who may be admitted to study. An educational institution has the power to adopt and enforce such rules as may be deemed expedient for its government, this being incident to the very object of incorporation, and indispensable to the successful management of the college. It can decide for itself its aims and objectives and how best to attain them, free from outside coercion or interference except when there is an overriding public welfare which would call for some restraint. The schools’ power to instill discipline in their students is subsumed in their academic freedom and that “the establishment of rules governing university-student relations, particularly those pertaining to student

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discipline, may be regarded as vital, not merely to the smooth and efficient operation of the institution, but to its very survival. The Court has always recognized the right of schools to impose disciplinary sanctions, which includes the power to dismiss or expel, on students who violate disciplinary rules. The power of the school to impose disciplinary measures extends even after graduation for any act done by the student prior thereto. [Cudia v. Superintendent, G.R. No. 211362, February 24, 2015]

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ADMINISTRATIVE LAW Q84: What is the Doctrine of Qualified Political Agency? A84: As the President cannot be expected to exercise his control powers all at the same time and in person, he will have to delegate some of them to his Cabinet members. Under this doctrine, which recognizes the establishment of a single executive, 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 the 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. [Carpio v. Executive Secretary, (1992), citing Villena v. Secretary of Interior, (1939)] Q85: What are the tests for a valid delegation of legislative power? A85: The law must be complete in itself and must set forth the policy to be executed (Completeness), and the law must fix a standard, the limits of which are sufficiently determinate or determinable, to which the delegate must conform. [Sufficient Standards] Q86: Distinguish between the subpoena power and contempt power of an administrative agency A86: The administrative agency shall have the power, in any contested case, to require the attendance of witnesses or the production of books, papers, documents and other pertinent data, upon request of any party before or during the hearing upon showing of general relevance. However, unless otherwise provided by law, the agency may, in case of disobedience, invoke the aid of the Regional Trial Court within whose jurisdiction the contested case being heard falls. The Court may punish contumacy or refusal as contempt. [Sec. 13, Book VII, Administrative Code of 1987] Q87: The Civil Service Commission (an administrative agency vested with quasi-judicial powers), upon motion of H, who is one of the parties to a case before the Commission, issued a writ of execution to enforce its order which had become final and executory. The other party, G, opposed and argued that the Commission had no such power to issue a writ of execution. Is G’s contention correct? Explain. A87: NO. The authority to decide cases is inutile unless accompanied by the authority to see that what has been decided is carried out. Hence, the grant to a tribunal or agency of adjudicatory power, or the authority to hear and adjudge cases, should normally and logically be deemed to include the grant of authority to enforce or execute the judgments it thus renders, unless the law otherwise provides. [GSIS v. Civil Service Commission, Oct. 15, 1991] Q88: Under the law, D, the head of the agency, is the officer vested with the power to decide cases brought before him. Under the rules of procedure promulgated by the agency, D is authorized to delegate the power to conduct hearings to his subordinates or persons duly designated by him. Is this rule valid? Explain. A88: Yes. While the power to decide resides solely in the administrative agency vested by law, this does not preclude a delegation of the power to hold a hearing on the basis of which the decision of the administrative agency will be made. The rule that requires an administrative officer to exercise his own judgment and discretion does not preclude him from utilizing, as a matter of practical administrative procedure, the aid of subordinates to investigate and report to him the facts, on the basis of which the officer makes his decisions. It is sufficient that the judgment and discretion finally exercised are those of the officer

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authorized by law. Neither does due process of law nor the requirements of fair hearing require that the actual taking of testimony be before the same officer who will make the decision in the case. As long as a party is not deprived of his right to present his own case and submit evidence in support thereof, and the decision is supported by the evidence in the record, there is no question that the requirements of due process and fair trial are fully met. [American Tobacco Co. v. Director of Patents, (1975)] Q89: Differentiate the binding nature of an administrative rule and an administrative interpretation of a law. A89: A rule is binding on the courts so long as the procedure fixed for its promulgation is followed, and its scope is within the statutory authority granted by the legislature, even if the courts are not in agreement with the policy stated therein or its innate wisdom. On the other hand, administrative interpretation of the law is at best merely advisory, for it is the courts that finally determine what the law means. [Victorias Milling Co., Inc. v. Social Security Commission, (1962)] Q90: What are the requirements on publication for the effectivity of administrative rules and regulations? A90: Pursuant to the ruling in Tañada v. Tuvera (1986) interpreting Article 2 of the New Civil Code, administrative rules and regulations must be published if their purpose is to enforce or implement existing law pursuant also to a valid delegation. It must also comply with Sec. 3, Book VII of the Administrative Code of 1987 which provides that every agency shall file with the University of the Philippines Law Center three (3) certified copies of every rule adopted by it. The requirements of publication and filing with the Office of National Administrative Register (ONAR) were put in place as safeguards against abuses on the part of lawmakers and as guarantees to the constitutional right to due process and to information on matters of public concern and, therefore, require strict compliance. [Republic v. Pilipinas Shell Petroleum Corp., (2008)] (Note: Article 2, NCC has been amended by E.O. 200 to read: Laws shall take effect after fifteen days following the completion of their publication either in the Official Gazette or in a newspaper of general circulation in the Philippines, unless it is otherwise provided.) Q91: What are the requirements for an administrative regulation to have the force of a penal law? A91: For an administrative regulation to have the force of penal law, (1) the violation of the administrative regulation must be made a crime by the delegating statute itself; and (2) the penalty for such violation must be provided by the statute itself. [Perez v. LPG Refillers Association of the Phils., Inc., (2006)] Q92: Does the doctrine of res judicata apply to administrative proceedings? A92: YES. While the Court has declared that the doctrine of res judicata applies only to judicial or quasijudicial proceedings, and not to the exercise of administrative powers, the latter has also been limited to proceedings purely administrative in nature. Therefore, when the administrative proceedings take on an adversary character, the doctrine of res judicata certainly applies. [Heirs of Maximino Derla v. Heirs of Catalina Derla Vda. De Hipolito, Apr. 13, 2011] Q93: When is prior notice and hearing required for a valid exercise of an administrative agency’s rule-making power? A93: As a general rule, notice and hearing, as the fundamental requirements of procedural due process, are essential only when an administrative body exercises its quasi-judicial function. In the performance of its executive or legislative functions, such as issuing rules and regulations, an administrative body need not comply with the requirements of notice and hearing. [Corona v. United Harbor Pilots Association of the Philippines, 1997, citing PHILCOMSAT v. Alcuaz, 1989]. Where the rules and/or rates laid down by an administrative agency applies exclusively to a particular

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party, predicated upon a finding of fact, it is held that in making said finding of fact said agency performed a function partaking of a quasi-judicial character, the valid exercise of which demands previous notice and hearing. When the rules and/or rates laid down by an administrative agency are meant to apply to all enterprises of a given kind throughout the Philippines - they may partake of a legislative character. [Vigan Electric Light Co., Inc. v. Public Service Commission, (1963)] However, in Commissioner of Internal Revenue v. CA (1996), the SC held that when the administrative rule goes beyond merely providing for the means that can facilitate or render least cumbersome the implementation of the law but substantially adds to or increases the burden of those governed, it behooves the agency to accord at least to those directly affected a chance to be heard, and thereafter to be duly informed, before that new issuance is given the force and effect of law. Thus, the due observance of the requirements of notice, of hearing, and of publication should not have been then ignored. (This ruling was later cited in GMA Network, Inc. v. COMELEC, 2014) Note: Under the Administrative Code of 1987, as regards rate-fixing, it is provided in Sec. 9 (2) of Book VII that “in the fixing of rates, no rule or final order shall be valid unless the proposed rates shall have been published in a newspaper of general circulation at least two (2) weeks before the first hearing thereon”. Q94: May a respondent in an administrative case compel that he be furnished with a copy of the report of the investigating committee created to inquire into the charges against him? A94: NO. A respondent in an administrative case is not entitled to be informed of the findings and recommendations of any investigating committee created to inquire into charges filed against him. He is entitled only to the administrative decision based on substantial evidence made of record, and a reasonable opportunity to meet the charges and the evidence presented against him during the hearings of the investigation committee. [Pefianco v. Moral, (2000), citing Ruiz v. Drilon, (1992)] Q95: What are the exceptions to the doctrine of exhaustion of administrative remedies? A95: (1) Purely legal questions. (2) There is grave doubt as to the availability of the administrative remedy (3) Steps to be taken are merely matters of form (4) Administrative remedy not exclusive but merely cumulative or concurrent to a judicial remedy. (5) There are circumstances indicating urgency of judicial intervention (6) Rule does not provide plain, speedy, adequate remedy (7) Resort to exhaustion will only be oppressive and patently unreasonable. (8) Where the administrative remedy is only permissive or voluntary and not a prerequisite to the institution of judicial proceedings. (9) Application of the doctrine will only cause great and irreparable damage which cannot be prevented except by taking the appropriate court action. (10) When it involves the rule-making or quasi-legislative functions of an administrative agency (11) Administrative agency is in estoppel. (12) Doctrine of qualified political agency (respondent is a department secretary whose acts as an alter ego of the President bears the implied and assumed approval of the latter) (13) Subject of controversy is private land in land case proceedings. (14)Violation of due process.

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(15)Where there is unreasonable delay or official inaction that will irretrievably prejudice the complainant (16)Administrative action is patently illegal amounting to lack or excess of jurisdiction. (17) Resort to administrative remedy will amount to a nullification of a claim v. CA (1997); Alzate v. Aldana, (1960)] (18)No administrative review provided for by law (19) Issue of non-exhaustion of administrative remedies rendered moot (20) When the claim involved is small (21) When strong public interest is involved (22)In quo warranto proceedings (23)Law expressly provides for a different review procedure. Note: The exceptions may be condensed into three: (1) Grave abuse of discretion; (2) Pure question of law;or (3) No other plain, speedy, and adequate remedy.

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PUBLIC OFFICERS AND ELECTION LAW Q96: What is a public office? A96: A 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 portion of the sovereign power of government to be exercised by him for the benefit of the public [Fernandez v. Sto. Tomas, G.R. No. 116418 (1995)] Q97: The President issued an Executive Order which states that a member of the Cabinet, undersecretary or assistant secretary or other appointive officials of the Executive Department may, in addition to his primary position, hold not more than two positions in the government and government corporations and receive the corresponding compensation therefor. Is the executive order constitutional? A97: No. the executive order is unconstitutional. Appointive officials shall not hold any other governmental position, unless otherwise allowed by law or his position’s primary functions [1987 CONST, ART IX-B, Sec. 7(2)] Further, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. [1987 CONST, ART VII, Sec. 13(1)] Exceptions: (1) Unless otherwise provided in the Constitution (e.g. Secretary of Justice as ex officio member of the JBC); or (2) Ex Officio positions. Q98: What is a De Facto Officer? A98: A de facto officer is one who derives his appointment from one having colorable authority to appoint, if the office is an appointive office, and whose appointment is valid on its face. He may also be one who is in possession of an office, and is discharging its duties under color of authority, by which is meant authority derived from an appointment, however irregular or informal, so that the incumbent is not a mere volunteer. Consequently, the acts of the de facto officer are just as valid for all purposes as those of a de jure officer, in so far as the public or third persons who are interested therein are concerned. [Funa v. Agra, G.R. No. 191644 February 19, 2013] Q99: Cora was appointed by the President as Solicitor-General. When the Secretary of Justice resigned, Cora was also appointed as Acting Secretary of Justice. Is this appointment valid? A99: No. Cora could not validly hold any other office or employment during his tenure as the Acting Solicitor General, because the Constitution has not otherwise so provided. It was of no moment that Agra’s designation was in an acting or temporary capacity. The text of Section 13 Art VII of the 1987 CONST, plainly indicates that the intent of the Framers of the Constitution was to impose a stricter prohibition on the President and the Members of his Cabinet in so far as holding other offices or employments in the Government or in government-owned or government controlled-corporations was concerned. In this regard, to hold an office means to possess or to occupy the office, or to be in possession and administration of the office, which implies nothing less than the actual discharge of the functions and duties of the office [Funa v. Agra, supra] Q100: What is the rule on incompatibility of office? When is an office incompatible?

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A100: The general rule contained in Article IX-B of the 1987 Constitution permits an appointive official to hold more than one office only if allowed by law or by the primary functions of his position. In the case of Quimson v. Ozaeta, the Court ruled that, [t]here is no legal objection to a government official occupying two government offices and performing the functions of both as long as there is no incompatibility. The crucial test in determining whether incompatibility exists between two offices was laid out in People v. Green whether one office is subordinate to the other, in the sense that one office has the right to interfere with the other. [Public Interest Center v. Elma, G. R. No. 138965 (2006)] Q101: Francisco T. Duque III, Chairman of the CSC, was designated as a member of the Board of Directors or Trustees in an ex officio capacity of the (a) Government Service Insurance System (GSIS); (b) Philippine Health Insurance Corporation (PHILHEALTH), (c) the Employees Compensation Commission (ECC), and (d) the Home Development Mutual Fund (HDMF). Was Duque validly designated to the said Boards in ex-officio capacity? A101: No. Duque was not designated to said governing boards in ex-officio capacity. The term ex officio means "from office; by virtue of office." It refers to an "authority derived from official character merely, not expressly conferred upon the individual character, but rather annexed to the official position." Ex officio likewise denotes an "act done in an official character, or as a consequence of office, and without any other appointment or authority other than that conferred by the office." An ex officio member of a board is one who is a member by virtue of his title to a certain office, and without further warrant or appointment. The ex officio position being actually and in legal contemplation part of the principal office, it follows that the official concerned has no right to receive additional compensation for his services in the said position. The reason is that these services are already paid for and covered by the compensation attached to his principal office. When the CSC Chairman sits as a member of the governing Boards of the GSIS, PHILHEALTH, ECC and HDMF, he may exercise these powers and functions, which are not anymore derived from his position as CSC Chairman, such as imposing interest on unpaid or unremitted contributions, issuing guidelines for the accreditation of health care providers, or approving restructuring proposals in the payment of unpaid loan amortizations. Duque’s designation as member of the governing Boards of the GSIS, PHILHEALTH, ECC and HDMF entitles him to receive per diem, a form of additional compensation that is disallowed by the concept of an ex officio position by virtue of its clear contravention of the proscription set by Section 2, Article IX-A of the 1987 Constitution. This situation goes against the principle behind an ex officio position, and must, therefore, be held unconstitutional. [Funa v. Duque III, G.R. No. 191672 November 25, 2014] Q102: Distinguish a temporary appointment from a permanent appointment. A102: A permanent appointment is extended to a person possessing the requisite qualifications, including the eligibility required, for the position. A permanent appointee enjoys the constitutional guarantee of security of tenure. In the absence of appropriate eligibles and when it becomes necessary in the public interest to fill a vacancy, a temporary appointment shall be issued to a person who meets all the requirements for the position to which he is being appointed except the appropriate civil service eligibility; provided, that such temporary appointment shall not exceed twelve months, but the appointee may be replaced sooner if a qualified civil service eligible becomes available. Q103: Rodrigo was extended a temporary appointment as District Postmaster in the absence of qualified candidates. When Rodrigo was appointed, he did not yet possess the required qualifications for the post. Rodrigo became civil service eligible a year later. Rodrigo then received a letter from the Postmaster General, informing him that he was being replaced since his temporary appointment expired. Rodrigo believes that when he obtained civil service eligibility, his temporary appointment became permanent. Is he correct? A103: No. The fact that private Rodrigo obtained civil service eligibility later did not ipso facto convert his temporary appointment into a permanent one. What is required is a new appointment since a permanent

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appointment is not a continuation of the temporary appointment — these are two distinct acts of the appointing authority. [Province of Camarines Sur v. Court of Appeals, G.R. No. 104639 July 14, 1995] Q104: What are the four groups of officers whom the President shall appoint? A104: There are four (4) groups of officers whom the President shall appoint: First, the heads of the executive departments, ambassadors, other public ministers and consuls, 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; Second, all other officers of the Government whose appointments are not otherwise provided for by law; Third, those whom the president may be authorized by law to appoint; Fourth, officers lower in rank whose appointments the Congress may by law vest in the President alone. [Sarmiento III v. Mison 156 SCRA 549 (1987)] Q105: Distinguish ad-interim appointments from appointments in an acting capacity. A105: Both of them are effective upon acceptance. But ad-interim appointments are extended only during a recess of Congress, whereas acting appointments may be extended any time there is a vacancy. Moreover, ad-interim appointments are submitted to the Commission on Appointments for confirmation or rejection; acting appointments are not submitted to the Commission on Appointments. Acting appointments are a way of temporarily filling important offices but, if abused, they can also be a way of circumventing the need for confirmation by the Commission on Appointments. [Pimentel v. Executive Secretary, G.R. No. 164978, October 13, 2005, citing Joaquin G. Bernas, S.J., The 1987 Constitution of the Republic of the Philippines: A Commentary p. 772 (1996).] Q106: The Civil Service Law prohibits all appointments in the national and local governments or any branch or instrumentality thereof made in favor of the relative of: appointing authority; recommending authority; chief of the bureau or office; or person exercising immediate supervision over the appointee. Up to what civil degree does the prohibition on nepotism apply? A107: Within the third degree of either consanguinity or of affinity. [Sec. 59, Civil Service Law] Q107: What are the exceptions to the prohibition on nepotic appointments? A107: The prohibition on nepotic appointments in the Civil Service Law does not apply if the appointee is: (a) person employed in a confidential capacity (b) teachers (c) physicians (d) member of the Armed Forces of the Philippines Q108: The Constitution restricts the appointment of relatives by the President to certain posts. What is this restriction? A108: 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 and their subsidiaries. [1987 CONST, ART VII., Sec. 13]

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Q109: Who can be considered confidential employees? A109: They occupy positions which are primarily confidential. This denotes not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which insures freedom of intercourse without embarrassment or freedom from misgivings of betrayals of personal trust or confidential matters of state. [De los Santos v. Mallare, G.R. No. L-3881 August 31, 1950] NB: Positions which are either primarily confidential or policy determining are exempt from the requirement of competitive examinations for positions in the civil service. Q110: What is the next in rank rule? A110: In promotions, the appointing authority must automatically consider the employees next in rank as candidates for appointment. The next-in-rank rule is a rule of preference on who to consider for promotion. The rule does not give employees next in rank a vested right to the position next higher to theirs should that position become vacant.81 Appointment is a discretionary power of the appointing authority. So long as the appointee possesses the qualifications required by law, the appointment is valid. [Abad v. Dela Cruz, G.R. No. 207422, March 18, 2015] Q111. Does the Ombudsman have disciplinary power over members of Congress? A111. No. The Ombudsman has no disciplinary power over the following [Sec. 21, RA 6770] (1) Officials who may be removed only by impeachment (2) Members of Congress (3) Members of the Judiciary However, the Office of the Ombudsman has the power to investigate any serious misconduct in office committed by officials removable by impeachment, for the purpose of filing a verified complaint for impeachment, if warranted. [Sec. 22, RA 6770]. Q112: A criminal complaint against a judge was filed with the Office of the Ombudsman. Should the Ombudsman defer action on said criminal complaint against the judge where the same arises from his administrative duties? A112: Yes. The Ombudsman should defer action on the criminal complaint and refer the same to the Supreme Court for determination whether said judge had acted within the scope of their administrative duties. The Ombudsman is duty bound to have all cases against judges and court personnel filed before it, referred to the Supreme Court for determination as to whether and administrative aspect is involved therein. This rule should hold true regardless of whether an administrative case based on the act subject of the complaint before the Ombudsman is already pending with the Court. For, aside from the fact that the Ombudsman would not know of this matter unless he is informed of it, he should give due respect for and recognition of the administrative authority of the Court, because in determining whether an administrative matter is involved, the Court passes upon not only administrative liabilities but also other administrative concerns. [Caoibes v. Ombudsman, G.R. No. 132177. July 19, 2001] Q113. Can private individuals be subject to the jurisdiction of the Sandiganbayan? A113: Yes. In case private individuals are charged as co-principals, accomplices or accessories with the public officers or employees including those employed in government-owned or controlled corporations, they shall be tried jointly with said public officers and employees. [Section 4, P.D. No. 1606].

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Q114: Are courtesy resignations valid? A114: A "courtesy resignation" cannot properly be interpreted as resignation in the legal sense for it is not necessarily a reflection of a public official's intention to surrender his position. Rather, it manifests his submission to the will of the political authority and the appointing power. Resignation is defined as the act of giving up or the act of an officer by which he declines his office and renounces the further right to use it. To constitute a complete and operative act of resignation, the officer or employee must show a clear intention to relinquish or surrender his position accompanied by the act of relinquishment. Resignation implies an expression of the incumbent in some form, express or implied, of the intention to surrender, renounce and relinquish the office, and its acceptance by competent and lawful authority. [Ortiz c. COMELEC, G.R. No. 78957, June 28, 1988]. Q115: What is the Condonation Doctrine? Does this still apply? A115: In essence the condonation doctrine states that since the penalty of removal may not be extended beyond the term in which the public officer was elected for each term is separate and distinct, an elective official's re-election serves as a condonation of previous misconduct, thereby cutting the right to remove him therefor. This is based on the theory that courts may not deprive the electorate, who are assumed to have known the life and character of candidates, of their right to elect officers. In Carpio-Morales v. Court of Appeals [G.R. Nos. 217126-27, November 10, 2015], the Court explicitly abandoned the condonation doctrine. NB: This year’s Chairman, J. Bersamin registered his dissent over the revisiting and abandonment of the condonation doctrine. Q116: The COMELEC issued a resolution creating a joint panel with the DOJ tasked with investigating election anomalies during the 2010 and 2013 elections. A joint fact-finding team was constituted. The fact-finding team recommended that John Michael be subjected to preliminary investigation for electoral sabotage committed in the 2013 elections. The COMELEC en banc adopted a resolution ordering the filing of a case against John Michael. John Michael questions the constitution of a joint fact-finding committee, arguing that the COMELEC had no jurisdiction to conduct a preliminary investigation together with the DOJ. Is he correct? A116: No. Section 2, Article IX-C of the 1987 Constitution enumerates the powers and functions of the COMELEC. Paragraph (6) thereof vests in the COMELE the power to: 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. Under the Omnibus Election Code, the power to conduct preliminary investigation is vested exclusively with the Comelec. The latter, however, was given by the same provision of law the authority to avail itself of the assistance of other prosecuting arms of the government. When the law was amended, instead of a mere delegated authority, the other prosecuting arms of the government, such as the DOJ, now exercise concurrent jurisdiction with the COMELEC to conduct preliminary investigation of all election offenses and to prosecute the same. Q117: Emilio, as a candidate for the position of Provincial Governor, is only authorized to incur an election expense amounting to PhP 4,576,566.00, under par. (a), Section 5 of COMELEC Resolution No. 9615 or otherwise known as the Rules and Regulations Implementing FAIR ELECTION ACT. However, for television campaign commercials alone, Emilio already spent the sum of PhP23,730.784. A petition for disqualification was filed against Emilio for having committed an election offense. Emilio argued that it is clear from COMELEC Resolution No. 9615 that the limit set by law applies only to election expenditures of candidates and not to contributions made by third parties. Is Emilio correct? A117: No. Emilio is wrong. Section 103 of the Omnibus Election Code states that expenditures duly authorized by the candidate or the treasurer of the party shall be considered as expenditures of such

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candidate or political party. By virtue of the legal requirement that a contribution or donation should bear the written conformity of the candidate, a contributor/supporter/donor certainly qualifies as "any person authorized by such candidate or treasurer. The inclusion of the amount contributed by a donor to the candidate’s allowable limit of election expenses does not trample upon the free exercise of the voters’ rights of speech and of expression. As a content-neutral regulation, the law’s concern is not to curtail the message or content of the advertisement promoting a particular candidate but to ensure equality between and among aspirants with "deep pockets" and those with less financial resources. Any restriction on speech or expression is only incidental and is no more than necessary to achieve the substantial governmental interest of promoting equality of opportunity in political advertising. [Ejercito v. COMELEC, G.R. No. 212398, November 25, 2014] Q118: Perfecto is a natural-born Filipino citizen who lost his Philippine citizenship after he was naturalized as citizen of USA. Perfecto applied for repatriation under R.A. No. 9225 before the Consul General of the Philippines in San Franciso, USA. He took an Oath of Allegiance to the Republic of the Philippines on July 10, 2008 and, on even date, an Order of Approval of Citizenship Retention and Re acquisition was issued in his favor. On April 3, 2009, Perfecto executed an Affidavit of Renunciation of his foreign citizenship. On November 30, 2009, Perfecto filed his Certificate of Candidacy (CoC) for the mayoralty post of Kauswagan, Lanao del Norte for the May 10, 2010 national and local elections. A rival mayoralty candidate, however, filed a petition to disqualify Perfecto and/or to cancel his CoC on the ground that Perfecto remained a US citizen because he continued to use his US passport for entry to and exit from the Philippines after executing aforesaid Affidavit of Renunciation. COMELEC issued a Resolution holding that Perfecto's continued use of his US passport effectively negated his April 3, 2009 Affidavit of Renunciation. Thus, he was disqualified to run for public office for failure to comply with the requirements of RA 9225. Is the COMELEC correct? A118: Yes. The COMELEC did not err, nor did it commit grave abuse of discretion, in disqualifying Perfecto from running for public office. Natural-born citizens who reacquired Philippine citizenship under R.A. No. 9225 may now run for public office in the Philippines provided that they: (1) meet the qualifications for holding such public office as required by the Constitution and existing laws; and, (2) make a personal and sworn renunciation of any and all foreign citizenships before any public officer authorized to administer an oath prior to or at the time of filing of their CoC. Perfecto’s Affidavit of Renunciation was deemed withdrawn when he used his US passport after executing said affidavit. Consequently, at the time he filed his CoC on October 1, 2012 for purposes of the May 13, 2013 elections, Perfecto had yet to comply with said second requirement. [Arnado v. COMELEC, G.R. No. 210164, August 18, 2015] Q119: When is substitution of a candidate allowed? A119: If after the last day for filing of the certificates of candidacy, an official candidate of a registered political party (a) dies, (b) withdraws or (c) is disqualified for any cause, he may be substituted by a candidate belonging to and nominated by the same political party. 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 disqualified. The substitute candidate nominated by the political party concerned may file his certificate of candidacy for the office affected 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,

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with the COMELEC.[Sec. 77, B.P. 881]   Q120: What are the grounds to declare a duly registered candidate as a nuisance candidate? A120: When his or her certificate of candidacy has been filed: a. To put the election process in mockery or disrepute or b. To cause confusion among the voters by the similarity of the names of the registered candidates or by other circumstances or acts which clearly demonstrate that the candidate has no bona fide intention to run for the office for which the certificate of candidacy has been filed and thus prevent a faithful determination of the true will of the electorate. Q121: Can a person whose Certificate of Candidacy (CoC) is cancelled or denied due course under Sec. 78 for false material representation be validly substituted? A121: No. He cannot be validly substituted. A cancelled CoC does not give rise to a valid candidacy, there can be no valid substitution of the candidate under Section 77 of the Omnibus Election Code. It should be clear, too, that a candidate who does not file a valid CoC may not be validly substituted, because a person without a valid CoC is not considered a candidate in much the same way as any person who has not filed a CoC is not at all a candidate. [Talaga v. COMELEC, G.R. No. 196804, October 9, 2012] Q122: Does a person who files a certificate of candidacy automatically become a candidate? A122: No. A person who files a certificate of candidacy is not a candidate until the start of the campaign period. A candidate is liable for an election offense only for acts done during the campaign period, not before. Before the start of the campaign period, such election offenses cannot be committed and any partisan political activity is lawful. [Penera v. COMELEC (2009)] Q123: In case the certificate of candidacy (COC) of the candidate who obtained the highest number of votes in the elections is subsequently cancelled, who should be proclaimed as winner? A123: The one who obtained the highest number of votes from among the qualified candidates. A void COC cannot produce any legal effect. Thus, the votes cast in favor of the ineligible candidate are not considered at all in determining the winner of an election. The votes cast in favor of an ineligible candidate do not constitute the sole and total expression of the sovereign voice. The votes cast in favor of eligible and legitimate candidates form part of that voice and must also be respected. As in any contest, elections are governed by rules that determine the qualifications and disqualifications of those who are allowed to participate as players. When there are participants who turn out to be ineligible, their victory is voided and the laurel is awarded to the next in rank who does not possess any of the disqualifications nor lacks any of the qualifications set in the rules to be eligible as candidates. [Maquiling v. COMELEC, G.R. No. 195649, April 16, 2013] Q124: Who is a “fugitive from justice?” A124: Not only those who flee after conviction to avoid punishment, but also those who flee after being charged to avoid prosecution. One is not a fugitive from justice if he left the jurisdiction prior to the filing of a formal charge and the issuance of a warrant of arrest [Rodriguez v. COMELEC, GR No. 120099 (1996)]

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LOCAL GOVERNMENT Q125: May the MMDA confiscate a driver’s license for illegal parking by virtue of an MMDA Circular by the Metro Manila Council prescribing for such penalty? A125: No. The MMDA is an agency created for the purpose of laying down policies and coordinating with the various national government agencies, people’s organizations, non-governmental organizations and the private sector for the efficient and expeditious delivery of basic services in the vast metropolitan area, and all its functions are administrative. It is not a local government unit vested with police power; as such, there is no grant of authority under its Charter to enact ordinances and regulations for the general welfare of the inhabitants of the metropolis. Sec. 5(f) of R.A. No. 7924 authorizes the MMDA to suspend or revoke drivers’ licenses, but only in the enforcement of existing traffic rules and regulations by the Legislature or those agencies to whom legislative powers have been delegated, i.e. the City of Manila. [MMDA v. Garin, G.R. No. 130230, April 15, 2005] Q126: What are the exceptions to barangay conciliation as pre-condition for filing a complaint in court or any government offices? A126: a) Where one party is the government, or any subdivision or instrumentality thereof; b) Where one party is a public officer or employee, and the dispute relates to the performance of his official functions; c) Offenses punishable by imprisonment exceeding 1 year or a fine exceeding P5,000; d) Offenses where there is no private offended party; e) Where the dispute involves real properties located in different cities or municipalities unless the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon; f) Disputes involving parties who actually reside in barangays of different cities or municipalities, except where such barangay units adjoin each other and the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon; g) Such other classes of disputes which the President may determine in the interest of justice or upon the recommendation of the Secretary of Justice [Section 408, LGC] h) Where the accused is under detention; i) Where a person has otherwise been deprived of personal liberty calling for habeas corpus proceedings; j) Where actions are coupled with provisional remedies such as preliminary injunction, attachment, delivery of personal property and support pendent lite; k) Where the action may otherwise be barred by the statute of limitations [Section 412, LGC] l) Any complaint by or against corporations, partnerships or juridical entities, since only individuals shall be parties to Barangay conciliation proceedings either as complainants or respondents; m) Offenses where there is no private offended party; n) Where the dispute arises from the Comprehensive Agrarian Reform Law (CARL); o) Labor disputes or controversies arising from employer-employee relations; p) Actions to annul judgment upon a compromise which may be filed directly in court [Supreme Court Administrative Circular 14-93]

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Q127: Differentiate the grounds for preventive suspension imposed on public officials under the Ombudsman Act and the Local Government Code. A127: The Ombudsman can impose the 6-month preventive suspension to all public officials, whether elective or appointive, who are under investigation. To justify the preventive suspension of a public official under Section 24, R.A. No. 6770, the evidence of guilt should be strong, and a) the charge against the officer or employee should involve dishonesty, oppression or grave misconduct or neglect in the performance of duty; b) the charges should warrant removal from the service; or c) the respondent’s continued stay in office would prejudice the case filed against him. Upon the other hand, in imposing the shorter period of 60 days of preventive suspension prescribed in the LGC on an elective official (at any time after the issues are joined), it would be enough that a) there is reasonable ground to believe that the respondent has committed the act or acts complained of, b) the evidence of culpability is strong, c) the gravity of the offense so warrants, or d) 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. [Hagad v. Gozo-Dadole, G.R. No. 108072, December 12, 1995] Q128: What is the extent of a mayor’s operational supervision and control over the police force, fire protection unit, and jail management personnel assigned in the mayor’s jurisdiction? A128: “Operational supervision and control” shall mean the power to direct, superintend, and oversee the day-to-day functions of police investigation of crime, crime prevention activities, and traffic control in accordance with the rules and regulations promulgated by the Commission. It includes the power to direct the employment and deployment of units or elements of the PNP, through the station commander, to ensure public safety and effective maintenance of peace and order within the locality. [Section 62, R.A. No. 6975 (DILG Act)] Q129: A dump truck of the Municipality of San Fernando, while on its regular route for garbage collection, collided with a passenger jeepney, killing the driver. The heirs of the deceased filed a complaint for damages against the dump truck driver and the municipality. Will it prosper? A129: No. While municipal corporations are subject to suit even in the performance of governmental functions because their charter provided that they can sue and be sued, they are generally not liable for torts committed by them in the discharge of governmental functions and can be held answerable only if it can be shown that they were acting in a proprietary capacity. In permitting such entities to be sued, the State merely gives the claimant the right to show that the defendant was not acting in its governmental capacity when the injury was committed or that the case comes under the exceptions recognized by law. Failing this, the claimant cannot recover. In the case at bar, the municipality cannot be held liable for the torts committed by its regular employee, who was then engaged in the discharge of governmental functions. [Municipality of San Fernando, La Union v. Firme, G.R. No. 52179, April 8, 1991] Q130: What are the grounds for which Commonwealth Avenue may be temporarily closed by the local government unit concerned? A130: Commonwealth Avenue, being a national road, may be temporarily closed during an actual emergency, fiesta celebrations, public rallies, agricultural or industrial fairs, or an undertaking of public works and highways, telecommunications, and waterworks projects, the duration of which shall be specified by the local chief executive concerned in a written order. It may also be closed for athletic, cultural, or civic activities officially sponsored, recognized, or approved by the local government unit concerned. [Section 21, LGC] Q131: Who are disqualified from running for any elective local position? A131: The following persons are disqualified from running for any elective local position:

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(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence; (b) Those removed from office as a result of an administrative case; (c) Those convicted by final judgment for violating the oath of allegiance to the Republic; (d) Those with dual citizenship; (e) Fugitives from justice in criminal or non-political cases here or abroad; (f) Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after the effectivity of this Code; and (g) The insane or feeble-minded. [R.A. No. 7160, Section 40] Q132: Is the conduct of plebiscite required in a legislative apportionment? A132: No. A plebiscite is not required in a legislative apportionment. The Constitution and the Local Government Code expressly require a plebiscite to carry out any creation, division, merger, abolition or alteration of boundary of a local government unit. In contrast, no plebiscite requirement exists under the apportionment or reapportionment provision. Q133: Is the participation of the entire province necessary in a plebiscite regarding the conversion of a component city into a highly urbanized city? A133: Yes. Art X, Sec. 10 provides that No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the Local Government Code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected. Thus the qualified voters of the province, which will be directly affected by the conversion, must be included in the plebiscite [Umali v. COMELEC, G.R. No. 203974 (2014)] Q134: Differentiate a resolution from an ordinance. A134: A resolution is upon a specific matter of a temporary nature while an ordinance is a law that is permanent in character. No rights can be conferred by and be inferred from a resolution, which is nothing but an embodiment of what the lawmaking body has to say in the light of attendant circumstances. [Spouses Yusay v. CA, G.R. No. 156684, April 6, 2011] Q135: What are the additional requirements imposed on the exercise of the power of eminent domain by local government units? A135: 1. Exercised through its chief executive acting pursuant to an ordinance 2. The exercise the power of eminent domain must be for public use, or purpose, or welfare for the benefit of the poor and the landless 3. A valid and definite offer has been previously made to the owner, and such offer was not accepted [Sec. 19, LGC]

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PUBLIC INTERNATIONAL LAW Q136: What is sovereign immunity? A136: The result of independence, territorial supremacy, and equality. A state shall enjoy immunity from the exercise of jurisdiction by another state, except when it has given its consent or submitted voluntarily to the jurisdiction of the state concerned. A state enjoys immunity in respect of itself and its property, from the jurisdiction of the courts of another state subject to the provisions of the present Convention [UN Convention on Jurisdictional Immunities of States and Their Property, 2004]. Q137: The Principality of Syldavia entered into a maintenance contract with SCB Corp., for the maintenance of the Syldavian Embassy’s physical infrastructure. The contract was entered into in 2002 and would be automatically renewed in 2007, if any of the parties failed to cancel at the date of expiry. In 2008, the new Syldavian ambassador terminated the agreement. SCB Corp. sued alleging that the termination was arbitrary and unlawful. Syldavia alleged that as a sovereign state, it cannot be sued as a party-defendant. SCB counters that by entering into a contract, Syldavia waived its immunity. Is SCB correct? A137: No. The mere entering into a contract by a foreign State with a private party cannot be construed as the ultimate test of whether or not it is an act jure imperii (public act) or jure gestionis (private act). There is no dispute that the establishment of a diplomatic mission is an act jure imperii. A sovereign State does not merely establish a diplomatic mission and leave it at that; the establishment of a diplomatic mission encompasses its maintenance and upkeep. Hence, the State may enter into contracts with private entities to maintain the premises, furnishings and equipment of the embassy and the living quarters of its agents and officials. It is therefore clear that the Principality of Syldavia was acting in pursuit of a sovereign activity when it entered into a contract with SCB for the upkeep of the embassy. [Republic of Indonesia v. Vinzon, G.R. No. 154705 (2003)] Q138: What is the rule on use of force in international relations? A138: All [United Nations] Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations [Article 2(4), UN Charter]. Q139: What is the rule on self-defense in international relations? A139: Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security [Article 51, UN Charter]. Q140: What are the privileges of consular officers? A140: 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.

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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 41, Vienna Convention on Consular Relations]. 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 43, Vienna Convention on Consular Relations]. Q141: What is a jus cogens norm or peremptory norm of international law, and what is the status of a treaty provision which conflicts with such a norm? A141: A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law […] [a] peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character [Article 53, Vienna Convention on the Law of Treaties] Q142: What are the privileges and immunities of a diplomatic agent? A142: Privileges: 1. 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 29, Vienna Convention on Diplomatic Relations (VCDR)]. 2. The private residence of a diplomatic agent shall enjoy the same inviolability and protection as the premises of the mission. 3. His papers, correspondence and, except as provided in paragraph 3 of article 31, his property, shall likewise enjoy inviolability [Article 30, VCDR]. Immunities: 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; c. An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.

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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. Q143: What is extradition? The principles of dual criminality and specialty? A143: The practice of extradition enables one state to hand over to another state suspected or convicted criminals who have fled to the territory of the former. It is based upon bilateral treaty law and does not exist as an obligation upon states in customary law. It is usual to derive from existing treaties on the subject certain general principles, for example that of double criminality, i.e. that the crime involved should be a crime in both states concerned, and that of specialty, i.e. a person surrendered may be tried and punished only for the offence for which extradition had been sought and granted [Shaw, International Law]. Q144: Who are stateless persons? A144: For the purpose of this Convention, the term “stateless person” means a person who is not considered as a national by any State under the operation of its law (Article 1(1), 1954 Convention Relating to the Status of Stateless Persons). Q145: What is the legal status of the territorial sea, of the air space over the territorial sea, and its bed and subsoil? A145: The sovereignty of a coastal State extends beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea. The breadth of the territorial sea shall not exceed 12 nautical miles, measured from baselines determined in accordance with the UNCLOS. The sovereignty of a State extends to the air space over the territorial sea as well as to its bed and subsoil. Q146: What is a low-tide elevation? A146: According to Article 13 of the UNCLOS, a low-tide elevation is a naturally formed area of land which is surrounded by and above water at low tide but submerged at high tide. Where a low-tide elevation is situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the mainland or an island, the low-water line on that elevation may be used as the baseline for measuring the breadth of the territorial sea. Where a low-tide elevation is wholly situated at a distance exceeding the breadth of the territorial sea from the mainland or an island, it has no territorial sea of its own. Except where a low-tide elevation falls within the breadth of a territorial sea generated from a high-tide feature or mainland, it generates no territorial sea of its own. Necessarily, such a low-tide elevation is not entitled to an exclusive economic zone or continental shelf [Philippines v. China, 2016]. Q147: How is an island defined under international law? A147: According to Article 121 of the UNCLOS, an island is a naturally formed area of land, surrounded by water, which is above water at high tide. Save for the cases of rocks, marine entitlements of islands, such

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as a territorial sea, contiguous zone, exclusive economic zone, and continental shelf, are determined in accordance with the provisions of the Convention. Q148: How is a rock defined under international law? A148: Rocks are features which cannot sustain human habitation or economic life of their own. (UNCLOS, Art. 121(3)) Rocks are not entitled to an exclusive economic zone or continental shelf. Rocks are a category of island. Rocks may be composed of solid rock or matter that is rock-like in nature [Philippines v. China, 2016]. In the Territorial and Maritime Dispute case between Nicaragua and Colombia, the International Court of Justine ruled that a miniscule protrusion of coral qualified as a rock since it satisfied the definition under Art. 121(3) of the UNCLOS. Q149: What are the rights, jurisdiction, and duties of the coastal State with respect to the Exclusive Economic Zone? A149: According to Art. 56 of the UNCLOS, the coastal state has sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone. The coastal state has jurisdiction with regard to (1) the establishment and use of artificial islands, installations and structures, (2) marine scientific research, (3) the protection and preservation of the marine environment. The EEZ shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured. (UNCLOS, Art. 57) Q150: What is the difference between a rock and island in international law? A150: Unlike islands, rocks cannot sustain human habitation or economic life. In Philippines v. China, the Permanent Court of Arbitration ruled that to sustain human habitation is to provide that which is necessary to keep humans alive and healthy over a continuous period of time, according to proper standard. It further ruled that to sustain economic life is to sustain means to provide that which is necessary not just to commence, but also to continue, an activity over a period of time in a way that remains viable on an ongoing basis. While islands are generally entitled to the marine entitlements of territorial sea, exclusive economic zone, and continental shelf, rocks are not. Q151: What is the jurisdiction of the International Court of Justice (ICJ)? A151: According to Art. 36 of the ICJ Statute, the jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force. In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court. Q152: Define a treaty under international law. A152: Under Article 2 of the Vienna Convention on the Law of Treaties, a treaty means 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 and whatever its particular designation.

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Q153: What is an erga omnes obligation? A153: Obligations erga omnes are obligations of a State owed to international community as a whole. These obligations are the concerns of all States, and for whose protection all States have a legal interest. Examples include the right to self-determination and the protection of basic human rights. Q154: Who are entitled to immunity from local jurisdiction? A154: 1. Diplomatic agent and members of the family of the diplomatic agent forming part of his household, who are not nationals of the receiving state; 2. Administrative and technical staff As to criminal jurisdiction, members of the administrative and technical staff of the diplomatic mission, as well as members of their families forming part of their respective households, who are not nationals of or permanent residents in the receiving state; As to civil and administrative jurisdiction, immunity shall not extend to acts performed outside the course of their duties; and 3. Service staff: Members of the service staff of the diplomatic mission, who are not nationals of or permanent residents in the receiving state, with respect to acts performed in the course of their duties [VCDR, art. 37]. Q155: Define innocent passage. A155: Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal State if in the territorial sea it engages in any of the following activities: (a) any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations; (b) any exercise or practice with weapons of any kind; (c) any act aimed at collecting information to the prejudice of the defence or security of the coastal State; (d) any act of propaganda aimed at affecting the defence or security of the coastal State; (e) the launching, landing or taking on board of any aircraft; (f) the launching, landing or taking on board of any military device; (g) the loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State; (h) any act of willful and serious pollution contrary to this Convention; (i) any fishing activities; (j) the carrying out of research or survey activities; (k) any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal State; (l) any other activity not having a direct bearing on passage. Q156: What are the two elements of customary international law?

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A156: International customary rules are accepted as binding as a result from the combination of two elements: the established, widespread, and consistent practice on the part of States; and a psychological element known as the opinion juris sive necessitates (opinion as to law or necessity). Implicit in the latter element is a belief that the practice in question is rendered obligatory by the existence of a rule of law requiring it. [Poe-Llamanzares v. COMELEC, G.R. No. 221697 (2016)] Q157: What is the precautionary principle? A157: In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation [Principle 15, Rio Declaration] The Rules of Procedure for Environmental Cases provides that when there is a lack of full scientific certainty in establishing a causal link between human activity and environmental effect, the court shall apply the precautionary principle in resolving the case before it. [Rule 20, Sec. 1] In applying the precautionary principle, the following factors, among others, may be considered: (1) threats to human life or health; (2) inequity to present or future generations; or (3) prejudice to the environment without legal consideration of the environmental rights of those affected. [Rule 20, Sec. 2] In the recent case of International Service for the Acquisition of Agri-Biotech Applications, Inc., v. Greenpeace [G.R. No. 209271, December 8, 2015] the Court clarified that For purposes of evidence, the precautionary principle should be treated as a principle of last resort, where application of the regular Rules of Evidence would cause in an inequitable result for the environmental plaintiff — (a) settings in which the risks of harm are uncertain; (b) settings in which harm might be irreversible and what is lost is irreplaceable; and (c) settings in which the harm that might result would be serious. When these features— uncertainty, the possibility of irreversible harm, and the possibility of serious harm — coincide, the case for the precautionary principle is strongest. When in doubt, cases must be resolved in favor of the constitutional right to a balanced and healthful ecology. [NB: The Court later overturned its 2015 decision in a Resolution on nine separate Motions for Reconsideration on the ground of mootness, since the field testing of BT Talong which was sought to be enjoined had already expired] Q158: The Rome Statute accords the International Criminal Court jurisdiction over which crimes? A158: The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes: (a)

The crime of genocide;

(b)

Crimes against humanity;

(c)

War crimes;

(d)

The crime of aggression. [Rome Statute, Art. 5]

Political Law Pre Week 2017.pdf

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