Barnotes 2011 Pil

V. PUBLIC INTERNATIONAL LAW01. What is Public International Law?ANSWER: Public International law is that branch of public law consisting of a body of legal principles, norms and processes which regulates the relations of States and other international persons and governs their conduct affecting the interest of the international community as a whole. It is used interchangeably with “law of nations”.

02. Distinguish International law from Municipal lawANSWER:1. -IL is not imposed but adopted by states as a common rule of action among

themselves.-ML is issued by a political superior for observance by those under its authority;

2. -IL is derived from such sources as international customs, conventions or general principles of law.-ML consists mainly of enactments from law-making authority of the state;

3. -IL applies to relations inter se of states and other international persons.-ML regulates the relations of individuals among themselves or with their own state;

4. -in IL they are resolved through state-to-state transactions.-Violations of ML are redressed through local administrative and judicial processes;

5. -in IL there is collective responsibility because it attaches directly to the state and not to its nationals.-Breaches of ML entail only individual responsibility;

Concepts03. What is a Jus Cogens norm?ANSWER: A Jus Cogens norm is a peremptory norm of general international law 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 of the same character. It is by its nature binding on every State. The following are norms considered jus cogens in character: 1) Laws on genocide 2) Principle of non-racial discrimination 3) Principle of self – determination 4) Laws penalizing crimes against humanity 5) prohibition against slavery, slave trade 6) Laws penalizing piracy.

04. What is obligation erga omnes?Erga Omnes is an obligation of every State towards the international community

as a whole. All states have a legal interest in its compliance, and thus all States are entitled to invoke responsibility for breach of such an obligation. By the nature of jus cogens norms they embody erga omnes obligations. Even as all erga omnes obligations may not be in the nature of jus cogens norms, jus cogens norms necessarily embody erga omnes obligations. Examples of erga omnes obligations are outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination.

05. What is the concept of Aeguo Et Bono?ANSWER: This for the application of the principle of what is good and just also known as the rule on equity. It is subject to the requirement that parties to the dispute have to agree thereto as provided in Article 38 (1) of the Statute of the international Court of Justice.

06. What is the Supremacy Clause under Article 103 of the UN Charter?ANSWER: The Supremacy Clause under Article 103 of the UN Charter provides that in the event of a conflict between the obligations of the Members of the UN under the present UN Charter and their obligations under any other international agreements, their obligation under the present Charter shall prevail.

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Examples of obligations of Members of the UN under the present UN Charter are: sovereign equality of States, the duty to settle international disputes in a peaceful manner, prohibition against the threat or use of force against the territorial integrity or political independence of any state, duty to fulfill in good faith the obligations assumed by them in accordance with the present Charter, universal respect for, and observation of, human rights and fundamental freedoms without distinction as to race, sex, language or religion.

07. Distinguish “hard law” from “soft law”.ANSWER: “Hard law” is used to designate a norm or rule of conduct accepted and recognized by the international community of states as a whole, as a source of law binding on them. It produces obligations which when breached gives rise to international responsibility and, consequently, to reparation.

“Soft law” has no binding force and pertains to a statement or declaration of principles with moral force on the conduct of states but no normative character and without intent to create enforceable obligations. “Soft law” is an expression of non-binding norms, principles and practices that influences state behavior. It does not fall into any of the categories of international law set forth in Article 38, Chapter III of the 1946 Statute of the International Court of Justice. Certain declarations and resolutions of the UN General Assembly fall under this category. Most notable is the UN Declaration of Human Rights which the Supreme Court enforced in various cases. It is resorted to in order to reflect and respond to the changing needs and demands of constituents of certain international organizations like the World Health Organization. (Pharmaceutical and Health care Association of the Philippines vs. Duque III, 535 SCRA 265)

08. Is the World Health Assembly (WHA) Resolutions, absolutely prohibiting advertisements and promotions of breast milk substitutes considered as part of the law of the land?

ANSWER: NO. Unlike what has been done with the International Code of Marketing of Breastmilk Substitutes (ICMBS) whereby the legislature enacted most of the provisions into law which is the Milk Code, the subsequent WHA Resolutions have not been adopted and cannot be considered as part of the law of the land that can be implemented by executive agencies without the need of a law enacted by the legislature. Consequently, legislation is necessary to transform the provisions of the WHA Resolutions into domestic law. (Ibid.)

09. What is customary international law?ANSWER: Custom or customary international law means "a general and consistent practice of states followed by them from a sense of legal obligation (opinion juris)," which statement contains the two basic elements of custom: the material factor, that is, how states behave, and, the psychological or subjective factor, that is, why they behave the way they do. Customary international law is deemed incorporated in our domestic system. (Ibid.)

10. What do you understand by the phrase "generally accepted principles of international law"?ANSWER: "Generally accepted principles of international law" refers to the norms of general or customary international law which are binding on all states, i.e., renunciation of war as an instrument of national policy, the principle of sovereign immunity, a person's right to life, liberty and due process, and pacta sunt servanda, among others. They are primary sources of international law because they have the “character of jus rationale” and “are valid through all kinds of human societies(Ibid.)

Sources of International Law11. What are the sources of international law?Answer:1. Primary Sources -They are formal sources because they are the methods by

which norms of international law are created and recognized.


a. International Treaties and Conventions, whether general or particular, establishing rules expressly recognized by the contesting state. They are sources of international law only when they have been concluded by numerous states for the purpose of confirming, establishing or abolishing a rule of international law. Example: Vienna Convention on the Law of Treaties.*Treaties may be considered as direct source of international law when concluded by a sizeable number of states, and is reflective of the will of the family of nations.*Bilateral treaties are sources of particular international law but may become primary sources when different contract treaties are of the same nature, containing practically uniform provisions, and are concluded by substantial number of States.

b. International Customs, as evidence of a general practice accepted as law. It is a set of practices which has grown up between states and has come to be accepted as binding by mere fact of persistent usage over a long period of time. They preclude rules which are binding only on a few or a small number of States. Examples: prohibition against slavery and the prohibition against torture*Elements of International Customs:1) General practice by a number of states, characterized by uniformity and consistency2) Opinio juris, or recognition of that practice as a legal norm and therefore obligatory.3) Duration- repeated over a considerable period of time

c. General Principles of Law - these are rules derived mainly from natural law, which are observed by the majority of civilized states because they are believed to be good and just. Examples: due process, res judicata, prescription, estoppel, pacta sunt servanda

2. Secondary Sources – they are subsidiary means for the determination of rules of law. They are to be regarded merely as authoritative evidence of the state of law.

a. Decisions of International Tribunals , andb. Teachings and writings of highly qualified publicists

Requisites: 1) writings must be fair and impartial, and 2) must be an acknowledged authority in the field.The application of judicial decisions and teachings of publicists by

the International Court of Justice is subject to two limitations:1) it is restricted to the parties to the dispute and is not extended to

any other case, including a case involving the same parties, and2) these decisions may also be applied as “subsidiary means for the

determination of rules of law,” which is quite distinct from the status of sources of law. They serve to evidence or ascertain the existence or status of a principle as law.

12. Are resolutions and declarations of the UN General Assembly a source of international law?ANSWER: YES. The emerging view is that resolutions and declarations of the General Assembly have obligatory effect upon member States and are thus considered a source of international law.. This thesis finds support in Article 3(10 of the UN Charter empowering the General Assembly, inter alia, to initiate studies and make recommendations for the purpose of encouraging the progressive development of international law or its codification. Thus, if a resolution or declaration of the General Assembly is accepted by the majority of the UN members, then the resolution or declaration develops into a customary law which under Article 38 of the Statute of the ICJ, is considered as primary source of international law.

PUBLIC INTERNATIONAL LAW / P 04 13. How may international law become a part of domestic law?1. Doctrine of Incorporation- The Incorporation Clause (Article II, Section 2, PC)

prescribes that the Philippines “adopts the generally accepted principles of international law as a part of the law of the land.” It is a formal recognition of general international law a “part of the law of the land.” The incorporation method applies when, international law is deemed to have the force of domestic law. No further legislative action is needed to make such rules applicable in the domestic sphere.

For these principles of international law to become part of national law they must be of customary or general international law, i.e. binding on all States. It further decrees that rules of international law are given equal standing with, but are not superior to, national legislative enactments.

"Generally accepted principles of international law" refers to the norms of general or customary international law which are binding on all states, i.e., renunciation of war as an instrument of national policy, the principle of sovereign immunity, a person's right to life, liberty and due process, and pacta sunt servanda, among others. They are primary sources of international law because they have the “character of jus rationale” and “are valid through all kinds of human societies. (Pharmaceutical, supra )

2. Doctrine of Transformation- (either through legislative enactment or under the Treaty Clause) This doctrine holds that the generally accepted rules of international law are not per se binding upon the state but must first be transformed into domestic law through a constitutional mechanism such as local legislation by the lawmaking body. Treaties may also become part of the law of the land pursuant to the Treaty Clause (Article VII, Section 21, PC) which is a process of transforming a treaty or international convention into national law.*A customary norm becomes “part of the law of the land” by virtue of the Incorporation Clause. A customary norm is incorporated into the national law under the Incorporation Clause. *A conventional rule is transformed into a “valid and effective “ domestic clause under the Treaty Clause of the Constitution.

To be internalized into national law and before they may be applied in Philippine jurisdiction, norms and principles of objective international law must comply with the foregoing methods of internalization. Thus, treaties or conventional international law must go through a process prescribed by the Constitution for it to be transformed into municipal law that can be applied to domestic conflicts.

In Pharmaceutical, supra, it was ruled that the World Health Assembly (WHA) Resolutions, absolutely prohibiting advertisements and promotions of breast milk substitutes are not considered as part of the law of the land. Unlike what has been done with the International Code of Marketing of Breastmilk Substitutes (ICMBS) whereby the legislature enacted most of the provisions into law which is the Milk Code, the subsequent WHA Resolutions have not been adopted and cannot be considered as part of the law of the land that can be implemented by executive agencies without the need of a law enacted by the legislature. Consequently, legislation is necessary to transform the provisions of the WHA Resolutions into domestic law.

14. How are conflicts between International law and Municipal Law resolved?1. The basic rule is to reconcile or harmonize the apparent conflict, thereby giving effect

to both.2. If the conflict is irreconcilable, apply the law of the forum (lex forei):

a) where the conflict is elevated to an international tribunal, then international law is more paramount because international law provides the standard by which to determine the legality of a State’s conduct;


b) where the controversy is brought before a local tribunal, the tribunal will uphold the superiority of its municipal law.

3. In Philippine jurisdiction:a. Philippine Constitution vs international law principle: the Constitution prevails.

Rationale: Art. VIII, Sec 5(2) (a) of the Philippine Constitution empowers the Supreme Court to declare a treaty or executive agreement unconstitutional. Also in Secretary of Justice vs. Lantion, GR No.139465, January 18, 2000, it was held that in states where the Constitution is the highest law of the land, both statutes and treaties may be invalidated iF they are in conflict with the Constitution.

b. Exercise of police power: the municipal law prevails.c. If International Law (treaties or conventions) is in conflict with a statute: A treaty

has two aspects- as an international agreement between states, and as a municipal law for the people of each state to observe. Under the Doctrine of Incorporation the rules of international law are given equal standing with, but are not superior to, national legislative enactments in the municipal sphere. Hence, a treaty may repeal a statute and a statute may repeal a treaty. Thus, the principle of lex posterior derogat priori, that which comes last in time will be upheld by the local tribunal. The Constitution also authorizes the nullification of a treaty not only when it conflicts with the fundamental law, but also when it runs counter to an act of Congress. (Lim vs Arroyo, GR No. 151455 April 11, 2002)

15. What may be subject of Public International Law?ANSWER: A subject of international law is an entity that has rights and responsibilities under the law. It has an international personality that it can directly assert rights and be held directly responsible under the law of nations. It can be a proper party in transactions involving the application of the law of nations among members of international communities. The subjects are:1. Direct subjects- a) States b) colonies and dependencies c) mandates and trust

territories; belligerent communities d) The Vatican e) the United nations; international administrative bodies and f) to a certain extent, individuals.

While international law recognizes the individual natural person as subject, it is not however by reason of general international law or international custom. His personality is derived from the collective will of States expressed in an international convention. The individual becomes a subject of international law by reason of conventional international law, not on account of customary international law. (Magallona, Merlin M., The Supreme Court and International Law: Problems and Approaches in Philippine Practice. UP Law Center Institute of International Legal Studies, 2010)

2. Indirect subjects – a) international organizations b) individuals; and c) corporations.

3. Incomplete subjects – a) protectorates b) federal states c) mandated and trust territories

16. What are objects of international law?ANSWER: A person or thing in respect of which rights are held and obligations assumed by the subject. It is not directly governed by the rules of international law. Its rights are received and its responsibilities imposed indirectly through the instrumentality of an intermediate agency.State Sovereignty17. What is the Doctrine of Sovereign Immunity of States? What are the basis of immunity from suits of a foreign state?ANSWER: The Doctrine of Sovereign Immunity of States is a universally recognized principle which exempts a state from the jurisdiction of other States including the right not to be sued in the courts of another without its consent or unless consent is waived.


State immunity includes not only exemption of the State’s property from taxation or attachment wherever the property is located but also the exemption of its public vessels from being searched, detained, seized by any State. The basis of immunity from suits of a foreign state are the twin principles of independence and equality of states pursuant to the maxim “par parem habet non imperium” (an equal has no dominion over an equal)(Republic of Indonesia vs. Vinzon, 405 SCRA 126)

State Immunity from Suit18. What is State Immunity from Suit? Does it apply to foreign governments? Can the right to state immunity be waived?ANSWER: State immunity from suit means that the state may not be sued without its consent. But consent to suit does not include consent to attachment of property for foreign sovereign. The doctrine applies to foreign government. When a foreign state wishes to invoke sovereign immunity, it secures an executive endorsement of its claim of immunity from the Department of Foreign Affairs, and the determination made by the Executive Department is a political question which is conclusive on Philippine courts. It may also file a motion to dismiss on the ground of lack of jurisdiction over its person. The right to state immunity may be waived but it does not mean that it is admitting liability. (Philippine Rock Industries, Inc. vs. Board of Liquidators, 180 SCRA 71) It means that the State in allowing itself to be sued is merely giving the plaintiff the opportunity to prove its case but the State does not waive its lawful defenses.19. What are the two kinds of sovereign immunity?ANSWER: The two kinds of sovereign immunity are 1) absolute immunity and 2) restrictive immunity. Under absolute immunity, all acts of state, be they governmental or proprietary, are protected by sovereign immunity. Under restrictive immunity, a State liable to suit only in the exercise of its proprietary acts and does not apply to acts performed in its sovereign or governmental function. 20. What do you understand by the principle of Restrictive State Immunity from Suit?ANSWER: State immunity from suit extends only to governmental acts (jure imperii) and does not cover private, commercial and proprietary act (jure gestiones). The restrictive application of State immunity is proper only when the proceedings arise out of commercial transaction of the foreign sovereign, its commercial activities or economic affairs. Stated differently, a State may be said to have descended to the level of an individual and can thus be deemed to have tacitly given its consent to be sued only when it enters into business contracts. It does not apply where the contracts relate to the exercise of its sovereign function. Thus, where the questioned transaction dealt with the improvements on the wharves in the naval station at Subic Bay, the projects are an integral part of the naval base which is devoted to the defense of both the US and the Philippines, indisputably a function of government of the highest order; they are not utilized for, nor dedicated to commercial or business purposes. (USA vs. Ruiz, 136 SCRA 487 and DA vs. NLRC, 227 SCRA 693) 21. Who are covered by the Doctrine of State Immunity? State its rationale.ANSWER: A state enjoys immunity from the exercise of jurisdiction (legislative, executive, judicial) by another state, unless it has given consent, waived its immunity, or voluntarily submitted to the jurisdiction of the court concerned. Also, the state’s immunity extends to the Head of State, who is the personification of the state, and to diplomatic representatives, in order to uphold their dignity as representatives of their respective states and to allow them free and unhampered exercise of their functions.

Likewise, under Article 105 of the UN Charter, the United Nations, its Organs, Specialized Agencies and other International organizations and its Officers shall enjoy privileges and immunities as are necessary for the independent exercise of their functions. Rationale: to secure them legal and practical independence in fulfilling their duties (Lasco vs. UN revolving Fund for Natural Resources Exploration, 241 SCRA 681) and to shield the affairs of international organizations, in accordance with international


practice, from political pressure or control by the host country, and to ensure the unhampered performance of their functions. (International Catholic Migration vs. Calleja, 190 SCRA 130)

22. When is a suit against a public official deemed to be a suit against the State?

ANSWER: While the doctrine of state immunity appears to prohibit only suits against the state without its consent, it is also applicable to complaints filed against public officials for acts allegedly done in the performance of their official duties. The rule is that the suit must be regarded as one against the State where the satisfaction of the judgment against the public official concerned will require the State to perform a positive act, such as appropriation of the amount necessary to pay the damages awarded to the plaintiff.

The rule does not apply where the public official is clearly being sued for acts that are unlawful and injurious to the rights of others. Public officials are not exempt, in their personal capacity, from liability arising from the acts committed in bad faith…Neither does it apply where the public official is clearly being sued not in his official capacity but in his personal capacity, although the acts complained of may have been committed while he occupied a public position.

As regards petitioner DOH, the defense of immunity from suit will not avail despite its being an unincorporated agency of the government, for the only causes of action directed against it are preliminary injunction and mandamus. Under Section 1, Rule 58 of the Rules of Court, preliminary injunction may be directed against a party or a court, agency or a person. Moreover, the defense of state immunity does not apply in causes of action which do not seek to impose a charge or financial liability against the State. (Lansang vs. CA, 326 SCRA 259 and DOH vs. Pharmawealth, Inc., GR No. 169304, March 13, 2007)

20. The Republic of Indonesia represented by its Minister Counsellor entered into a Maintenance Agreement with JV, sole proprietor of Vinzon Trade and Services. The agreement stated that JV maintain specified equipment at the embassy Main Building, including the official residence of the Ambassador. But prior to the expiration of the 4-year contract, the Indonesian Embassy terminated the agreement. JV filed a complaint against the Republic of Indonesia, the Ambassador and the Minister Counsellor, who in turn filed a motion to dismiss invoking sovereign immunity from suit. JV filed an Opposition contending that: (1) the Republic of Indonesia expressly waived its immunity because of a paragraph in the contract stating that any legal action arising out of the agreement shall be settled according to the laws of the Philippines and by a specified court in the Philippines; (2) that the actual physical maintenance of the premises of the diplomatic mission is no longer a sovereign function of the State; and (3) that the Ambassador and the Minister Counsellor can be sued and held liable in their private capacity for tortuous acts done with malice and bad faith. Decide.ANSWERS: (1) The existence alone of the paragraph in the contract is not necessarily a waiver of sovereign immunity from suit. The aforesaid provision contains language not necessarily inconsistent with sovereign immunity. On the other hand, such provision may also be meant to apply where the sovereign party elects to sue in the local courts, or otherwise waives its immunity by any subsequent acts. The applicability of Philippine laws must be deemed to include Philippine laws in its totality, including the principle recognizing sovereign immunity. Hence, the proper court may have no proper action, by way of settling the case, except to dismiss it. Likewise, the Solicitor General states that “it was not a waiver of their immunity from suit but mere stipulation that in the event they do waive their immunity, Philippine laws shall govern the resolution of any legal action arising out of the agreement and the proper court in Makati City shall be the agreed venue thereof.”(2) 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 of air conditioning units, generator sets, electrical facilities, water heaters and water pumps of the Indonesian Embassy and the official residence of the Indonesian Ambassador.


(3) The acts of the Ambassador and the Minister Counsellor in terminating the agreement is not covered by the exceptions provided in Article 31 of the Vienna Convention which provides:

1. A diplomatic agent shall enjoy immunity from 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 purpose 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;

© an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.

xxx xxx xxx The said act may fall under subparagraph (c) thereof, but said provision clearly

applies only to a situation where the diplomatic agent engages in any professional or commercial activity outside official functions, which is not the case herein. (The Republic of Indonesia vs. James Vinzon, GR No. 154705, June 26, 2003)

21. Are officers of the Asian Development Bank, including experts and consultants performing mission for the Bank, entitled to immunity from legal process?

ANSWER: YES. But the immunity granted to officers and staff of the ADB is not absolute. It is limited to acts performed in an official capacity, except when the Bank waives the immunity. The immunity cannot cover the commission of a crime such as slander or oral defamation in the name of official duty. Officials of international organizations enjoy “functional” immunity, that is, only those necessary for the exercise of their functions of the organization and the fulfilment of its purposes. In other words, the officials and employees of the ADB are subject to the jurisdiction of the local courts for their private acts, notwithstanding the absence of a waiver of immunity. (Liang vs. People, 355 SCRA 125)

Act of State Doctrine22. What is the so-called Act of State Doctrine?ANSWER: A doctrine emanating from the right of equality among nations which means that a State cannot, in anyway, question the validity of the official acts of another state insofar as these acts are performed within the sphere of the latter State’s own jurisdiction and not contrary to accepted rules of public international law. The act of state doctrine is one of the methods by which States prevents their national courts from deciding disputes which relate to the internal affairs of another State, the other two being immunity and non-justiciability. It is an avoidance technique that is directly related to the State's obligation to respect the independence and equality of other States by not requiring them to submit to adjudication in a national court or to settlement of their disputes without their consent. It requires the forum court to exercise restraint in the adjudication of disputes relating to legislative or other governmental acts which a foreign State has performed within its territorial limits.

The parameters of the use of the act of state doctrine were clarified in Banco Nacional de Cuba vs. Sabbatino (378 U.S. 398; 84 S.Ct. 293) There, the U.S. Supreme Court held that international law does not require the application of this doctrine nor does it forbid the application of the rule even if it claimed that the act of state in question violated international law. Moreover, due to the doctrine’s peculiar nation-to-nation character, in practice the usual method for an individual to seek relief is to exhaust local remedies and then refer to the executive authorities of his own state to persuade them to champion his claim in diplomacy or before an international tribunal. (PCGG vs. Sandiganbayan, 530 SCRA 13)


23. What is the Principle of Auto-limitation?ANSWER: Under the principle of auto-limitation, any State may by its consent, express or implied, submit to a restriction of its sovereign rights. There may thus be a curtailment of what otherwise is a plenary power. (Reagan v. CIR, GR No. L-2637, December 27, 1969)Right of Legation24. What is agreationANSWER: It is a practice of the States before appointing a particular individual to be the chief of their diplomatic mission in order to avoid possible embarrassment. It consists of two acts: The inquiry, usually informal, addressed by the sending State regarding the acceptability of an individual to be its chief of mission; and the agreement also informal, by which the receiving State indicates to the sending State that such person, would be acceptable.25. What is letter of credence?ANSWER: This is the document by which the envoy is accredited by the sending State to the foreign State to which he is being sent. It designates his rank and the general object of his mission, and asks that he be received favourably and that full credence be given to what he says on behalf of his State.26. What is a letter patent?ANSWER: The appointment of a consul is usually evidenced by a commission, known as letter patent, issued by the appointing authority of the sending State and transmitted to the receiving State through diplomatic channels.27. What are the privileges and immunities of diplomatic representatives?ANSWER: 1) Personal inviolability – members of the diplomatic mission shall not be liable for

any form of arrest or imprisonment2) Inviolability of premises - premises, furnishings and means of transport shall be

immune from search, seizure, attachment or execution.3) Diplomatic agents are immune from criminal civil or administrative liability4) Archives or documents shall be inviolable5) A diplomatic agent is exempted to give evidence as a witness6) Receiving state shall protect official communication and official correspondence

of diplomatic mission7) Exemption from general duties and taxes including custom duties with certain

exceptions.8. Receiving State shall ensure all members of diplomatic mission freedom of

movement and travel.9. Use of flag and emblem of sending State on premises of receiving StateNOTE: For Exceptions to the privileges and immunities, see Question 20 (3) above.

28. Are consuls entitled to immunities and privileges?ANSWER: YES, but not to the same extent as those enjoyed by diplomatic officials. Like diplomats, consuls are entitled to: 1) inviolability of their correspondence, archives and other documents; 2) freedom of movement and travel; 3)immunity from jurisdiction for acts performed in their official capacity; and 4) exemption from certain taxes and custom duties. However, consuls are liable to: 1) arrest and punishment for grave offenses; and 2) may be required to give testimony, subject to certain exceptions. The consular offices are immune only: 1) with respect to the part where the consular work is being performed; and may be expropriated by the receiving state for purposes of national defense or public utility.

Extradition & Deportation29. What is the difference if any between extradition and deportation?ANSWER: The following are the differences between extradition and deportation:


1) According to purpose, extradition is effected for the benefit of the state to which the person being extradited will be surrendered because he is a fugitive criminal in that state, while deportation is effected for the protection of the state expelling an alien because his presence is not conducive to the public good. 2) According to basis, extradition is effected on the basis of an extradition treaty or upon the request of another state, while deportation is the unilateral act of the state expelling an alien. 3) According to its effect upon the alien, in extradition, the alien will be surrendered to the state asking for his extradition, while in deportation, the undesirable alien may be sent to any state willing to accept him.

30. What is the principle of double criminality? What id the purpose of the principle?ANSWER: Under the principle of double criminality, extradition is available only when the act is an offense in the two countries involved in extradition. The principle of double criminality is satisfied even if the act was not punishable in the requested state at the time of its occurrence if it was criminal at the time the request was made.

The purpose of the principle of double criminality is to ensure each state that it can rely on reciprocal treatment and that no state will use its processes to surrender a person for contract which it does not characterize as criminal.

31. State A and State B entered into an extradition treaty, which provided that extradition may be granted irrespective of the date when the offense was committed. State A asked that the accused be extradited for swindling and perjury committed before the treaty took effect. Accused argued that his extradition for offenses committed before the effectivity of the extradition treaty violates the prohibition against ex post facto laws. Is the contention of the accused legally tenable?ANSWER: NO. The prohibition against ex post facto law applies to penal laws only. The extradition treaty is not a criminal statute. (Wright vs. CA, 235 SCRA 341)

32. Discuss the procedure for extradition. ANSWER: Upon receipt of the petition for extradition and its supporting documents, the judge must study them and make, as soon as possible, a prima facie finding whether (a) they are sufficient in form and in substance, (b) they comply with the Extradition Treaty and Law, and (c) the person sought is extraditable. At his discretion, the judge may require the submission of further documentation, or may personally examine the affiants and witnesses of the petitioner. If, in spite of this study and examination, the petition may be dismissed at the discretion of the judge.

On the other hand, if the presence of prima facie case is determined, then the magistrate must immediately issue a warrant for the arrest of the extradite, who is at the same time summoned to answer the petition and to appear at scheduled summary hearings. Prior to the issuance of the warrant, the judge must not inform or notify the potential extradite of the pendency of the petition, lest the latter be given the opportunity to escape and frustrate the proceedings.

After a potential extradite has been arrested or placed under the custody of the law, bail may be applied for and granted as an exception, only upon a clear and convincing showing (1) that, once granted bail, the applicant will not be a flight risk or a danger to the community and (2) that there exist special, humanitarian or compelling circumstances including, as a matter of reciprocity, those cited by the highest court in the requesting state when it grants provisional liberty in extradition cases therein. (Government of the United States of America vs. Hon. Purganan, GR No. 148571, September 44, 2002)

33. Is the right to due process guaranteed in extradition proceedings?ANSWER: YES. Potential extraditees are entitled to the rights of due process and to fundamental fairness. Due process does not always call for a prior opportunity to be heard. A subsequent opportunity is sufficient due to the flight risk involved. Indeed, available during the hearings on the petition and the answer is the full chance to be heard


and to enjoy fundamental fairness that is compatible with the summary nature of extradition. (Government of the United States of America vs. Hon. Purganan, GR No. 148571, September 44, 2002)

Right to Bail and Due Process in Extradition Proceedings34. Is the constitutional provision on the right to bail under Section 14 of the Constitution as

well as Section 114 of the Rules of Court applicable to extradition cases? Is the right to due process available to potential extraditees?

ANSWER: In Government of the United States of America vs. Hon. Purganan, GR No. 148571, September 44, 2002, it was held that the said provisions apply only when a person has been arrested and detained for violation of Philippine criminal laws. It does not apply to extradition proceedings because extradition courts do not render judgments of conviction or acquittal. Extradition proceedings are separate and distinct from the trial for the offenses for which the respondent is charged. He should apply for bail before the courts trying the criminal cases against him, not before the extradition court.

NEW RULING: However, in Government of Hongkong Special Administrative Region vs. Judge Olalia, GR 153675, April 19, 2007, the Supreme Court ruled that a potential extraditee may be granted bail on the basis of clear and convincing evidence that the person is not a flight risk and will abide with all the orders and processes of the extradition court. While our extradition law does not provide for the grant of bail to an extradite, there is no provision prohibiting him or her filing a motion for bail, a right guaranteed not only by the Constitution, but also by international convention, to which the Philippines is a party. The Philippines, being a signatory to the 1996 UN General Assembly which adopted the International Convention on Civil and Political Rights, is under obligation to make available to every person under detention such remedies which safeguard their fundamental rights to liberty. If bail can be granted in deportation cases, there is no justification why it should not also be allowed in extradition cases. Likewise, considering that the Universal Declaration of Human Rights applies to deportation cases, there is no reason why it cannot be invoked in extradition cases. After all, both are administrative proceedings where the innocence or guilt of the person detained is not an issue. 35. If there is no extradition treaty between the state of refuge and the state seeking the

fugitive’s return, how may the latter acquire jurisdiction over him? Explain.ANSWER: The state may still secure his surrender, but not as a matter of right. In the interest of international comity or courtesy, the state of refuge may accede to the former’s request and surrender the fugitive to it.36. What is the principle of asylum? Does this principle apply in the Philippines?ANSWERS: This is the power of the state to allow an alien who has sought refuge from prosecution or persecution to remain within the territory and under its protection. This has never been recognized as a principle in international law. Asylum may either be: 1) Territorial, where it exists only if stipulated in a treaty, or justified by established usage and depends on the liberal attitude of the receiving state on grounds of “territorial supremacy,” or 2) Diplomatic, if granted only by virtue of treaty stipulation, or where established usage allows it, or when the life or liberty of the person is threatened by imminent violence.

Generally, diplomatic asylum in the Philippines cannot be granted except to members of the official or personal household of diplomatic representatives. On humanitarian grounds, however, refuge may be granted to fugitives whose lives are in imminent danger from mob violence but only during the period when active danger persists.Treaties37. May a treaty or conventional rule qualify as a norm of jus cogens character?ANSWER: NO. A treaty or conventional rule may not qualify as a jus cogens because such norm is binding on all states, whereas a treaty rule binds only the states that are parties to it and even in the event that all states are parties to a treaty, they are entitled to


terminate or withdraw from the treaty. A jus cogens norm is characterized as a norm of general international law which by its nature is binding on every state.38. May a treaty violate international law?ANSWER: Yes, a treaty may violate international law if it conflicts with peremptory norm or jus cogens of international law. Jus cogens norm is defined as a norm of general international law accepted and recognized by the international community as a 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 of the Vienna Convention on the Law of Treaties provides that a treaty is void if at the time of its conclusion, it conflicts with jus cogens norm. Article 54 of the same Convention, if a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes voids and terminates.39. Can a treaty or international agreement be invalidated by Philippine courts or amended by

subsequent law?ANSWER: YES. The Constitution of the Philippines has clearly settled that an international agreement may be invalidated by Philippine Courts. Sec.2 of Article VIII thereof provides that the Supreme Court may not be deprived of its jurisdiction to review, revise, reverse, modify or affirm on appeal, certiorari or writ of error as the law or the rules of court may provide, final judgments and decrees of inferior courts in all cases in which the constitutionality or validity of any treaty, law or ordinance or executive order or regulation is in question. In other words, the Court authorizes the nullification of a treaty, not only when it conflicts with the fundamental law, but, also, when it runs counter to an act of Congress. Also, the provisions of a treaty are always subject to qualification or amendment by a subsequent law, or that it is subject to the police power of the State. (Lim vs. Macapagal-Arroyo, GR No. 151445, April 11, 2002)

40. May a state party to a treaty by unilateral act declare it terminated, or withdraw from it?

ANSWER: NO. Even on grounds provided for by the Vienna Convention on the Law of Treaties, either of these cannot be done unilaterally. This Convention requires a procedure, beginning with notification to the other parties to the treaty as to the measure it proposes to take. If no party has raised any objection, the proponent state may carry out the measure it has proposed by a formal instrument signed by the Head of State or of Government and the same is communicated to the other parties.

41. Assuming that the other country-party to a treaty is agreeable to the termination of such treaty, can the President alone without the concurrence of the Senate abrogate the same? Can such termination be subject to judicial review?

ANSWER: YES. The authority of the Senate over treaties is limited to concurrence. The Constitution is silent as to the participation of the Senate in the abrogation of a treaty. There being no express constitutional provision regulating the termination of treaties, it is presumed that the power of the President over treaty agreements and over foreign relations includes the authority to terminate treaties. The termination of a treaty by the President without the concurrence of the Senate is not subject to constitutional attack, there being no Senate authority to that effect. Moreover, the jurisdiction of the courts over a treaty is only with respect to questions of its constitutionality or validity. The question should involve the constitutionality of a treaty or its validity in relation to a statute. It does not pertain to the termination of a treaty.

42. (a) Distinguish signing of a treaty from its ratification.(b) Does mandamus lie to compel the Office of the Executive Secretary and Department

of Foreign Affairs to transmit the signed text of a treaty (Rome Statute) to the Senate of the Philippines for ratification?

ANSWERS: (a) The signing of a treaty and ratification are two separate and distinct steps in the treating-making process- the signature is primarily intended as a means of authenticating the instrument and the symbol of the good faith of the parties, usually performed by the


(b) state’s authorized representatives, while ratification is the formal act by which a state confirms and accepts the provisions of a treaty concluded by its representatives, and sis generally held to be an executive act undertaken by the head of state or of the government. Under the Constitution, the power to ratify is vested in the President, subject to the concurrence of the Senate. The role of the Senate, however, is limited only to giving or withholding concurrence its consent, or concurrence, to its ratification. (b) NO. The Philippines is not bound under treaty law and international law to ratify a treaty which it has signed – it is the ratification that binds the state to the provisions thereof. There is no legal obligation to ratify a treaty, but the refusal must be based on substantial grounds and not on superficial or whimsical reasons. The President has the discretion even after the signing of the treaty by the Philippine representative whether or not to ratify the same. It is within the authority of the President to refuse to submit a treaty to the Senate or, having secured its consent for its ratification, refuse to ratify it. (Pimentel vs. Office of Executive Secretary, 462 SCRA 622)

43. May a non-signatory State become a party to a treaty?ANSWER: YES. A non-signatory State may become a party to a treaty through the process of “adhesion.” Thus, upon invitation or permission of the contracting parties, a third party who did not participate or who did not ratify on time, may be bound by a treaty. Other States my also be bound by the terms of a treaty if linked by the most favored nation clause, under which a contracting State entitled to the clause may claim the benefits extended by the latter to another State in a separate agreement. Also, if the treaty is merely a formal expression of customary international law, or where the treaty expressly extends benefits to non-signatory States, States not originally parties to the agreement may become bound.44. Explain the concepts of Pacta Sunt Servanda, Rebus Sic Stantibus & most favored nation

clause.ANSWER:

1) Pacta Sunt Servanda - treaties must be performed in good faith.2) Ribus Sic Stantibus – (things remaining as they are) a party to a treaty is

discharged in the event a change of circumstances occurs which renders the fulfilment of the treaty grossly unjust, oppressive and iniquitous.

3) Most favored nation clause – a clause in the treaty that grants to the other party equal treatment (not less favourable) that has been granted or may be granted to the most favored other country.

Law of the Sea45. What are the four conventions adopted by the UN Conference on the Law of the Sea?ANSWER: The four conventions adopted by the UN Conference on the Law of the Sea are:

1. Convention on the High seas (1962)2. Convention on the Continental Shelf (1964)3. Convention on the Territorial Sea and Contiguous Zone (1964)4. Convention on Fishing and Conservation of Living resources of the High

Seas (1966)Only the Convention on the High Seas is “generally declaratory of established

principles of international law; but the other three provide evidence of the generally accepted rules bearing on the subject matter, the cogency of this depending in part on the number of ratification.46. a) What do you understand by the Archipelago Doctrine?

b) How does the Doctrine, as embodied in Article I of the Philippine Constitution, differ from

the version of the 1982 UN Convention on the Law of the Sea?ANSWERS:a) The archipelagic doctrine emphasizes the unity of the land and waters by defining

an archipelago either as a group of islands and islets or body of waters studded PUBLIC INTERNATIONAL LAW / P 14

with islands. For this purpose, it requires that baselines be drawn by connecting the appropriate points of the outermost islands to encircle the islands within the archipelago. The waters on the landward side of the baselines regardless of breadth or dimension are considered merely internal waters.

b) Article I of the Philippine Constitution treats the vast areas of water between islands as internal waters and therefore not subject to the right of innocent passage. The 1982 UNCLOS version calls such areas “archipelagic waters” and are subject to the right of innocent passage through passages designated by the archipelago concerned. But, where the establishment of a straight baseline in accordance with Article 4 of the UNCLOS has the effect of enclosing as internal waters areas which previously had been considered as part of the territorial sea or of the high seas (referred to as archipelagic waters), the right of innocent passage shall exist in those waters, through passages designated by the archipelago concerned.

47. What is the right of innocent passage?ANSWER: It is the navigation through the territorial sea for the purpose either of traversing the sea without entering the internal waters, or of proceeding to internal waters, or of making for the high seas from internal water. It includes stopping and anchoring, but only in so far as the same are incidental to ordinary navigation or are rendered necessary by force majeure or by distress. Passage is innocent as long as it is not prejudicial to the peace, good order or security of the coastal state. Submarines are required to navigate on the surface and to show their flag. Foreign fishing vessels must observe duly published rules and regulations of the coastal state and rules of international law relating to transport and navigation. The coastal state can prevent these vessels from fishing in the territorial sea.

48. What is transit passage?ANSWER: It is the right to exercise freedom of navigation and overflight solely for the purpose of continuous and expeditious transit through the straits used for international navigation, i.e., between two areas of the high seas or between two exclusive economic zones. All ships and aircraft enjoy the right to transit passage.

49. What is a baseline? The straight baseline method?ANSWERS: It is a line from which the breadth of the territorial sea, the contiguous zone and the exclusive economic zone is measured in order to determine the maritime boundary of the coastal state.

The straight baseline method is used by the Philippines in drawing its baseline from which the breadth of the territorial sea is measured. This is done by joining the appropriate points through straight lines. This method is applied in cases where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity.

50. What is a continental shelf? ANSWER; It comprises the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin or to a distance of 200 nautical miles beyond the baseline from which the breadth of the territorial sea is measured if the edge of the continental margin does not extend up that that distance. However, if the coastal state succeeds in its application for an extended continental shelf, it may extend to not more than 350 nautical miles.51. Distinguish the territorial sea from the internal waters of the Philippines. ANSWER: Territorial sea is an adjacent belt of sea with a breadth of twelve nautical miles measured from the baselines of a state and over which a state has sovereignty

(Articles 2 and 3 of the Convention on the Law of the Sea) Ships of all states enjoy the


right of innocent passage through the territorial sea. (Article 14 of the Convention on the Law of the Sea) Internal waters, on the other hand, are the waters on the landward side of baselines from which the breadth of the territorial sea is calculated. The internal waters of the Philippines consist of the waters around, between and connecting the islands of the Philippine Archipelago, regardless of their breadth and dimensions, including the waters in bays, rivers and lakes. (Section 1, Article I, Philippine Constitution)) No right of innocent passage for foreign vessels exists in the case of internal waters.

52. What is the contiguous zone? ANSWER: Contiguous zone is a zone contiguous to the territorial sea and extends up to twelve (12) nautical miles from the territorial sea and over which the coastal state may exercise control necessary to prevent infringement of its customs, fiscal immigration or sanitary laws and regulations within its territory or territorial sea. (Article 33 of the Convention on the Law of the Sea)

53. What is the Exclusive Economic Zone? ANSWER: The exclusive economic zone is a zone extending up to 200 nautical miles from the baseline of a state. It gives the coastal state sovereign rights overall economic resources of the sea, seabed and subsoil .

54. What are the rights of the coastal state in the Exclusive economic Zone? ANSWER:A) Sovereign rights: 1) for the purpose of exploring and exploiting, conserving and managing the living and non-ling resources in the super adjacent waters of the seabed and the resources of the seabed and subsoil 2) with respect to the other activities for the economic exploitation an exploration of the EEZ, such as production of energy from water currents and winds B) Jurisdictional rights: 1) with respect to establishment and use of artificial islands 2) as to protection and preservation of the marine environment and 3) over marine scientific research. C) Other rights and duties provided for in the Law of the Sea Convention.

55. What is the new archipelagic baseline law of the Philippines? What is its implications, if any, upon the Philippine territorial claims over Sabah and the Kalayaan Islands Group?

ANSWER: The new archipelagic baseline law of the Philippines is embodied in RA 9522 which effectively amended Section 1 of RA 3046, entitled “An Act to Define the Baselines of the Territorial Sea of the Philippines,” as amended by Section 1 of RA 5446. RA 9522 adopts the “regime of islands” formula in dealing with our claim over Spratlys. The new law would operate as a repeal of the Sabah provision of the previous baseline law, RA 5446 (the only legislative re-affirmation of Philippine sovereignty over Sabah), resulting in the derogation of the other territories clause of the Constitution. (Merlin M. Magallona, “A Framework for the Study of National Territory: A Statement of the Problem” IBP Journal, September 2008.)

56. What is the Regime of Islands Doctrine enunciated in RA 9522, or the new archipelagic baseline law of the Philippines? What are the arguments for and against the doctrine.

ANSWER: The Regime of Islands Doctrine as embodied in the new archipelagic baseline law of the Philippines modifies the Archipelagic Principle by excluding two disputed territories, namely, the Kalayaan Islands Group and the Scarborough Shoal from the country’s archipelagic baseline but they remain as parts of Philippine territory and considered as regime of islands consistent with Article 121 of the United Nations Convention on the Law of the Seas (UNCLOS). It adopts a mix formula that combines archipelagic baselines for the main archipelago, and “regime of islands” for the disputed islands with the option to fix normal baselines in the islands we claim in the disputed Spratly islands group. Under the “regime of islands” principle, baselines will be drawn on an island-to-island basis rather than a package deal-type “archipelago.”

Among the arguments in support of the doctrine are, according to Dean Raul Pangalangan: (1) the uncontested claims over islands comprising Philippine territory are


enclosed within the archipelagic baselines, while it retains the option to draw individual baselines for islands within the disputed zone; (2) it translates the Philippine claim of title over Kalayaan Island Group and projects it to the sea; and (3) it protects Philippine claim over contested islands because it discards attempts to incorporate Kalayaan Islands Group and Scarborough Shoal in drawing up modern baselines ensuring avoidance of “unnecessary ire and retribution” from China, Taiwan, Brunei and Vietnam; and, as per pronouncement of Senator Miriam Santiago (1) it avoids conflicting base points with other claimants; (2) it increases the size of the country’s archipelagic waters including economic zones; and (3) it preserves the natural shape of the archipelago.

The arguments against the principle are basically on constitutional grounds: (1) it is unconstitutional because the Constitution proclaims us as an archipelago and we have no choice but to adopt archipelagic baseline to maintain the integrity of our land and maritime territory (2) the Constitution clearly calls for archipelagic line and does not allow us to carve out the Spratly islands from the Philippine archipelago. RA 9522, being a mere statute, cannot exempt a few islands from the archipelagic baseline without inviting direct challenge before the Supreme Court, and (3) according to Dean Magallona, it would trash into pieces our sovereign claim over the regime of internal water around the Kalayaan Islands Group of the Province of Palawan, including the seabed, subsoil and airspace.

International Human Rights57. What are human rights in international relations? How may human rights be classified?ANSWERS: International human rights are liberties or freedoms, immunities and benefits accepted as guaranteed rights and giving rise to obligations under international law. Under the United Nations Charter, the international community of States has recognized the general obligation on “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.”

Human rights may either be individual rights or collective or national rights. They may also be classified into first generation of human rights, ie, civil and political rights, second generation, ie, economic, social and cultural rights, or third generation, ie, right to peace, healthy environment and the right to development.

58. What is the “International Bill of Human Right”? Does international protection of human rights entail criminal liability?

ANSWERS: “International Bill of Human Rights” is the designation used to refer to three instruments of the international protection of human rights, taken together, namely: (1) the Universal Declaration of Human Rights based on the human rights provisions of the UN Charter, (2) the International Covenant of Civil and Political Rights, and (3) the International Covenant on Economic, Social and Cultural Rights.

YES. Certain categories of acts of violation of human rights, such as genocide, war crimes and crimes against humanity within the jurisdiction of the International Criminal Court (ICC) are characterized as grave offenses under international law and are defined as crimes. They entail criminal liability on the part of the individual perpetrator.

59. Under international law, may a State derogate from the obligations in treaties for the protection of human rights? Does such derogation apply to all human rights?

ANSWERS: YES. Article 4(1) or the Derogation Clause of the International Covenant on Civil and Political Rights, provides that in time of public emergency which threatens the life of the nation, and the existence of which is officially proclaimed, the State Parties to the present covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided such measures are not inconsistent with their obligations under international law

and do not involve discrimination solely on the ground of race, color, sex, language, religion or social origin.PUBLIC INTERNATIONAL LAW / P 17

NO. The Derogation Clause does not apply to the following human rights (1) right to life; (2) right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment; (3) right not to be held in slavery or in servitude; (4) right to be imprisoned merely on ground of inability to fulfill a contractual obligation; (5) the right not to be held guilty under ex post facto law; (6) right to be recognized everywhere as a person before the law; and (7) right to freedom of thought, conscience and religion. These are non-derogable rights.

Settlement of International Disputes60. In international relations, does the use of war or force by a state against another violate

international law? We may force be used without violating the UN Charter? ANSWER: YES. Article 2 (4) in the United Nations Charter prohibits the use of force in the relations of states by providing that all members of the UN 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.”

YES. The following are instances when force may be used without violating the UN Charter: (1) Right to individual or collective defense (UN Charter, Art. 51) (2) Enforcement measure involving the use of armed force by the Security Council (Ibid., Art.42) (3) Enforcement measure by regional arrangement as authorized by the Security Council (Ibid.)61. What is the role of the International Court of Justice (ICJ) in international relations? What

are the two limitations on the jurisdiction of the International Court of Justice?ANSWERS: The International Court of Justice may decide on interpretation of treaties, any question on international law, the existence of facts constituting breach of international obligations, and the nature or extent of the reparation to be made for the breach of international obligation.

The two limitations on the jurisdiction of the International Court of Justice are: (1) Only states may be parties in cases before it (Art. 34) and (2) The consent of the parties is needed for the court to acquire jurisdiction with the “optional jurisdiction clause.” (Art. 36)62. The UN Security Council has the primary responsibility to maintain international peace and

security. In case of an outbreak of armed conflict between or among nations what steps may be undertaken by the UNSC to settle the dispute?

ANSWER: In case of armed conflict between or among nations, the UN Security Council may undertake preventive action and enforcement action. Preventive action consists of provisional measures to prevent a conflict from worsening and may involve the deployment of peacekeeping or observer missions. The military observers shall be unarmed, while peacekeeping forces may be armed with light weapons but they are no authorized to use force except in self-defense and the operations must not interfere with the internal affairs of the host country. Enforcement action involves the deployment of air, sea and land forces, or in the institution of a blockade. The only limitation in the exercise of the UNSC power to undertake preventive and enforcement actions is that the dispute must be international and not domestic in character. 63. State the universal jurisdiction of the International Criminal Court (ICC).ANSWER: The jurisdiction of the International Criminal Court, in accordance with the ICC Rome Statute shall be limited to serious crimes of concern to the international community as a whole: (1) the crime of genocide or acts committed with intent to destroy, in whole or in part, a national, ethical, racial or religious, groups, such as killing members of the group, imposing measures intended to prevent births within the group & forcibly transferring children of the group to another group. (2) crimes against humanity or acts when committed as part of a widespread or systematic attack directed against any

civilian population, such as murder, extermination, enslavement, apartheid torture, rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization. (3) war crimes, such as torture or inhuman treatment and (4) the crime of aggression. PUBLIC INTERNATIONAL LAW / P 18

64. What is international Humanitarian Law?

ANSWER: It is a branch of public international law which governs armed conflicts to the end that the use of violence is limited and that human suffering is mitigated or reduced by regulating or limiting the means of military operation and by protecting persons who do not or no longer participate in hostilities. It is also known as the law of armed conflict or the law of war.

65. What are the two branches of IHL?

ANSWER: 1) Law of Geneva – designed to safeguard military personnel who are no longer

taking part in the fighting.2) Law of the Hague – establishes the rights and obligations of belligerents in the

conduct of military operation, and limits the means of harming the enemy.

66. What is the Martens Clause?ANSWER: In cases not covered by international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.

67. What is international criminal law?

ANSWER: It is the branch of public international law which proscribes specified acts as international crimes, provides for their prosecution and punishment, and governs relations of States with respect to individual criminal liability and its enforcement.

68. What is an international crime?

ANSWER: It refers to an act or acts universally recognized as criminal, which is considered a grave matter of international concern and for some valid reason cannot be left within the exclusive jurisdiction of the State that would have control over it under ordinary circumstances.

69. What is international environmental law?

ANSWER: It is a branch of public international law comprising “those substantive, procedural and institutional rules which have as their primary objective the protection of the environment,” the term environment being understood as encompassing “both the features and the products of the natural world and those of human civilization.

70. What is Principle 21 of the Stockholm Declaration?

ANSWER: This declares that States have the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or areas beyond the limits of national jurisdiction.

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II. CONSTITUTIONAL LAW –BILL OF RIGHTS

Police Power01. Define police power. What are the two tests, requisites or limitations for the valid exercise

of police power?

ANSWER: Police power is the power to make, ordain, and establish all manner of wholesome and reasonable laws, statutes, ordinances whether with penalties or without, not repugnant to the Constitution, the good and welfare of the commonwealth, and for the subjects of the same. (MMDA vs . Garin, GR No. 130230, April 15, 2005)

The two tests for the valid exercise of police power are: 1) Lawful Subject – the interest of the public in general, and not of a particular subject, requires an interference with private rights, and 2) Lawful Means- the means adopted must be reasonably necessary for the accomplishment of the purpose It must not be unduly oppressive upon individuals. (City of Manila vs. Laguio, GR No.118127, April 12, 2005)

02. Upon whom is police power lodged? May it be delegated? What are the limitations if the exercise of police power is merely delegated?

ANSWER: Police power is lodged with the National Legislature which in turn may delegate it to local government units. Congress has delegated police to the LGU’s in the Local Government Code of 1991. The other limitations if the exercise of police power is merely delegated are: 1) the delegation is by express provision of law, 2) it must be exercised within the territorial limits of the delegate, and 3) such exercise is not contrary to law.03. Does the MMDA have the power to confiscate, suspend or revoke drivers’ licences?ANSWER: NO. the MMDA does not have the power to confiscate, suspend or revoke drivers’ licences without a traffic law or regulation validly enacted by the legislature or those of the local government units to whom legislative powers have been delegated. Once there is such a law, MMDA is duty-bound to confiscate, suspend or revoke drivers’ licences in the exercise of its mandate of transport and traffic management. License to operate a motor vehicle is not a property, but a privilege granted by the state which may be suspended or revoked by the state in the exercise of its police power, in the interest of public safety and welfare, subject to the procedural requirements of due process. (MMDA vs . Garin, supra.)

04. The Expanded Senior Citizens Act of 2003 grants to senior citizens 20% discount from all establishments relative to the utilization of services in hotels and similar establishments as well as purchases of medicines. State the nature or justification of the law.

ANSWER: The law is a legitimate exercise of police power which, similar to the power of eminent domain, has the general welfare for its object. When conditions so demand as determined by the legislature, property rights must bow to the primacy of police power because property rights, though sheltered by due process, must yield to the general welfare. (Carlos Super Drug Corp. vs. DSWD, GR No. 166494, January 29, 2007)Power of Eminent Domain05. What is the power of eminent domain? What are the constitutional limitations in the

exercise of the power of eminent domain?

ANSWER: The power of eminent domain is the “rightful authority, which exists in every sovereignty to control and regulate those rights of public nature which pertain to its citizens in common, and to appropriate and control individual property for the public benefit, as the public safety, necessity, convenience, or welfare may demand. The exercise of the power of eminent domain is constrained by two constitutional provisions: (1) that private property shall not be taken for public use without just compensation under Article III, Section 9 on Bill of Rights and (2) the due process clause which states that no person shall be deprived of life, liberty or property without due process of law also under Article III, Section 1. (Lagcao vs. Labra, GR No. 155746, October 13, 2004)

-1-CONSTITUTIONAL LAW-BILL OF RIGHTS / P02 06. Distinguish the power of eminent domain from police power.ANSWER: In the exercise of the power of eminent domain, the taking of property is for public use while in the exercise of police power, the taking is a mere incident to a valid regulation to promote public interest. In the exercise of eminent domain, property or right of property is taken from the owner and transferred to a public agency to be enjoyed by its as its own while in the exercise of police power, the taking of property or a right therein is accomplished not by transfer of ownership but by destroying the property or impairing its value.07. Distinguish the effects of the exercise of police power and the power of imminent domain in

relation to the right to private property.ANSWER: In the exercise of police power, there is a limitation or restriction of property interests to promote public welfare which involves no compensable taking. Compensation is necessary only when the state’s power of eminent domain is exercised. In eminent domain, property is appropriated and applied to some public purpose. Property condemned under the exercise of police power, on the other hand, is noxious or intended for noxious or forbidden purpose, and consequently, is not compensable. The restriction imposed to protect lives, public health and safety from danger is not a taking. It is merely the prohibition or abatement of noxious use which interferes with paramount right of the public. (Social Justice Society vs. Atienza, 545 SCRA 92)

08. May LGU’s exercise the power of eminent domain? May LGU’s validly expropriate small lots to accommodate no more than few tenants or squatters?

ANSWER: YES. While LGU’s have no inherent power of eminent domain, by virtue of the Local Government Code, Congress conferred upon LGU’s the power to expropriate. However, condemnation of small private lots in an irrational or piecemeal fashion or the random expropriation of small lots to accommodate no more than a few tenants or squatters is certainly not the condemnation for public use contemplated by the Constitution. This is depriving a citizen of his property for the convenience of a few without perceptible benefit to the public. While housing is one of the most serious problems of the country, LGU’s do not possess unbridled authority to exercise their power of eminent domain in seeking solutions to this problem. (Lagcao vs. Labra, supra)

09. May a barangay government expropriate a property which shall be used as a feeder road for the benefit of the residents of Purok Paraiso, yet the Purok is within a private subdivision?

ANSWER: NO. The expropriation was intended for private purpose. It would benefit only the owners of the subdivision who will be able to circumvent the commitment to provide road access to the subdivision and relieved from spending their funds for a right of way. The intended expropriation of private property for the benefit of a private individual is clearly proscribed by the Constitution, declaring that it should be for public use or purpose. Likewise, public fund can be used only for a public purpose. In this proposed condemnation, government funds would be employed for the benefit of a private individual without any legal mooring. (Barangay Sindalan vs. CA, GR No. 150640, March 22, 2007)

10. Spouses H and W were the lessees of a parcel of land in Quezon City. A law was enacted authorizing the national government to expropriate certain properties, among others, for the extension of EDSA. The land leased by H and W was part of those expropriated under the said law. They were not included in the expropriation proceedings because they were mere lessees of the property, according to the Solicitor General. To be entitled to just compensation, should the defendant be the owner of the property expropriated?

ANSWER: NO. The defendants in an expropriation case are not limited to the owners of the property condemned. They include all other persons, owning, occupying, or claiming to own the property. When a parcel of land is taken by eminent domain, the owner of the fee is not necessarily the only person entitled to compensation. A lessee, mortgagee, or a vendee in possession under an executory contract of the land has the right to take part in the expropriation proceeding. If a person claiming an interest in the land sought to be condemned is not made a party, he is given the right to intervene and lay claim to the compensation. (Knecht vs. CA, GR No. 108015, May 20 1998)CONSTITUTIONAL LAW-BILL OF RIGHTS / P03 11. A property was converted into an airport by the Air Transportation Office (ATO) depriving

the owners of the beneficial use and enjoyment of the same as early as 1948 without an expropriation proceeding. It was contended that there was taking, hence, just compensation should be reckoned from 1948. Is the contention legally tenable?

ANSWER: NO. As a general rule, the determination of just compensation in eminent domain cases is reckoned from the time of taking. (Gabatin vs. LBO, 444 SCRA 176) In this case, however, application of the said rule would lead to grave injustice. Note that the ATO had been using the property as airport since 1948 without having instituted the proper expropriation proceedings. To peg the value of the property at the time of taking in 1948, despite the exponential increase in its value considering the lapse of over half a century, would be iniquitous. ATO cannot conveniently invoke the right of eminent domain to take advantage of the ridiculously low value of the property at the time of taking that it arbitrarily chooses to the prejudice of the owners. Justice and fairness dictate that the appropriate reckoning point for the valuation of the property is when the trial court made its order of expropriation in 2001. (Heirs of Mateo Pidacan and Romana Eigo vs. ATO, GR No. 162779, June 15, 2007)Concept of Due Process12. What is due process? What are its purposes? Who are covered by the due process clause?ANSWER: There is no controlling and precise definition of due process but its standard may be described. This standard may be described as responsiveness to the supremacy of reason, obedience to the dictates of justice, and as such, it is a limitation upon the exercise of police power.

Among the purposes of the guaranty of the right to due process area: 1) to prevent governmental encroachment against the life, liberty and property of individuals, and 2) to secure to all persons equal and impartial justice and the benefit of the general law. (City of Manila vs. Laguio, supra.)

The guarantee serves as protection against arbitrary regulation, and private corporations and partnerships are persons within the scope of the guaranty insofar as their property is concerned. (Ibid.)

Due Process and Right to Counsel13. Does the due process clause encompass the right to be assisted by counsel during and

administrative inquiry?ANSWER: NO. In an administrative proceeding, a respondent has the option of engaging the services of counsel or not. Thus, the right to counsel is not imperative in administrative investigations because such inquiries are conducted merely to determine whether there are facts that merit disciplinary measures against erring public officers and employees, with the purpose of maintaining the dignity of government service. The right to counsel is not indispensable to due process unless required by the Constitution or the law. (Lumiqued vs. Exevea, 282 SCRA 125 and Remolana vs. CSC, 362 SCRA 304)Due Process and Preliminary Investigation 14. The charge filed against petitioner was modified from violation of Art. 220 (Technical

Malversation) of the Revised Penal Code to violation of Secs. 3(e) and 3(h), RA 3019. Petitioners claim that their right to due process was denied since they were not given the opportunity to answer and present evidence on the new charge in a preliminary investigation. Decide.

ANSWER: The petition lacks merit. The right to a preliminary investigation is not a constitutional right but it is merely conferred by statute. The absence of a preliminary investigation does not impair the validity of Information or otherwise render the same defective. The denial of the motion for reinvestigation cannot likewise invalidate the Information or oust the court of its jurisdiction over the case. Petitioners were not denied due process because they had the opportunity to refute the charges by filing their counter-affidavits. The modification of the offense charged was based on the same set of facts and the same allegedly illegal acts. Furthermore, the right to preliminary investigation is deemed waived when the accused fails to invoke it before or at the time of entering a plea on arraignment. (Budiongan vs. dela Cruz, GR No. 170288, September 22, 2006)CONSTITUTIONAL LAW-BILL OF RIGHTS / P04 15. A respondent claim denial of due process when she was given the opportunity to file her

affidavits and other pleadings and submit evidence before the DOJ during the preliminary investigation of her case and before the Information was filed against her. Decide.

ANSWER: There is no denial of due process. Due process is merely an opportunity to be heard. In addition, preliminary investigation conducted by the DOJ is merely inquisitorial. It is not a trial of the case on the merits. Its sole purpose is to determine whether a crime has been committed and whether the respondent therein is probably guilty of the crime. It is not the occasion to the full and exhaustive display of the parties’ evidence. Hence, if the investigating prosecutor is already satisfied that he can reasonably determine the existence of probable cause based on the parties’ evidence thus presented, he may terminate the proceedings and resolve the case. (Santos vs. People, GR No. 173176, August 26, 2008)

Concept of Equal Protection16. What is your understanding of the equal protection clause? Does it take way from the State the power to classify? What are the requisites of valid classification? ANSWER: The guaranty to equal protection and uniformity is satisfied 1) when the laws operate uniformly on all persons under similar circumstances, and 2) all persons are treated in the same manner in terms of both privileges conferred and liabilities imposed, the conditions not being different, and that favoritism and preference are not allowed.

NO. The equal protection clause does not take away from the state the power to classify in the adoption of police power laws, but admits of the exercise of the wide scope of discretion in that regards and avoids what is done only when it is without any reasonable basis, and therefore is purely arbitrary. (Re: Request for the grant of Special Distortion Allowance, A.M. No. 03-11-25-SC, October 1, 2004)

The requisites of valid classification are: 1) there must substantial distinctions which must make for real differences; 2) the classification must be germane to the issue; 3) it must apply not only to existing conditions but future conditions as well; and 4) it must be applicable to all members of the same class. (People vs. Vera, 65 Phil 56)

17. The petitioners assail the validity of Administrative order No. 1, which prohibited motorcycles on limited access highways on the basis of RA 2000 (Limited Access Highway Act). The petitioner seeks redress from the motorcycle ban under the equal protection clause, because AO 1 singled out motorcycles. Decide.

ANSWER: There is a real and substantial distinction between a motorcycle and other motor vehicles. Not all motorized vehicles are created equal – real and substantial differences exist between a motorcycle and other forms of transport sufficient to justify its classification among those prohibited from plying the toll ways. (Mirasol vs. DPWH, GR No. 158793, June 8, 2006)18. Does the VAT Law violate the due process and equal protection clauses when it reduced the

input credits to only 70% of output VAT?ANSWER: NO. Input VAT is not a property or a property right within the constitutional purview of the due process clause being merely a statutory privilege. Persons have no vested rights in statutory privileges. The State may change or take away rights, which were created by laws of the State, although it may not take away property, which was vested which was vested by virtue of such rights. (Abakada Guro PartyList vs. Ermita, GR No. 168056, Sept. 1, 2005)19. Does a city ordinance that prohibit motels and inns in the Ermita-Malate area but not

outside of this area violate the equal protection clause?ANSWER: YES. A city ordinance violates the equal protection clause where it prohibits motels and inns but not pension houses, hotels, lodging houses or other similar establishments despite the fact that these establishments are all similarly situated. Furthermore, it prohibits the business and operation of motels in the Ermita-Malate area but not outside of this area. There is no valid classification because a noxious establishment does not become any less noxious if located outside the area. (City of Manila vs .Laguio, supra.)

CONSTITUTIONAL LAW-BILL OF RIGHTS / P05 Search and Seizure; Probable Cause20. What are the requisites for issuing a search warrant? What are the requisites in the

determination of the existence of probable cause?ANSWER: A search warrant shall not issue but 1) upon probable clause 2) in connection with one specific offense a) to be determined personally by the judge b) after examination under oath or affirmation of i) the complainant ii) the witness he may produce, and 3) particularly describing a) the place to be searched and b) the things to be seized i) anywhere in the Philippines.

Under the Constitution and the Rules of Court, the issuance of a search warrant is justified only upon a finding of probable cause. In determining the existence of probable cause, it is required that: (1) the judge must examine the complainant of his witness personally; (2) the examination must be under oath; and (3) the examination must be reduced in writing in the form of searching questions and answers. In People vs. Mamaril, GR No. 147607, January 22, 2004, the records only show the existence of an application for search warrant, The affidavits of complainant’s witnesses and return of the search warrant. The prosecution failed to prove that the issuing judge put into writing his examination of the applicant and his witnesses in the form of searching questions and answers before issuance of the search warrant, rendering the search warrant invalid and the evidence seized pursuant thereto is inadmissible.

21. May the constitutional protection against unreasonable searches and seizures be extended to acts committed by private individuals?

ANSWER: NO. As held in People vs. Marti, 193 SCRA 57, the constitutional protection against unreasonable searches and seizures refers to the immunity of one’s person from interference by government and it cannot be extended to acts committed by private individuals so as to bring it within the ambit of alleged unlawful intrusion. (People vs. Mendoza, 301 SCRA 66)

22. Can the place to be searched, as set out in the warrant, be amplified or modified by the officers’ own personal knowledge of the premises, or the evidence they adduce in support of their application for warrant?

ANSWER: NO. Such a change is proscribed by the Constitution which requires inter alia the search warrant to particularly describe the place to be searched as well as the persons or things to be seized. It would concede to the police officers the power of choosing the place to be searched, even if it not be that delineated in the warrant. It would open wide the door to abuse of the search process, and grant to officers executing a search warrant that discretion which the Constitution has precisely removed from them. The particularization of the description of the place to be searched may properly be done only by the judge, and only in the warrant itself; it cannot be left to the discretion of the police officers conducting the search. (People vs. CA, 291 SCRA 400)23. What are the instances of valid warrantless searches and seizures?ANSWER: 1) search incident to a lawful arrest 2) when it involves prohibited articles in “plain view.” 3) search of a moving vehicle 4) consented warrantless search 5) customs searches 6) searches without warrant of automobiles 7) “Stop and frisk” 8) Exigent and emergency circumstances . (People vs. Nuevas, GR No. 170233, Feb. 22, 2007)24. What is probable cause in warrantless arrest? ANSWER: Probable cause means an actual belief or reasonable ground of suspicion. Thus, there is no “personal knowledge of facts” where the police officers merely relied on information given to them by others such as a report of the killing, information from a witness who saw the killing, the physical description given of the last man who saw the victim fitting the person arrested and information where this man lived. (People vs. Cubcubin, GR No. 136267,July 10, 2001)

25. What is the plain view doctrine?ANSWER: Objects falling within the plain view of an officer who has a right to be in the position to have that view are subject to seizure even without search warrant and may be introduced in evidence.CONSTITUTIONAL LAW-BILL OF RIGHTS / P06

26. What is the “Fruit of the Poisoned Tree” Doctrine?ANSWER: Evidence obtained from illegal search and seizure shall be inadmissible for any purpose in any proceedings. [Art. III, Sec. 3(2)]

Privacy of Communication27. ANDREA and MONICA had confrontation in the latter’s office. ANDREA secretly taped the conversation. The conversation between them bordered on humiliating and vexing the personality and dignity of MONICA for which she filed a civil case for damages. During the hearing ANDREA produced the recorded tape to prove that MONICA indeed insulted her. MONICA, in a countersuit filed a criminal case against ANDREA for violation of RA 4200 which prohibits and penalizes wire tapping and other violations of private communications. ANDREA moved to dismiss the criminal case on the ground that the allegations do not constitute an offense and that the taping of conversation between the parties is not covered by RA 4200. The trial court granted said motion which decision was reversed by the Court of Appeals. ANDREA elevated the case to the Supreme Court on certiorari. Is ANDREA liable for violation of RA 4200? Decide.ANSWER: YES. Section 1 of RA 4200 clearly and unequivocably prohibits any person, not authorized by all the parties to any private conversation, to secretly tape record any communication by means of a tape recorder. Congressional records support the view that the intention of the lawmakers in enacting RA 4200 is to make illegal any unauthorized tape recording of private conversation or communication taken by either of the parties themselves or third persons. Absent a clear showing that both parties to the telephone conversations allowed the recording of the same, the inadmissibility of the subject tapes is mandatory under RA 4200. (Ramirez vs. CA, 248 SCRA 590 and Salcedo-Ortanez vs. CA, 235 SCRA 111)

In Mamba vs. Judge Garcia, A.M. No. MTJ-96-1110, June 25, 2001, the Supreme Court likewise ruled that the investigating judge’s reliance on the tape-recorded conversation is erroneous. The recording of private conversation, without the consent of the parties, contravenes the provisions of RA 4200, otherwise known as the Anti-Wire Tapping Law, and renders the same inadmissible in evidence in any proceeding. The law covers even those recorded by persons privy to the conversation, as in this case.

28. Can a detention prisoner validly invoke his right to privacy of communication guaranteed under Section 3 of the Bill of Rights?

ANSWER: I qualify. While letters containing confidential communication between detainees and their lawyers enjoy a limited protection in that prison officials can open and inspect the mail for contraband but could not read the contents thereof without violating the inmates’ right to correspondence, letters folded but not in a sealed envelope and are not confidential communication between the detainees and their lawyers, the officials of the ISAFP Detention Center could read the letters. If the letters are marked confidential communication between detainees and their lawyers, the detention officials should not read the letters but only open the envelopes for inspection in the presence of the detainees. (Alejano vs. Cabuay, 468 SCRA 188)Right to Privacy and Right Against Self-incrimination29. Does a Senate Committee inquiry violate Philcomsat Holding Corporation and Standard

Charter Bank’s right to privacy and right against self-incrimination? ANSWER: NO. Since the inquiry focused on the acts committed in the discharge of their duties as officers and directors of said corporations, they have no reasonable expectation of privacy on matters involving their offices in a corporation where the government has interest. Such matters are of public concern and over which the people have the right to information. This goes to show that the right to privacy is not absolute where there is an overriding compelling state interest.(Sabio vs. Gordon, 504 SCRA 704) Employing the rational basis relationship test, as laid down in Morfe vs. Mutuc, 22 SCRA 424, there is no infringement on the individual’s right to privacy as the requirement to disclose information is for valid purpose, in this case, to ensure that the government agencies involved in regulating banking transactions adequately protect the public who invest in foreign securities. Suffice it to say that this purpose constitutes a reason compelling enough to proceed with the assailed legislative investigation. (Standard Charter Bank vs. Senate Committee on Banks, GR 167173, December 27, 2007) CONSTITUTIONAL LAW-BILL OF RIGHTS / P07

The right against self-incrimination may be invoked by the said directors and officers of the corporations only when the incriminating question is being asked, since they have no way of knowing in advance the nature or effect of the questions to be asked of them. That this right may possibly violated or abused is no ground for denying the Senate Committees their power of inquiry. When this power is abused, it may be presented before the courts. What is important is that the Senate Committees have sufficient Rules to guide them when the right against self-incrimination is invoked. (Sabio vs. Gordon, supra.) An accused occupies a different tier of protection from an ordinary witness. Whereas an ordinary witness may be compelled to take the witness stand and claim the privilege as each question requiring an incriminating answer is shot at him, an accused may altogether refuse to take the witness stand and refuse to answer any questions. In this case, petitioners neither stand as accused in criminal case nor will they be subjected by the respondent to any penalty by reason of their testimonies. Hence, they cannot altogether decline appearing before respondent, although they may invoke the privilege when a question calling for an incriminating answer is propounded. (Standard Charter Bank vs. Senate Committee, supra) Freedom of Expression30. The National Telecommunications Commission issued this press release: “NTC GIVES FAIR WARNING TO RADIO AND TELEVISION OWNERS TO OBSERVE ANTI-WIRETAPPING LAW AND PERTINENT CIRCULARS ON PROGRAM STANDARDS.” Petitioner Chavez filed a petition alleging that the acts of respondents are violation of the freedom on expression and of the press, and the right of the people on information on matters of public concern. ANSWER: It is clear that the challenged acts in the case at bar need to be subjected to the clear and present danger rule, as they are content-based restrictions. The acts of the respondents focused solely on but one subject – a specific content- fixed as these were on the alleged tape conversation between the President and a COMELEC official. Undoubtedly, these did not merely provide regulations as to the time, place or manner of the dissemination of speech and expression. The records of the case at bar, however are confused and confusing, and respondent’s evidence fall short of satisfying the clear and present danger test. (Chavez vs. Gonzalez, GR No. 168338, February 15, 2008)

Freedom of Religion/Separation of Church & State31. Can the courts, in the performance of their judicial functions, exercise control over church

authorities in the performance of their discretionary and official functions?ANSWER: NO. The expulsion/excommunication of members of a religious institution or organization is a matter best left to the discretion of the officials, and laws and canons, of said institution/organization. It is not for the courts to exercise control over church authorities in the performance of their discretionary and official functions. In disputes involving religious institution or organization, there is one area which the Court should not touch: doctrinal and disciplinary matters. The amendments of the constitution, re-statement of articles of religion and abandonment of faith or abjuration alleged by the appellant, having to do with faith, practice, doctrine, form of worship, ecclesiastical law, custom and rule of a church and having reference to the power of excluding from the church those allegedly unworthy of membership, are unquestionably ecclesiastical matters which are outside the province of civil courts. (Taruc vs. Cruz, 453 SCRA 123)32. What do you understand by the Doctrine of BENEVOLENT NEUTRALITY or

ACCOMMODATION?ANSWER: The doctrine believes that the wall of separation that divides the church and the state is meant to protect the church from the state. The principle recognizes that the state is not hostile to religion because it plays an important role in public life. It believes that the wall of separation does not require the state to be adversary, rather, the state must be neutral in its relations with groups or religious believers and non-believers. Under the doctrine, accommodation of religion may be allowed not to promote the government’s favored form of religion, but to allow individuals and groups to exercise their religion without hindrance. Thus, the Philippine Constitution provides for tax exemption of church properties, salary of religious officers in government institutions, and optional CONSTITUTIONAL LAW-BILL OF RIGHTS / P08

religious instructions in public schools. The adoption of the benevolent neutrality-accommodation approach does not mean that the Court ought to grant exemption every time a free exercise claim comes before it. (Estrada vs. Escritor, 492 SCRA 1)Liberty of Abode & Travel33. What are the limitations on liberty of abode? What are the limitations on the right to travel?ANSWER: The limitation on the liberty of abode is upon lawful order of the court while on the right to travel is in the interest of national security, public safety or public health, as may be provided by law. (Art. III, Sec. 6)Right to Information34. Does the COMELEC have the constitutional duty to disclose and release the names of

the nominees of the party-list groups.ANSWER: YES. The right to information is a public right where the real parties in interest are the public or the citizens. The right to information is limited to “matters of public concern” and is further subject to such limitations as may be provided by law. Also, the policy of public disclosure on Art. II Sec. 28, is confined to transactions involving “public interest and is subject to reasonable conditions prescribed by law. However, no national security is involved in the disclosure of the names of the nominees of the party-list groups in question. (Bantay RA 7941 vs. COMELEC, GR No. 177271, May 4, 2007) 35. Are the offers made by the Philippine and Japanese governments during the negotiations of the Japan-Philippines Economic Partnership Agreement (JPEPA) covered by the executive privilegeon diplomatic communications?ANSWER: YES. In Akbayan Citizens Action Party vs. Aquino, GR No. 170516,July 16, 2008, it was held that the Japanese representatives submitted their offers with the understanding that ‘historic confidentiality’ would govern the same and that they continue to be privilege even after the agreement has been published. Disclosing these offers could impair the ability of the Philippines to deal not only with Japan but with other foreign governments in future negotiations. A ruling that Philippines offers in treaty negotiation should now be open to public scrutiny would discourage future

Philippine representatives from frankly expressing their views during negotiations. The diplomatic negotiation privilege bears a close resemblance to the deliberative process and presidential communication privilege.Right to Form Associations36. Does the right the right to strike form a part of the freedom of expression?ANSWER: NO. The claim that the right to strike is a part of the freedom of expression and the right to peacefully assemble and petition the government for redress of grievances, and should thus, be recognized even in the case of government employees, was rejected by the Supreme Court in GSIS vs. Kapisanan ng Mga Manggagawa sa GSIS, GR No. 170132, December 6, 2006

Non-impairment Clause37. What is the non-impairment clause?ANSWER: The non-impairment clause is a constitutional prohibition for Congress and Sanggunians to enact a law or ordinance which changes the terms of a legal contract between parties, either in the time or mode of performance, or imposes new conditions, or dispenses with those expressed or authorizes for its satisfaction something different from that provided in its term. It impairs the obligation of a contract and is therefore null and void. To constitute impairment, the law must affect a change in the rights of the parties with reference to its other and not with respect to non-parties. (PHILRECA vs. The Secretary, DILG, GR No. 143076, June 10, 2003)38. United BF Homeowners Associations, Inc., questions the constitutionality of a zoning ordinance reclassifying certain portions of BF Homes Paranaque from residential to commercial zone because it impairs the contracts between the developer and the lot buyers. One of the promises of the developer is that the property shall be used for residential purposes only. Is the ordinance violative of the non-impairment clause in the Bill of Rights?

CONSTITUTIONAL LAW-BILL OF RIGHTS / P09 ANSWER: NO. The Court has upheld in several cases the superiority of police power over the non-impairment clause. The constitutional guarantee of non-impairment of contracts is limited by the exercise of police power of the State, in the interest of public health, safety, morals and general welfare. (United BF Homeowners’ Associations, Inc. vs. The City Mayor, Paranaque City) In Ortigas & Co. vs. Feati Bank and Trust Co., 94 SCRA 533, The Court held that contractual restrictions on the use of property could not prevail over the reasonable exercise of police power through zoning regulations.Right to Remain Silent and to Counsel39. What is custodial investigation? What are the rights of a person under custodial

investigation?ANSWER: Custodial investigation is the stage of police investigation 1) when a parson is taken into custody and 2) is singled out as a suspect in the commission of the crime under investigation and 3) the police officers begin to ask questions on a) the suspect’s participation therein and b) which tend to elicit an admission. (People vs. Pavillare, GR No. 129970, April 5, 2000)

The “Miranda” rights of a person under custodial investigation are the right 1) to be informed of his right to remain silent, 2) to have competent and independent counsel preferably of his own choice and the right to be informed of such rights. If the person cannot afford the services of counsel, he must be provided with one. These rights, except the right to be informed of such rights, cannot be waived except in writing and in the presence of counsel. (People vs. Naag, GR No. 123860, January 20, 2000)

The person under custodial investigation must be informed in a language known to and understood by him of the reason for the arrest and he must be shown the warrant of arrest, if any. (People vs. Mahinay, GR No. 122485, February 1, 1999.Exclusionary Rule40. Does the exclusionary rule under paragraph 2, Section 12 of the Bill of Right apply to

admissions made in an administrative investigation? What about extrajudicial statements made before an employer?

ANSWER: NO. The exclusionary rule under paragraph (2), Section 12 of the Bill of

Rights applies only to admissions made in a criminal investigation but not to those made in an administrative investigation. Admissions made by a respondent during an administrative investigation may be used as evidence to justify his dismissal. As such, the hearing conducted by the investigating authority is not part of criminal prosecution. The right to counsel attaches only upon the start of a custodial investigation. The right to counsel under Section 12 of the Bill of Rights is meant to protect a suspect in a criminal case under custodial investigation. (Remolana vs. CSC, 362 SCRA 304)

NO. Admissions made during the course of administrative investigation by an employer (Philippine Airlines) do not come within the purview of Section 12. The protective mantle of the constitutional provision also does not extend to admissions or confessions made to a radio announcer who was not part of the investigation, or even to a mayor approached as a personal confidante and not in his official capacity. The right exist only in “custodial investigations,” or “in-custody custody interrogation of accused persons.” And, by custodial interrogation is meant “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.” (People vs. Ayson, 175 SCRA 216; People vs. Tin Lan Uy, 475 SCRA 248: Astudillo vs. People, GR No. 159734, Nov. 30, 2006)Right to Bail41. What is bail? What are the forms of bail?ANSWER: Bail is a security given for the release of a person in custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under the conditions hereinafter specified. (Sec. 1, Rule 114, ROC)

Bail may be in the form of corporate surety, property bond, cash deposit or recognizance.

CONSTITUTIONAL LAW-BILL OF RIGHTS / P10

42. When is bail a matter of right?ANSWER: All persons in custody shall be admitted to bail as a matter of right, with sufficient sureties, or be released on recognizance as prescribed by law of the Rules of Court 1) before conviction by the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in Cities, or Municipal Circuit Trial Court, and 2) before conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment. (Sec. 4, Rule 114, ROC)

43. When is bail matter of discretion? In what court can the application for bail be filed? ANSWER: Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment, the court, on application, admission to bail is discretionary. xxx Should the court grant the application, the accused may be allowed provisional liberty during the pendency of the appeal under the same bail subject to the consent of the bondsman. (Sec. 5, Rule 114)

Whenever the grant of bail is a matter of discretion, or the accused seeks to be released on recognizance, the application can only be filed in the court where the case is pending, whether on preliminary investigation, trial, or appeal. (Sec. 17, Rule 114)

44. Explain the concept of discretionary bail pending appeal after conviction for non-capital offense.

ANSWER: The discretion to extend bail during the course of the appeal should be exercised with grave caution and for strong reasons, considering that the accused has been in fact convicted by the trial court. Reason: Bail should be granted only when it is uncertain whether the accused is guilty or innocent, and therefore, where that uncertainty is removed by conviction it would, generally speaking be absurd to admit bail. From another point of view, it may be properly argued that the probability of ultimate punishment is so enhanced by the conviction that the accused is more likely to escape if liberated on bail than before conviction. (Yap, Jr. vs. CA, GR No. 141529)

45. Is hearing mandatory when the accused is charged with an offense punishable by reclusion

perpetua, or life imprisonment?

ANSWER: YES. The judge shall conduct a hearing whether summary or otherwise, not only to take into account the guidelines set forth under the Rules for the grant of bail, but primarily to determine the existence of strong evidence of guilt or lack of it, against the accused, only for purposes of the bail. If evidence of guilt is not strong, bail becomes a matter of right.

Presumption of Innocence46. Are the signatures of the accused on the boxes and on the plastic bags tantamount to

uncounselled extrajudicial confessions and therefore inadmissible in evidence?

ANSWER: YES. They are not sanctioned by the Bill of Rights and are therefore inadmissible as evidence. The fact that all of the accused are foreign nationals does not preclude application of the “Exclusionary rule” because the constitutional guarantee embodied in the Bill of Rights are given and extends to all persons, both aliens and citizens. (People vs. Wong Chuen Ming, GR No. 112801-11, April 12, 1996) The accused have the constitutional presumption of innocence.

Right to Speedy Trial47. When is the right to speedy trial deemed violated?ANSWER: Mere mathematical reckoning of time involved is not sufficient in determining violation of right to speedy trial. It is violated only when the proceedings is attended by vexatious, capricious and oppressive delays or when unjustified postponements of the trial are asked and secured, or when without cause or unjustifiable motive, along period of time is allowed to lapse without the party having his case tried. (Ty-Dazo vs. Sandiganbayan, GR No. 143885-86, January 21, 2002)CONSTITUTIONAL LAW-BILL OF RIGHTS / P11

Suspension of the Writ of Habeas Corpus48. When may the privilege of the writ of habeas corpus be suspended? To whom may the

suspension be applied?ANSWER: In case of invasion or rebellion, when the public safety requires it, the President may suspend the privilege of the writ of habeas corpus. (Art. III, Sec. 15, PC)

The suspension of the privilege of the writ of habeas corpus shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially released within three days, otherwise he shall be released. (Art. VII, Sec. 18, 5th and 6th pars. PC)

Right Against Self-Incrimination49. What is the scope of the right against self-incrimination? What are the mechanical acts that,

without the use of intelligence, do not fall within the scope of the protection?ANSWER: The scope of the right includes 1) prohibition against testimonial evidence and 2) prohibition against act that require use of intelligence, such as providing handwriting for comparison.

Some acts which are not covered by the right against self-incrimination are: 1) Fingerprinting, photographing and paraffin testing, physical examination; 2) Physical examination of a woman accused of adultery to determine if she is pregnant; 3) Undergoing ultra-violet rays examination to determine presence of fluorescent powder on the hands; 4) Subpoena directing government officials top produce official documents or public records in their custody; and 5) Fitting the accused foot over a foot print, putting on a pair of trousers, shoes, etc.

50. Can an accused invoke the right against self-incrimination? What about ordinary witnesses?ANSWER: An accused is exempt from being compelled to be a witness against himself [Sec 1 (e), Rule 115, ROC], so he could validly refuse to take the witness stand.

An ordinary witness who is not the accused may be compelled to testify. However, he could claim the privilege against self-incrimination and refuse to answer

only as each question requiring an incriminatory answer is propounded to him. (Badiong vs. Gonzales, 94 SCRA 906)

Double Jeopardy51. What is the concept of double jeopardy?ANSWER: When an accused 1) has been convicted or acquitted, or 2) the case against him dismissed or otherwise terminated a)without his consent b) by a court of competent jurisdiction, c) upon a valid complaint or other formal charge sufficient in form and substance to sustain a conviction and 3)after the accused had pleaded guilty to the charge, 4) the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution a) for the offense charged, or b) for any attempt to commit the same or frustration thereof, or c) for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information. 1st

par. Sec. 7, Rule 117 ROC)

52. What are the protection afforded by the right against double jeopardy?ANSWER: 1) Against a second prosecution for the same offense after acquittal

2) Against a second prosecution for the same offense after conviction 3) Against multiple punishments for the same offense

53. What are the requisites for double jeopardy? What are the proofs that the first jeopardy had attached?

ANSWER: Requisites:1) the first jeopardy must have attached prior to the second; 2) the first jeopardy must have been validly terminated; 3) the second jeopardy must be a) for the same offense; b) the second offense includes or is necessarily included in the offense charged in the first information, or is 3) an attempt to commit the same or is a frustration thereof. (Cudia vs. CA, GR No. 110315, January 16, 1998)CONSTITUTIONAL LAW-BILL OF RIGHTS / P12

Proofs: 1) court of competent jurisdiction; 2) valid complaint or information 3) arraignment; 4) valid plea; and 5) the defendant was acquitted or convicted or the case was dismissed or otherwise terminated without the express consent of the accused. (Cudia vs. CA, supra.) 54. Is there double jeopardy if acquittal violates due process?ANSWER: NONE. The only instance when double jeopardy will not attach is when the trial court acted with grave abuse of discretion amounting to lack or excess of jurisdiction due to a violation of due process, ie, that the prosecution was denied the opportunity to present its case, in which case certiorari may be resorted to cure an abusive denial. In that extraordinary proceeding it must be clearly demonstrated that the trial court blatantly abused its authority to a point so grave as to deprive it of its very power to dispense justice. (People vs. Sandiganbayan, GR No. 140633, February, 2002)

55. Is there double jeopardy upon a conviction for violation of Anti-Graft Law and a subsequent charge for falsification of public documents?

ANSWER: NONE. One of the elements of double jeopardy that is missing is that the second jeopardy (falsification of public documents) must be for the same offense as that in the first (Anti-Graft and Corrupt Practices). The crime of falsification of public documents is not necessarily included in Anti-Graft and Corrupt Practices. They have different elements. The guilt or innocence of the accused in the anti-graft case does not hinge on the validity or falsity of the documents which is the subject of the falsification. Furthermore, it is clear that the Sandiganbayan did not rule on the validity or falsity of the public documents. (Suero vs. People, GR No. 156408, Januray 31, 2005)

56. When it became manifest before the judgment that a mistake has been made in charging the proper offense against A, the first charge was dismissed to pave the way for the filing of the proper offense. Does the filing of the proper offense constitute double jeopardy?

ANSWER: No. The dismissal of the first case will not give rise to double jeopardy inasmuch as the proper offense was not the one charged against A in such case. The filing of the proper offense, therefore, does not constitute double jeopardy. (Gonzales vs. Court

of Appeals, 232 SCRA 667)

57. What is the so-called Finality-of-Acquittal Doctrine?ANSWER: The doctrine is a safeguard against double jeopardy where verdicts of acquittal are to be regarded as absolutely final and irreviewable. In the Absence of a finding of mistrial, i.e., the criminal trial was a sham, a judgment of acquittal is final and unappealable on the ground of double jeopardy whether it happens at the trial court level or at the Court of Appeals. In People vs. CA, GR No. 142051, February 24, 2004, the special civil action of certiorari seeking a review and reversal of decision acquitting an accused on ground of grave abuse of discretion is not proper. If the petition, regardless of its nomenclature, merely calls for an ordinary review of the findings of the court a quo, without demonstrating that the lower court blatantly abused its authority to a point so grave as to deprive it of its very power to dispense justice, the constitutional right against double jeopardy would be violated. Such recourse is tantamount to converting the petition for certiorari into an appeal, contrary to the express injunction of the Constitution, the Rules of Court and prevailing jurisprudence on double jeopardy. (Ibid.)

Overbreath Doctrine and Void for Vagueness Doctrine58. Define/explain briefly the following doctrines:

(1) Overbreath Doctrine(2) Void for Vagueness Doctrine

(1) The Overbreath Doctrine states that “a governmental purpose may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.” In David vs. Ermita, the Supreme Court prevented the government, pursuant to Presidential Proclamation 1017 and General Order No. 5, from hunting down terrorists since “acts of terrorism” had not been defined and made punishable by Congress.


(2) The Void for Vagueness Doctrine which renders a law invalid “if men of common intelligence must necessarily guess at its meaning and differ as to its application. Thus, a statute may be rendered void if its terms are uncertain or not sufficiently definite rendering it incomprehensible to ordinary people and thereby making the enforcement of the law arbitrary and subject to abuse. Such a vague or ambiguous piece of legislation violates due process of law. It provides a rule to the effect that a statute establishing a criminal offense must define the offense with sufficient definiteness that persons of ordinary intelligence can understand what conduct is condemned.

59. R challenges the validity of Section 5 of RA 3019, a penal statute on the ground that the act constituting the offense is allegedly vague and “impermissibly broad” and thus violated due process right of individual to be informed of the nature and cause of accusation against him. Will his suit prosper?

ANSWER: NO. overbreadth and vagueness doctrine have special application only to free speech cases. They are not appropriate for testing the validity of penal statutes. When the allegation in the information is vague or indefinite, the remedy of the accused is not a motion to quash, but a motion for a bill of particulars. (Romualdez vs. Sandiganbayan, 435 SCRA 371)

A statute or regulation is considered void for overbreadth when it offends the constitutional principle that a governmental purpose to control or prevent activities constitutionally subject to State regulation may not be achieved by means that sweep unnecessarily broadly and thereby invade the area of protected freedoms. (Chavez vs. COMELEC, 437 SCRA 415)60. What is the effect of an “on its face” invalidation of criminal statutes? What is the test in

determining whether a criminal statute is void?ANSWER: The test in determining whether a criminal statute is void for uncertainty is whether the language conveys a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice. The vagueness doctrine merely requires a reasonable degree of certainty for the statute to be upheld – not absolute

precision or mathematical exactitude.Facial invalidation or an “on its face” invalidation of criminal statutes is not

appropriate because it would result in a mass acquittal of parties whose cases may not have even reached the courts. Such invalidation would constitute a departure from the usual requirement of “actual case and controversy” and permit decisions to be made in a sterile abstract context having no factual concreteness. The test in determining whether a criminal statute is void for uncertainty is whether the language conveys a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice. The vagueness doctrine merely requires a reasonable degree of certainty for the statute to be upheld – not absolute precision or mathematical exactitude. (Romualdez vs. Sandiganbayan, supra.)No ExPost Facto Law61. What is ex post facto law? What are the characteristics of ex-post facto law?ANSWER: Ex post facto law which penalizes a person for having committed an act which was not punishable at the time of its commission. Such retroactive application violates a person’s right to due process.

An ex post facto law is one that 1) Makes an act done before the passage of the law and which was innocent when done, and punishes such an act; 2) Aggravates a crime, or makes it greater that it was, when committed; 3) Changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed; 4) Alters the legal rules of evidence, authorizes conviction upon less or different testimony than the law required at the time of the commission of the offense; 5) Assuming to regulate civil rights and remedies only, in effect imposes penalty or deprivation of a right for something which when done was lawful; and 6) Deprives a person accused of a crime of some lawful protection to which he has become entitled, such as the protection of a former conviction or acquittal, or a proclamation of amnesty.CONSTITUTIONAL LAW-BILL OF RIGHTS / P14

The prohibition against ex post facto law applies only to penal laws which are given retroactive effect. Penal law is one that prescribes a criminal penalty imposable in a criminal trial. A law is also penal if it prescribes a burden equivalent to a criminal penalty (eg. disqualification from the practice of a profession) even if such burden is imposed in an administrative proceeding (Pascual vs. Board of Medical Examiners, 28 SCRA 344)

Academic Freedom 62. Does the Civil Service Commission have the power to terminate employment of a UP

professor or other academic personnel?ANSWER: NO. The Civil Service Commission has no authority to dictate to UP the outright dismissal of its personnel. On its own, the CSC does not have the power to terminate employment or to drop workers from the rolls. Academic freedom encompasses the autonomy to choose who should teach and, concomitant therewith, who should be retained in its rolls of professors and other academic personnel. The UP by opting to retain a professor and even promoting him despite his absence without leave, exercised its freedom to choose who may teach or, more precisely, who may continue to teach within its faculty. (UP vs. CSC, 356 SCRA 57)

63. Does academic freedom encompass a university’s discretion to determine who shall be conferred academic honors?

ANSWER: YES. Academic freedom accords an institution of higher learning the right to decide for itself its aims and objectives and how best to attain them. Academic freedom extends to the right to confer academic honors. Thus, the exercise of academic freedom grants the University the exclusive discretion to determine to whom among its graduates it shall confer academic recognition based on its established standards. And the courts may not interfere unless there is a clear showing that the University has arbitrarily and capriciously exercised its judgments. (Morales vs. UP Board of Regents, 446 SCRA 227)

64. May a university validly revoke a degree or honor it has conferred to a student after the graduation of the latter after finding that such degree or honor was obtained through fraud?

ANSWER: YES. Academic freedom of institution of higher learning is a freedom granted to “institutions of higher learning” which is thus given a “wide sphere of authority certainly extending to the choice of students.” If such institution of higher learning can decide who can and who cannot study in it, it certainly can also determine on whom it can confer the honor and distinction of being its graduates. Where it is shown that the conferment of an honor or distinction was obtained through fraud, a university has the right to revoke or withdraw the honor or distinction it has thus conferred. This freedom of a university does not terminate upon the “graduation” of a student, for it is precisely the “graduation” of such a student that it is in question. (UP Board of Regents vs. CA and Celine, GR No. 134625, August 31, 1999)

65. The Board of Regents of the Benguet State University approved a resolution granting rice subsidy and health care allowance to BSU’s employees. The grant of this rice subsidy and health care allowance in the amount of P4.35M was disallowed in audit by the Commission on Audit stating that RA 9282, the Higher Education Modernization Act of 1997, does not provide for the grant of said allowance to employees and officials to the university. BSU argued that the authority given to the Governing Board is plenary and absolute invoking the academic freedom clause of the Constitution. Is the contention of BSU legally tenable?

ANSWER: NO. BSU cannot find solace in the academic freedom clause of the Constitution. Academic freedom as adverted to in the Constitution and in RA 9282 only encompasses the freedom of the institution of higher learning to determine for itself, on academic grounds, who may teach, what may be taught, how it shall be taught and who may be admitted to study. The guaranteed academic freedom does not grant the institution of higher learning unbridled authority to disburse its funds and grant additional benefits sans statutory basis that would justify the grant of these additional benefits to its employees. (BSU vs. COA, 524 SCRA 437)


66. Does the assumption by the Civil Service Commission of jurisdiction over a president of a state university violate academic freedom?

ANSWER: NO. A complaint against a state university official may be filed either with the university’s Board of Regents or directly with the Civil Service Commission which has concurrent jurisdiction. Contrary to the matters traditionally held to be justified to be within the bounds of academic freedom, the administrative complaints filed against a state university president involves violations of the civil service rules. The guaranteed academic freedom does not give an institution the unbridled authority to perform acts without any statutory basis. For that reason, a school official, who is a member of the civil service, may not be permitted to commit violations of civil service rules under the justification that he was free to do so under the principle of academic freedom. (Civil Service Commission vs. Sojor, GR 168766, May 22, 2008)

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II. CONSTITUTIONAL LAW –BILL OF RIGHTSPolice Power01. The Expanded Senior Citizens Act of 2003 grants to senior citizens 20% discount from all

establishments relative to the utilization of services in hotels and similar establishments as well as purchases of medicines. State the nature or justification of the law.

ANSWER: The law is a legitimate exercise of police power which, similar to the power of eminent domain, has the general welfare for its object. When conditions so demand as determined by the legislature, property rights must bow to the primacy of police power because property rights, though sheltered by due process, must yield to the general welfare. (Carlos Super Drug Corp. vs. DSWD, GR No. 166494, January 29, 2007)

Power of Eminent Domain

02. What are the constitutional limitations in the exercise of the power of eminent domain?

ANSWER: The exercise of the power of eminent domain is constrained by two constitutional provisions: (1) that private property shall not be taken for public use without just compensation under Article III, Section 9 on Bill of Rights and (2) that no person shall be deprived of life, liberty or property without due process of law also under Article III, Section 1.

03. Can a barangay government expropriate a property which shall be used as a feeder road for the benefit of the residents of Purok Paraiso, yet the Purok is within a private subdivision?

ANSWER: NO. The expropriation was intended for private purpose. It would benefit only the owners of the subdivision who will be able to circumvent the commitment to provide road access to the subdivision and relieved from spending their funds for a right of way. The intended expropriation of private property for the benefit of a private individual is clearly proscribed by the Constitution, declaring that it should be for public use or purpose. Likewise, public fund can be used only for a public purpose. In this proposed condemnation, government funds would be employed for the benefit of a private individual without any legal mooring. (Barangay Sindalan vs. CA, GR No. 150640, March 22, 2007)

04. A property was converted into an airport by the Air Transportation Office (ATO) depriving the owners of the beneficial use and enjoyment of the same as early as 1948 without an expropriation proceeding. It was contended that there was taking, hence, just compensation should be reckoned from 1948. Is the contention legally tenable?

ANSWER: NO. As a general rule, the determination of just compensation in eminent domain cases is reckoned from the time of taking. (Gabatin vs. LBO, 444 SCRA 176) In this case, however, application of the said rule would lead to grave injustice. Note that the ATO had been using the property as airport since 1948 without having instituted the proper expropriation proceedings. To peg the value of the property at the time of taking in 1948, despite the exponential increase in its value considering the lapse of over half a century, would be iniquitous. ATO cannot conveniently invoke the right of eminent domain to take advantage of the ridiculously low value of the property at the time of taking that it arbitrarily chooses to the prejudice of the owners. Justice and fairness dictate that the appropriate reckoning point for the valuation of the property is when the trial court made its order of expropriation in 2001. (Heirs of Mateo Pidacan and Romana Eigo vs. ATO, GR No. 162779, June 15, 2007)

CONSTITUTIONAL LAW / P32

05. Spouses H and W were the lessees of a parcel of land in Quezon City. A law was enacted authorizing the national government to expropriate certain properties, among others, for the extension of EDSA. The land leased by H and W was part of those expropriated under the said law. They were not included in the expropriation proceedings because they were mere lessees of the property, according to the Solicitor General. To be entitled to just compensation, should the defendant be the owner of the property expropriated?

ANSWER: NO. The defendants in an expropriation case are not limited to the owners of the property condemned. They include all other persons, owning, occupying, or claiming to own the property. When a parcel of land is taken by eminent domain, the owner of the fee is not necessarily the only person entitled to compensation. A lessee, mortgagee, or a vendee in possession under an executory contract of the land has the right to take part in the expropriation proceeding. If a person claiming an interest in the land sought to be condemned is not made a party, he is given the right to intervene and lay claim to the compensation.

Police Power & Power of Imminent Domain and the Right to Private Property06. Distinguish the effects of the exercise of police power and the power of imminent domain in

relation to the right to private property.ANSWER: In the exercise of police power, there is a limitation or restriction of property interests to promote public welfare which involves no compensable taking. Compensation is necessary only when the state’s power of eminent domain is exercised. In eminent domain, property is appropriated and applied to some public purpose. Property condemned under the exercise of police power, on the other hand, is noxious or intended for noxious or forbidden purpose, and consequently, is not compensable. The restriction imposed to protect lives, public health and safety from danger is not a taking. It is merely the prohibition or abatement of noxious use which interferes with paramount right of the public. (Social Justice Society vs. Atienza, 545 SCRA 92)

Due Process and Preliminary Investigation07. The charge filed against petitioner was modified from violation of Art. 220 (Technical Malversation) of the Revised Penal Code to violation of Secs. 3(e) and 3(h), RA 3019. Petitioners claim that their right to due process was denied since they were not given the opportunity to answer and present evidence on the new charge in a preliminary investigation. Decide.

ANSWER: The petition lacks merit. The right to a preliminary investigation is not a constitutional right but it is merely conferred by statute. The absence of a preliminary investigation does not impair the validity of Information or otherwise render the same defective. The denial of the motion for reinvestigation cannot likewise invalidate the Information or oust the court of its jurisdiction over the case. Petitioners were not denied due process because they had the opportunity to refute the charges by filing their counter-affidavits. The modification of the offense charged was based on the same set of facts and the same allegedly illegal acts. Furthermore, the right to preliminary investigation is deemed waived when the accused fails to invoke it before or at the time of entering a plea on arraignment. (Budiongan vs. dela Cruz, GR No. 170288, September 22, 2006)


Due Process and Right to Counsel08. Does the due process clause encompass the right to be assisted by counsel during and

administrative inquiry?

ANSWER: NO. In an administrative proceeding, a respondent has the option of engaging the services of counsel or not. Thus, the right to counsel is not imperative in administrative investigations because such inquiries are conducted merely to determine whether there are facts that merit disciplinary measures against erring public officers and employees, with the purpose of maintaining the dignity of government service. The right to counsel is not indispensable to due process unless required by the Constitution or the law. (Lumiqued vs. Exevea, 282 SCRA 125 and Remolana vs. CSC, 362 SCRA 304)

Privacy of Communication09. ANDREA and MONICA had confrontation in the latter’s office. ANDREA secretly taped

the conversation. The conversation between them bordered on humiliating and vexing the personality and dignity of MONICA for which she filed a civil case for damages. During the hearing ANDREA produced the recorded tape to prove that MONICA indeed insulted her. MONICA, in a countersuit filed a criminal case against ANDREA for violation of RA 4200 which prohibits and penalizes wire tapping and other violations of private communications. ANDREA moved to dismiss the criminal case on the ground that the allegations do not constitute an offense and that the taping of conversation between the parties is not covered

by RA 4200. The trial court granted said motion which decision was reversed by the Court of Appeals. ANDREA elevated the case to the Supreme Court on certiorari. Is ANDREA liable for violation of RA 4200? Decide.

ANSWER: YES. Section 1 of RA 4200 clearly and unequivocably prohibits any person, not authorized by all the parties to any private conversation, to secretly tape record any communication by means of a tape recorder. Congressional records support the view that the intention of the lawmakers in enacting RA 4200 is to make illegal any unauthorized tape recording of private conversation or communication taken by either of the parties themselves or third persons. Absent a clear showing that both parties to the telephone conversations allowed the recording of the same, the inadmissibility of the subject tapes is mandatory under RA 4200. (Ramirez vs. CA, 248 SCRA 590 and Salcedo-Ortanez vs. CA, 235 SCRA 111)

In the case of Mamba vs. Judge Garcia, A.M. No. MTJ-96-1110, June 25, 2001, the Supreme Court likewise ruled that the investigating judge’s reliance on the tape-recorded conversation is erroneous. The recording of private conversation, without the consent of the parties, contravenes the provisions of RA 4200, otherwise known as the Anti-Wire Tapping Law, and renders the same inadmissible in evidence in any proceeding. The law covers even those recorded by persons privy to the conversation, as in this case.


10. Can a detention prisoner validly invoke his right to privacy of communication guaranteed under Section 3 of the Bill of Rights?

ANSWER: I qualify. While letters containing confidential communication between detainees and their lawyers enjoy a limited protection in that prison officials can open and inspect the mail for contraband but could not read the contents thereof without violating the inmates’ right to correspondence, letters folded but not in a sealed envelope and are not confidential communication between the detainees and their lawyers, the officials of the ISAFP Detention Center could read the letters. If the letters are marked confidential communication between detainees and their lawyers, the detention officials should not read the letters but only open the envelopes for inspection in the presence of the detainees. (Alejano vs. Cabuay, 468 SCRA 188)

Right to Privacy and Right Against Self-incrimination

11. Does a Senate Committee inquiry violate Philcomsat Holding Corporation and Standard Charter Bank’s right to privacy and right against self-incrimination?

ANSWER: NO. Since the inquiry focused on the acts committed in the discharge of their duties as officers and directors of said corporations, they have no reasonable expectation of privacy on matters involving their offices in a corporation where the government has interest. Such matters are of public concern and over which the people have the right to information. This goes to show that the right to privacy is not absolute where there is an overriding compelling state interest.(Sabio vs. Gordon, 504 SCRA 704) Employing the rational basis relationship test, as laid down in Morfe vs. Mutuc, 22 SCRA 424, there is no infringement on the individual’s right to privacy as the requirement to disclose information is for valid purpose, in this case, to ensure that the government agencies involved in regulating banking transactions adequately protect the public who invest in foreign securities. Suffice it to say that this purpose constitutes a reason compelling enough to proceed with the assailed legislative investigation. (Standard Charter Bank vs.

Senate Committee on Banks, GR 167173, December 27, 2007) The right against self-incrimination may be invoked by the said directors and

officers of the corporations only when the incriminating question is being asked, since they have no way of knowing in advance the nature or effect of the questions to be asked of them. That this right may possibly violated or abused is no ground for denying the Senate Committees their power of inquiry. When this power is abused, it may be presented before the courts. What is important is that the Senate Committees have sufficient Rules to guide them when the right against self-incrimination is invoked. (Sabio vs. Gordon, supra.) An accused occupies a different tier of protection from an ordinary witness. Whereas an ordinary witness may be compelled to take the witness stand and claim the privilege as each question requiring an incriminating answer is shot at him, an accussd may altogether refuse to take the witness stand and refuse to answer any questions. In this case, petitioners neither stand as accused in criminal case nor will they be subjected by the respondent to any penalty by reason of their testimonies. Hence, they cannot altogether decline appearing before respondent, although they may invoke the privilege when a question calling for an incriminating answer is propounded. (Standard Charter Bank vs. Senate Committee, supra) CONSTITUTIONAL LAW / P35

Equal Protection12. The petitioners assail the validity of Administrative order No. 1, which prohibited motorcycles on limited access highways on the basis of RA 2000 (Limited Access Highway Act). The petitioner seeks redress from the motorcycle ban under the equal protection clause, because AO 1 singled out motorcycles. Decide.

ANSWER: There is a real and substantial distinction between a motorcycle and other motor vehicles. Not all motorized vehicles are created equal – real and substantial differences exist between a motorcycle and other forms of transport sufficient to justify its classification among those prohibited from plying the toll ways. (Mirasol vs. DPWH, GR No. 158793, June 8, 2006)

Freedom of Expression13. The National Telecommunications Commission issued this press release: “NTC GIVES FAIR WARNING TO RADIO AND TELEVISION OWNERS TO OBSERVE ANTI-WIRETAPPING LAW AND PERTINENT CIRCULARS ON PROGRAM STANDARDS.” Petitioner Chavez filed a petition alleging that the acts of respondents are violation of the freedom on expression and of the press, and the right of the people on information on matters of public concern. Decide.

ANSWER: YES. It is clear that the challenged acts in the case at bar need to be subjected to the clear and present danger rule, as they are content-based restrictions. The acts of the respondents focused solely on but one subject – a specific content- fixed as these were on the alleged tape conversation between the President and a COMELEC official. Undoubtedly, these did not merely provide regulations as to the time, place or manner of the dissemination of speech and expression. The records of the case at bar, however are confused and confusing, and respondent’s evidence fall short of satisfying the clear and present danger test. (Chavez vs. Gonzalez, GR No. 168338, February 15, 2008)

Search and Seizure; Probable Cause14. May the constitutional protection against unreasonable searches and seizures be extended to

acts committed by private individuals?ANSWER: NO. As held in People vs. Marti, 193 SCRA 57, the constitutional protection against unreasonable searches and seizures refers to the immunity of one’s person from interference by government and it cannot be extended to acts committed by private individuals so as to bring it within the ambit of alleged unlawful intrusion. (People vs. Mendoza, 301 SCRA 66)15. Can the place to be searched, as set out in the warrant, be amplified or modified by the

officers’ own personal knowledge of the premises, or the evidence they adduce in support of their application for warrant?

ANSWER: NO. Such a change is proscribed by the Constitution which requires inter alia the search warrant to particularly describe the place to be searched as well as the persons

or things to be seized. It would concede to the police officers the power of choosing the place to be searched, even if it not be that delineated in the warrant. It would open wide the door to abuse of the search process, and grant to officers executing a search warrant that discretion which the Constitution has precisely removed from them. The particularization of the description of the place to be searched may properly be done only by the judge, and only in the warrant itself; it cannot be left to the discretion of the police officers conducting the search. (People vs. CA, 291 SCRA 400)CONSTITUTIONAL LAW / P36

16. What are the requisites in the determination of the existence of probable cause?

ANSWER: Under the Constitution and the Rules of Court, the issuance of a search warrant is justified only upon a finding of probable cause. In determining the existence of probable cause, it is required that: (1) the judge must examine the complainant of his witness personally; (2) the examination must be under oath; and (3) the examination must be reduced in writing in the form of searching questions and answers. In People vs. Mamaril, GR No. 147607, January 22, 2004, the records only show the existence of an application for search warrant, The affidavits of complainant’s witnesses and return of the search warrant. The prosecution failed to prove that the issuing judge put into writing his examination of the applicant and his witnesses in the form of searching questions and answers before issuance of the search warrant, rendering the search warrant invalid and the evidence seized pursuant thereto is inadmissible.

Exclusionary Rule17. Does the exclusionary rule under paragraph 2, Section 12 of the Bill of Right apply to

admissions made in an administrative investigation? What about extrajudicial statements made before an employer?

ANSWER: NO. The exclusionary rule under paragraph (2), Section 12 of the Bill of Rights applies only to admissions made in a criminal investigation but not to those made in an administrative investigation. Admissions made by a respondent during an administrative investigation may be used as evidence to justify his dismissal. As such, the hearing conducted by the investigating authority is not part of criminal prosecution. The right to counsel attaches only upon the start of a custodial investigation. The right to counsel under Section 12 of the Bill of Rights is meant to protect a suspect in a criminal case under custodial investigation. (Remolana vs. CSC, 362 SCRA 304)

NO. Admissions made during the course of administrative investigation by an employer (Philippine Airlines) do not come within the purview of Section 12. The protective mantle of the constitutional provision also does not extend to admissions or confessions made to a radio announcer who was not part of the investigation, or even to a mayor approached as a personal confidante and not in his official capacity. The right exist only in “custodial investigations,” or “in-custody custody interrogation of accused persons.” And, by custodial interrogation is meant “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.” (People vs. Ayson, 175 SCRA 216; People vs. Tin Lan Uy, 475 SCRA 248: Astudillo vs. People, GR No. 159734, November 30, 2006)

Double Jeopardy18. When it became manifest before the judgment that a mistake has been made in charging the

proper offense against A, the first charge was dismissed to pave the way for the filing of the proper offense. Does the filing of the proper offense constitute double jeopardy?

ANSWER: No. The dismissal of the first case will not give rise to double jeopardy inasmuch as the proper offense was not the one charged against A in such case. The filing of the proper offense, therefore, does not constitute double jeopardy. (Gonzales vs. Court of Appeals, 232 SCRA667)CONSTITUTIONAL LAW / P37

19. What is the so-called Finality-of-Acquittal Doctrine?

ANSWER: The doctrine is a safeguard against double jeopardy where verdicts of acquittal are to be regarded as absolutely final and irreviewable. In the Absence of a finding of mistrial, i.e., the criminal trial was a sham, a judgment of acquittal is final and unappealable on the ground of double jeopardy whether it happens at the trial court level or at the Court of Appeals. In People vs. CA, GR No. 142051, February 24, 2004, the special civil action of certiorari seeking a review and reversal of decision acquitting an accused on ground of grave abuse of discretion is not proper. If the petition, regardless of its nomenclature, merely calls for an ordinary review of the findings of the court a quo, without demonstrating that the lower court blatantly abused its authority to a point so grave as to deprive it of its very power to dispense justice, the constitutional right against double jeopardy would be violated. Such recourse is tantamount to converting the petition for certiorari into an appeal, contrary to the express injunction of the Constitution, the Rules of Court and prevailing jurisprudence on double jeopardy. (Ibid.)

Overbreath Doctrine and Void for Vagueness Doctrine20. Define/explain briefly the following doctrines:

(1) Overbreath Doctrine(2) Void for Vagueness Doctrine

(1) The Overbreath Doctrine states that “a governmental purpose may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.” In David vs. Ermita, the Supreme Court prevented the government, pursuant to Presidential Proclamation 1017 and General Order No. 5, from hunting down terrorists since “acts of terrorism” had not been defined and made punishable by Congress.

(2) The Void for Vagueness Doctrine which renders a law invalid “if men of common intelligence must necessarily guess at its meaning and differ as to its application. Thus, a statute may be rendered void if its terms are uncertain or not sufficiently definite rendering it incomprehensible to ordinary people and thereby making the enforcement of the law arbitrary and subject to abuse. Such a vague or ambiguous piece of legislation violates due process of law. It provides a rule to the effect that a statute establishing a criminal offense must define the offense with sufficient definiteness that persons of ordinary intelligence can understand what conduct is condemned.

21. R challenges the validity of Section 5 of RA 3019, a penal statute on the ground that the act constituting the offense is allegedly vague and “impermissibly broad” and thus violated due process right of individual to be informed of the nature and cause of accusation against him. Will his suit prosper?

ANSWER: NO. overbreadth and vagueness doctrine have special application only to free speech cases. They are not appropriate for testing the validity of penal statutes. When the allegation in the information is vague or indefinite, the remedy of the accused is not a motion to quash, but a motion for a bill of particulars. (Romualdez vs. Sandiganbayan, 435 SCRA 371)


A statute or regulation is considered void for overbreadth when it offends the constitutional principle that a governmental purpose to control or prevent activities constitutionally subject to State regulation may not be achieved by means that sweep unnecessarily broadly and thereby invade the area of protected freedoms. (Chavez vs. COMELEC, 437 SCRA 415)

22. What is the effect of an “on its face” invalidation of criminal statutes? What is the test in determining whether a criminal statute is void?

ANSWER: The test in determining whether a criminal statute is void for uncertainty is whether the language conveys a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice. The vagueness doctrine merely requires a reasonable degree of certainty for the statute to be upheld – not absolute precision or mathematical exactitude.

Facial invalidation or an “on its face” invalidation of criminal statutes is not appropriate because it would result in a mass acquittal of parties whose cases may not have even reached the courts. Such invalidation would constitute a departure from the usual requirement of “actual case and controversy” and permit decisions to be made in a sterile abstract context having no factual concreteness. The test in determining whether a criminal statute is void for uncertainty is whether the language conveys a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice. The vagueness doctrine merely requires a reasonable degree of certainty for the statute to be upheld – not absolute precision or mathematical exactitude. (Romualdez vs. Sandiganbayan,supra.)

23. United BF Homeowners Associations, Inc., questions the constitutionality of a zoning ordinance reclassifying certain portions of BF Homes Paranaque from residential to commercial zone because it impairs the contracts between the developer and the lot buyers. One of the promises of the developer is that the property shall be used for residential purposes only. Is the ordinance violative of the non-impairment clause in the Bill of Rights?

ANSWER: NO. The Court has upheld in several cases the superiority of police power over the non-impairment clause. The constitutional guarantee of non-impairment of contracts is limited by the exercise of police power of the State, in the interest of public health, safety, morals and general welfare. (United BF Homeowners’ Associations, Inc. vs. The City Mayor, Paranaque City) In Ortigas & Co. vs. Feati Bank and Trust Co., 94 SCRA 533, The Court held that contractual restrictions on the use of property could not prevail over the reasonable exercise of police power through zoning regulations.


Academic Freedom

24. Does academic freedom encompass a university’s discretion to determine who shall be conferred academic honors?

ANSWER: YES. Academic freedom accords an institution of higher learning the right to decide for itself its aims and objectives and how best to attain them. Academic freedom extends to the right to confer academic honors. Thus, the exercise of academic freedom

grants the University the exclusive discretion to determine to whom among its graduates it shall confer academic recognition based on its established standards. And the courts may not interfere unless there is a clear showing that the University has arbitrarily and capriciously exercised its judgments. (Morales vs. UP Board of Regents, 446 SCRA 227)

25. Does the Civil Service Commission have the power to terminate employment of a UP professor or other academic personnel?

ANSWER: NO. The Civil Service Commission has no authority to dictate to UP the outright dismissal of its personnel. On its own, the CSC does not have the power to terminate employment or to drop workers from the rolls. Academic freedom encompasses the autonomy to choose who should teach and, concomitant therewith, who should be retained in its rolls of professors and other academic personnel. The UP by opting to retain a professor and even promoting him despite his absence without leave, exercised its freedom to choose who may teach or, more precisely, who may continue to teach within its faculty. (UP vs. CSC, 356 SCRA 57)

27. May a university validly revoke a degree or honor it has conferred to a student after the graduation of the latter after finding that such degree or honor was obtained through fraud?

ANSWER: YES. Academic freedom of institution of higher learning is a freedom granted to “institutions of higher learning” which is thus given a “wide sphere of authority certainly extending to the choice of students.” If such institution of higher learning can decide who can and who cannot study in it, it certainly can also determine on whom it can confer the honor and distinction of being its graduates. Where it is shown that the conferment of an honor or distinction was obtained through fraud, a university has the right to revoke or withdraw the honor or distinction it has thus conferred. This freedom of a university does not terminate upon the “graduation” of a student, for it is precisely the “graduation” of such a student that it is in question. (UP Board of Regents vs. CA and Celine, GR No. 134625, August 31, 1999)

28. The Board of Regents of the Benguet State University approved a resolution granting rice subsidy and health care allowance to BSU’s employees. The grant of this rice subsidy and health care allowance in the amount of P4.35M was disallowed in audit by the Commission on Audit stating that RA 9282, the Higher Education Modernization Act of 1997, does not provide for the grant of said allowance to employees and officials to the university. BSU argued that the authority given to the Governing Board is plenary and absolute invoking the academic freedom clause of the Constitution. Is the contention of BSU legally tenable?


ANSWER: NO. BSU cannot find solace in the academic freedom clause of the Constitution. Academic freedom as adverted to in the Constitution and in RA 9282 only encompasses the freedom of the institution of higher learning to determine for itself, on academic grounds, who may teach, what may be taught, how it shall be taught and who may be admitted to study. The guaranteed academic freedom does not grant the institution of higher learning unbridled authority to disburse its funds and grant additional

benefits sans statutory basis that would justify the grant of these additional benefits to its employees. (BSU vs. COA, 524 SCRA 437)

29. Does the assumption by the Civil Service Commission of jurisdiction over a president of a state university violate academic freedom?

ANSWER: NO. A complaint against a state university official may be filed either with the university’s Board of Regents or directly with the Civil Service Commission which has concurrent jurisdiction. Contrary to the matters traditionally held to be justified to be within the bounds of academic freedom, the administrative complaints filed against a state university president involves violations of the civil service rules. The guaranteed academic freedom does not give an institution the unbridled authority to perform acts without any statutory basis. For that reason, a school official, who is a member of the civil service, may not be permitted to commit violations of civil service rules under the justification that he was free to do so under the principle of academic freedom. (Civil Service Commission vs. Sojor, GR 168766, May 22, 2008)

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Barnotes 2011 Pil

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