I have been spending the last year reviewing for this year's Bar exam, but after the events like Mamasapano, the presence of an MILF camp in Iligan (not part of the ARMM!), and the attack on farmers in North Cotabato, I decided to do something about this whole foolishness.

Many of you haven't read the BBL and I've decided to share this link with you here for your benefit. Go ahead and download it.

I am from Mindanao, but I am not a muslim. Let me set the record straight for all of you. Although the majority of Filipino muslims are from Mindanao, the majority of people of Mindanao are  not muslim! There are more Visayan-speaking peoples, as well as the lumads (non-muslim indigenous people,) living here in Mindanao. If there is any group that can claim the original occupancy of Mindanao, it is the lumads. The lumads were here first; then the Visayans, who later converted to Christianity when the Spanish came; then the muslims in the 1300's. 

I am against the BBL. The BBL is unconstitutional.

I will center my argument against the BBL on the following grounds:

1.) Separation of church and state

2.) Non-delegation of powers

3.) Art. 11 of the BBL

1.) Separation of Church and State

The principle of separation of church and state is a basic democratic principle.  It doesn't matter what the religious establishment is (Christian, Muslim, etc.,) the religious sector is prohibited from meddling in purely secular affairs. By the same token, the state is prohibited from favoring any religion to the exclusion of others.

The BBL violates the separation of church and state by the creation of a Shariah legal system (Art. 10.) While the text says that Shariah law shall apply only to muslims, it must be remembered that Shariah is religious law. Sec. 4 of Art. 10  enumerates the sources of Shariah law:

a.) The Quran

b.) The Sunnah

c.) The Qiyas

d.) The Ijma

These are all religious texts. Even if the BBL states that the Shariah will only apply to muslims, the mere fact that such a provision is inserted into the legal system circumvents the principle of separation of church and state.

Under the principle of separation of church and state, the state cannot interfere in religious matters. The only exception is when religious sentiments are offended because offending religious sentiments is a violation of the universal freedom of belief; therefore the state can intervene in such a case.

But the BBL is different.  Religious law must be exercised within the confines of one's own religion and the state has no power to enforce it.

2.) Non-delegation of Powers

Another important principle of a mature democracy is the non-delegation of powers. This stems from another constitutional principle known as separation of powers. In separation of powers, the powers of the executive department, the legislature and the judiciary are clearly spelled out and neither department can encroach upon the other. This requires the creation of a check and balance system to prevent abuse.

Out of this separation of powers comes non-delegation of powers. Potestas delegata non delegari potest, a power once delegated cannot be delegated further; that is a universal legal principle. If, for instance, the power to legislate has been delegated to the legislature then the legislature cannot further delegate that same power to another body. The legislature may allow subordinate legislation (read: ordinances,) but never co-equal legislation.

The BBL runs against this by stating under sec. 2 of Art. 7 expressly that the Bangsamoro Parliament can enact laws. It even provides, under sec. 13 of Art. 12, for the enactment of a separate tax code! Art. 11 of the BBL also provides for the creation of a separate police force; we will take that up in the next paragraph.

3. Art. 11 of the BBL

Art. 11 of the BBL provides for the creation of a separate police force which, under sec. 2 (1,) is supposedly under the PNP. Under sec. 8 the Chief Minister of the Bangsamoro's powers over this separate police force are spelled out, including the powers of control, supervision and discipline. 

Under sec. 5, complaints against the Bangsamoro police may be appealed to the PNP, but this creates a problem. Since the Chief Minister exercises such tremendous powers over the Bangsamoro police, what is going to happen in case of a conflict between the Chief Minister and the PNP? Such conflicts will happen if the BBL is passed into law.

These principles that have been violated are known by lawyers the world over; they are an integral part of the Rule of Law. I reiterate: the BBL is unconstitutional. You can read more info on its flaws here.

Here's another analysis of the BBL; follow the link.

Witness Protection Program: Background

Yes, the Philippines does have a witness protection program. It's RA 6981. The program is available to witnesses testifying not only in court but also at a quasi-judicial or investigating body.

Qualifications

1.) The testimony covers a grave felony under the Revised Penal Code or its equivalent under special laws
2.) The testimony's material points can be corroborated substantially
3.) The witness, or a family member within the 2nd degree (parents, siblings, children, grandchildren or grandparents) is subject to death threats, threat of injury or there is a possibility that he/his family member will be killed, harassed, forced, intimidated or bribed to prevent the witness from testifying
4.) The witness isn't part of law enforcement, even if he's testifying against other law enforcement officers (in this case, only immediate family members can receive protection)

If the witness will testify before a legislative panel "in aid of legislation," he will only  be admitted into witness protection if there is a serious need for it. It requires a recommendation from the panel which must be approved by the senate president or speaker of the house, depending on which panel is conducting the investigation.

Price Act: Controls

Automatic Price Control

The president can freeze the prices of basic necessities in a given area at their prevailing prices in any of the following instances:

1.) State of calamity/disaster area

2.) State of emergency

3.) Suspension of the privilege of the writ of habeas corpus

4.) Martial law

5.) State of rebellion

6.) State of war

“Calamity” and “disaster” can be either natural or man-made.

If the prevailing price is unreasonable or excessive, the implementing agency in question can recommend the imposition of a ceiling price for the basic necessity different from the prevailing price. This power of price control has a maximum duration of 60 days.

Mandated Price Ceiling

The president, on the recommendation of the agency concerned or the Price Coordinating Council (which consists of the Secretary of the DTI as chair, the secretaries of Agriculture, Health, DENR DILG, DOJ and DOTC, Director General of the NEDA, 1 representative each from the consumers', agricultural producers', trading and manufacturers' sectors,) can impose a ceiling price on any basic necessity/prime commodity under any of the following conditions:

1.) Impendency, existence or effects of a calamity

2.) Threat, existence or effect of an emergency

3.) Prevalence/widespread acts of illegal price manipulation

4.) Impendency, existence or effect of any event causing artificial and unreasonable in the price of the basic necessity/prime commodity in question

5.) If the prevailing price of the basic necessity/prime commodity has risen to unreasonable levels

Determination of Price Ceilings

The following factors will be considered to determine a reasonable price ceiling:

1.) The average price of the last 3 months immediately before the proclamation of the price ceiling

2.) Supply availability in the market

3.) The cost to the producer, manufacturer, distributor or seller, including:

4.) The peso to foreign currency exchange rate to which the basic necessity/prime commodity or any of its components, ingredients or raw materials was paid for

5.) Changes in the amortization costs of machinery because of fluctuations in the foreign currency exchange rate with which the machinery was bought through credit facilities

6.) Changes in labor costs caused by changes in the minimum wage

7.) Changes in transportation costs

Government Interference in Patents

Here are 2 instances when the government, by virtue of its police and eminent domain powers, can interfere with the rights of the patent holder without his consent.

Exploitation

The government, or third persons it so authorizes, can exploit an invention without the patent holder's consent if the following requisites:

1.) It is required by public interest (national security, etc.)
2.) The patent holder's way of exploiting his invention is anti-competitive (this is determined by a judicial or administrative body)

The owner of the patent is, of course, entitled to just compensation.

Compulsory Licensing

A person who is capable of exploiting the invention in question can be granted the license by the Director of Legal Affairs to exploit it, even if against the patent holder's wish, if any of the following circumstances are present:

1.) National emergency or similar circumstances that are extremely urgent
2.) Public interest requires
3.) A judicial or administrative body has found the patent holder's exploitation of the invention to be anti-competitive (see exploitation)
4.) The invention is used publicly, but not commercially, and without a satisfactory reason
5.) The invention isn't worked in the Philippines on a commercial scale without satisfactory reason, even if it can be worked on such a scale

In all instances, the patent holder is entitled to just compensation.

Instances 1 to 4 can be raised any time after the patent is granted. 5, on the other hand, can't be invoked until 4 years after the patent holder applied for the patent, or 3 years after the patent was issued, whichever happens last. Also, if the invention wasn't worked in the Philippines but was successfully worked in another country, the government can't deprive the patent holder of his license.

Freedom of Speech 1

This is my 250th post!

With the enactment of RA 10175, I believe it is time we ought to look back at what the 1987 Constitution says about freedom of speech (Art. 3, Sec.4.)

"No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances." -Art. 3, Sec. 4, 1987 Constitution.

Freedom of speech covers every form of expression, regardless of whether it is oral, written or recorded. It includes movies, media (like the internet) and symbolic speech. "Symbolic speech" includes displaying symbols of protest. Primary protection goes to speech on (a.) political, (b.) social or (c.) religious ideas. Commercial speech enjoys protection if (a.) it isn't misleading and (b.) doesn't propose illegal transactions.

The elements of freedom of expression are the following:

1.) Freedom from previous restraint/censorship

2.) Freedom from subsequent (read: later) punishment

Prior restraint means official government restrictions on the press and other forms of expression before there is actual publication or dissemination. It will not apply in the following cases:

1.) If the nation is at war

2.) Obscene publications

3.) To protect the security of community life from incitements to acts of violence or overthrow of orderly government by force

For government regulations/laws on freedom of speech to be justified, the following must be present:

1.) It is within the government's constitutional power

2.) It advances an important or substantial government interest

3.) That interest is not related to the suppression of freedom of expression

4.) The incidental restriction is not greater than what is needed to advance the interest in question

Everybody is entitled to his or her own opinion. The fair comment doctrine tells us that statements of opinion -not of fact- are not actionable (read: aren't punishable) even if the words are neither mild nor temperate! A person's true and honest opinion is important. 

The SC in the case of Borjal vs. CA (301 SCRA 1) explains that even though every discreditable imputation made in public is considered false, when made against a public person in his public capacity it isn't necessarily actionable unless it's a false allegation of fact or a comment based on false supposition.

With regard to public personalities (politicians, actors, etc.) opinions can be aired regarding their public actuations. With regard to opinions on their private lives, such opinions won't enjoy protection if the opinions not germane to the public personae of these public figures.

RA 7080: The Plunder Law

Plunder is committed when a public officer amasses ill-gotten wealth of at least Php50 million by an act or series of overt (read: not secret) criminal acts that may constitute different offenses. It isn't necessary to prove each act distinctly. Simply proving that the acts show a pattern of accumulation is enough. The series of acts are considered a continuing crime. It may be committed by the public officer himself or in connivance with family members and relatives (whether by affinity or consanguinity,) business associates, subordinates or other persons. The crime must, however, be committed in relation to the office of the public officer or another set of laws will apply (Organo vs. Sandiganbayan, GR 136916, December 14, 1999.)

The penalty is reclusion perpetua for the offender and anyone who participated with him in an offense that led to the crime of plunder. It used to be reclusion perpetua to death until the death penalty was abolished in 2006. The court will also declare any and all ill-gotten wealth and their interests and other income and assets (including properties and shares of stock that came from the transactions in question) forfeited in favor of the state.

During the pendency of the case, the official will be suspended. If he's found guilty, he'll lose all retirement and gratuity benefits under any law. If acquitted, he'll be automatically reinstated and entitled to the salaries and other benefits he failed to receive during his suspension unless administrative proceeding have also been filed against him.

If the officer in question belongs to Salary Grade 27 or higher under RA 6758 (Compensation and Position Classification Act) then he will be tried in the Sandiganbayan. If he's grade 26 or lower, he'll be tried in the lower courts (Organo vs. Sandiganbayan.)

In Estrada vs. Sandiganbayan (GR 148560, November 19, 2001) the nature of plunder is that of malum in se (evil in itself.) Mitigating and aggravating circumstances therefore can be applied.

Ill-Gotten Wealth

These are assets, properties, business enterprises or material possessions of the errant public officer (as well as his co-accused outside government) that he acquired directly or indirectly through dummies, nominees, agents, subordinates and/or business associates by a combination or series of the following (or similar) means:

1.) Misappropriation, misuse, conversion or malversation of public funds of raids on the public treasury

2.) Directly or indirectly receiving commissions, gifts, shares, percentages, kickbacks or equities in connection with any government contract or project or by reason of the office/position of the officer in question

3.) Illegal/fraudulent conveyance or disposition of assets belonging to the national government or any of its subdivisions, agencies or instrumentalities (including government-owned/controlled corporations)

4.) Directly or indirectly receiving, obtaining or accepting any shares of stock, equity or any other form of interest or participation (including the promise of future employment in any business enterprise or undertaking)

5.) Establishing agricultural, industrial or commercial monopolies or other combinations and/or implementing decrees and orders intended to benefit particular persons or special interests

6.) Taking undue advantage of official position, authority, relationship, influence or connection to unjustly enrich oneself at the expense of the Filipino people and the Republic of the Philippines

A "combination"  under the definition of ill-gotten wealth refers to at least 2 of any of the above categories. A "series" refers to 2 or more overt criminal acts within each category.

The plunder law's constitutionality has been questioned because of supposedly general terms or vague ones that lack definition. However, this claim has been debunked because there are parameters that it has set (like the Php50 million amount) that make it clear and don't violate the constitutional rights of the accused. If the acts of the public officer in question don't meet the definition of plunder and ill-gotten wealth, other laws like RA 3019, including its provisions on SALN will come into view. The non-government people also have the same law's non-government provisions in case they can't be charged under RA 7080.

Then, of course, there are other related laws. The crime of plunder has a prescriptive period of 20 years.

Local Government Units: the City

The city consists of several urbanized and developed barangays. Like the municipality, it serves as a general purpose government for the coordination of basic, regular and direct services and effective governance of the inhabitants of its territorial jurisdiction. There are 3 kinds of cities:

1.) Component Cities

2.) Independent Component Cities

3.) Highly Urbanized Cities

Component cities are subordinate to the province. Hence, their mayors answer to the governor. Independent component cities are component cities whose charters say nothing about electing their provincial officials and are independent of the province. Highly urbanized cities are also independent of the province and have other characteristics that differentiate them from independent component cities.

A city is created, merged, abolished or have its boundaries substantially altered only by law. The law must be approved in a plebiscite held by COMELEC in the LGU/s directly affected. The plebiscite must be held within 120 days from the passage of the law in question unless the law itself specifies another date or time frame.

Requisites (component and independent component cities:)

1.) Average annual income of Php 20 million for the last 2 consecutive years (certified by the Department of Finance)

2.) Contiguous territory of at least 100 sq. km.(certified by the Lands Management Bureau)

3.) Population of at least 150,000 inhabitants (certified by the NSO)

The creation can't reduce the land area, population and income of the original LGU/s to below the minimum requisites. The territory requirement won't apply if the city in question consists of more than 1 island; it also doesn't have to be contiguous if it comprises 2 or more islands. The average annual income includes the income going to the general fund and excludes specific funds, transfers and non-recurring income.

Requisites (highly urbanized cities:)

1.) Minimum population of at least 200,000 inhabitants (certified by the NSO)

2.) Latest annual income of at least Php50 million based on 1991 constant prices (certified by the city treasurer, not the Department of Finance)

3.) Declaration by the President within 30 days after the city has met the minimum requirements

4.) Approval in a plebiscite (same rules as a component or independent component city)

It's clear from the requirements of a highly urbanized city that it needs to be a city first. Also, if a city doesn't meet the above requirements, it will be considered a component city of the province where it's located in; and if it's located within the boundaries of 2 or more provinces, it will be considered a component city of the province where it used to be a municipality.

Local Government Units: the Municipality

The municipality is a group of barangays. It serves as a general purpose government for the delivery of basic, regular and direct services and effective governance of the inhabitants of its territory. It is created by law, not by ordinance., and subject to a plebiscite held by the COMELEC in the LGU/s directly affected. Once the plebiscite is held, the creation of the municipality takes effect within 120 days from the holding of the plebiscite unless the law creating the municipality specified a different date or time frame.

Requisites:

1.) Average annual income of at least Php 2.5 million (certified by the provincial treasurer) for at least 2 consecutive years

2.) Minimum population of 25,000 inhabitants (certified by the NSO)

3.) Contiguous territory of at least 50 sq. km

The creation of a new municipality must not reduce the territory and population of the original municipalities to below the minimum requisites.

Contiguity of territory isn't necessary if the municipalities consist of 2 or more islands. The territorial jurisdiction of the municipality, like the barangay, must be properly identified.

The average annual income includes the income accruing to the municipality's general fund, excluding special funds, transfers and non-recurring income.

Local Government Units: the Barangay

The baragnay is the basic political unit of the Philippines and serves as the primary planning and implementing unit of government policies, plans, programs, projects and community activities. It is also the forum where the people's collective views are brought out and where disputes can be settled amicably.

Barangays are created, merged, abolished substantially altered in its boundaries either by a law or an ordinance passed by the provincial (in case of a municipality) or city sanggunian. The law or ordinance, however must be approved in a plebiscite held by COMELEC in the LGU concerned. In case the barangay is created, etc. by the provincial sanggunian, there must be a recommendation by the municipal sanggunian for that purpose.

Requirements:

1.) Contiguous territory with a minimum population of 2,000 inhabitants (certified by the NSO) or 5,000 in case highly urbanized cities as well as cities and municipalities within the NCR (the creation of a new barangay must not reduce the population of the previous one)

2.) Territorial jurisdiction must be clearly defined, taking into consideration natural boundaries (rivers, lakes, etc.)

3.) A contiguous territory isn't necessary if the barangay consists of 2 or more islands

Barangays may be created within indigenous cultural communities by law in order to facilitate the delivery of basic services.

The governor or city mayor can prepare a consolidation plan for the barangays within his/her jurisdiction and submit it to the appropriate sanggunian for appropriate action. For municipalities within the NCR, the municipal mayor can do the same thing and submit the plan to the municipal sanggunian.

Disciplinary Actions for Elective Local Officials

Grounds

Disciplinary actions for elective local officials are found in sec. 60 to 68 of the Local government Code (RA 7160.) The grounds for discipline, suspension or removal from office for local elective officials are listed below. If proven, the proper court may order the official's removal:

1.) Disloyalty to the Republic of the Philippines

2.) Culpable violation of the Constitution

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

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

5.) Abuse of authority

6.) Unauthorized absence for 15 consecutive days (except in case of members of the sanggunians)

7.) Application for/acquisition of foreign citizenship, residence or immigrant status in another country

8.) Other grounds provided for in the Local Government Code and other laws

If the complaint is filed with the courts, then we have to follow court procedure. Elective officials with a Salary Grade of 27 and above will be tried by the Sandiganbayan. Below that, the regular courts come into play. 

Below is the administrative procedure of disciplining local elective officials. The rule on exhaustion of remedies, the question of whether we go straight to the courts or follow administrative process, is applicable here.

Administrative Complaints

A.) Form and Notice

A verified complaint must be filed against the elective local official in question and must be filed with the following government offices:

1.) The Office of the President: for elective officials of a province or city (whether highly urbanized, independent component or component)

2.) The sangguniang panlalawigan: for the officials of a municipality (appealable to the president)

3.) The city or municipal sanggunian: for elective barangay officials (the decision becomes final and executory)

Within 7 days from the filing of the complaint, the president or sanggunian concerned will order the official in question to submit a verified answer within 15 days from receipt of the order. Investigation will begin within 10 days after receiving the answer of the official in question.

Take note of "verified." No verification means that the complaint will be junked.

If the official in question is of a province or highly urbanized city, the hearing and investigation will be done in the place where he holds office. Other elective officials will be heard and investigated in the sanggunian concerned.

An investigation can't be held within 90 days before any local election; the same holds true for a preventive suspension. If  preventive suspension has been imposed before the 90-day period before the local election, it will automatically be lifted when the 90-day period starts. This is because the courts have recognized the electorate's power to forgive and condone an erring official through the local elections (Salalima vs. Guingona, 257 SCRA 55) but this forgiveness can't apply to criminal acts.

B.) Preventive Suspension

Preventive suspension may be imposed by the following:

1.) The president: if the official in question belongs to a province or a highly urbanized or independent component city

2.) The governor: if the official in question belongs to a component city or municipality

3.) The mayor: if it's a barangay official

Preventive suspension can be imposed at any time after the issues in the complaint are joined and the evidence of guilt is strong; taking into consideration also the gravity of the offense and the possibility that the official in question could influence witnesses or pose a threat to the integrity of the investigation's records and evidence. Preventive suspension lasts for a maximum of 60 days, but if several complaints are filed against the same official he can't be suspended for more than 90 days in a single year for the same ground/s existing at the time of the first suspension. 

After the suspension period expires, the official is automatically reinstated but the investigation will continue. The investigation lasts for a maximum of 120 days, beginning from the time the official in question was formally notified of the case against him. If he causes delays in the investigation through request, fault or neglect (but not appeal) the period of delay won't be included in the 120-day period.

Abuses in the power of preventive suspension are to be treated as an abuse of authority. 

The official in question won't receive his salary or compensation while the suspension is in effect, but if exonerated and reinstated he'll be paid his salary and other emoluments including the ones that accrued during his suspension. Indefinite preventive suspension is not allowed (Layno vs. Sandiganbayan, 136 SCRA 536.)

The 120-day period mentioned above is divided into 2 parts: a maximum of 90 days investigation proper and a maximum of 30 days period after the end of the investigation within which a decision is to be rendered. If found guilty and the penalty is suspension, the suspension term can't last longer than 6 months for every administrative offense. If an elected official has been punished with suspension, he can still run for office as long as he's still qualified. This won't be the case if he's removed from office. If removal is the appropriate penalty, that official will be barred from running for any elective office.

C.) Appeals

Appeals are to be made within 30 days from receipt of the decision. In case the decision is made by a municipal or component city sanggunian, an appeal is to be made to the provincial sanggunian. If the decision in question comes from the provincial, highly urbanized or independent component city sanggunian, appeals are to be made to the president. 

Appeals will not prevent a decision from becoming final and executory. While on appeal, the official in question will be treated as being preventively suspended.

Treaties

The 1969 Vienna Convention on the Law of Treaties defines a treaty as "an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more instruments and whatever its particular designation."  International organizations can be made parties to treaties. Treaties are intended to create legal rights and obligations for the parties who enter into them. Alternate terms for "treaty" include "convention," "pact," "agreement," "protocol," accord," "general act," "final act" and "exchange of notes." An "executive agreement" is not a treaty but is equally binding as a treaty. If there is a dispute of whether the agreement is a treaty of executive agreement, the DFA and the Senate must agree and submit their findings to the president.

Treaties deal generally with basic political issues and need concurrence. They can restrict the sovereignty of a state. Executive agreements deal with details in enforcing national policies and temporary arrangements; they don't need senatorial concurrence. 

An exchange of notes is a record of a routine agreement similar to a private law contract. It's merely exchanging 2 documents where the accepting state repeats the text of the offering to record its acceptance. It's a technique used often because of speed and it avoids legislative approval.

If one state ratifies a treaty, it can't make the other state that signed it ratify it as well.

For a treaty to be valid, the following must be present:

1.) Treaty-making capacity

This is an attribute of sovereignty. Both states and international organizations have this capacity.

2.) Competence of the representative/body concluding the treaty

This power generally belongs to the head of state. In the Philippines, the president has this power, but the conclusion must be ratified by a 2/3vote of the Senate.

3.) Freely-given consent of the parties

If the consent wasn't free or if fraud or errors were committed, the treaty is voidable (valid until its validity is questioned.) If the representative of one state was corrupted in the negotiation by another negotiating state, the treaty is invalid. Unequal treaties imposed by force are void (doctrine of unequal treaties.) The subject matter of the treaty must be lawful. A treaty is illegal if violates an absolute rule in international law. Derogations of customary international law is not allowed (jus cogens.) Accordingly, treaties with provisions contrary to international law are invalid (ex. torture of prisoners.)

4.) Ratification under the constitutional processes of the participants

In the Philippines, a treaty requires a 2/3 vote of the whole Senate to complete the ratification process.

The steps in making a treaty are the following:

1.) Negotiation

The representatives bear documents of full powers (pleine pouvoirs) of their states to enter into treaties with the willingness to observe them. There are cases, however, when certain people (like heads of state, foreign ministers, etc.) enter into the negotiations. The negotiations are privileged and can't be published or it would affect the way the country deals with future negotiations (AKBAYAN vs. Aquino, GR 170516, July 16, 2008.)

2.) Signing

The order of naming the parties and plenipotentiaries is varied so each party is named and each plenipotentiary signs first in the document to be kept by it (principle of alternat.) Ex. in a treaty between the US and the Philippines, the Philippine chief negotiator signs the Philippine copy first while the American chief negotiator signs the american copy first.

3.) Ratification

The states approve and confirm the treaty, signifying their willingness to abide by it. In the Philippines, ratification is done by the president with a 2/3 concurring vote from the Senate. In case there is an existing treaty another state can become a party to it by accession; the new member is invited or permitted to join by any of the existing contracting parties. When a state signs a treaty but wants to modify it, it's called a reservation; the state that made the reservation is still a party to the treaty, provided that the reservation is compatible with the treaty's object and purpose.

4.) Entry into force

Every international treaty is to be registered with the UN. Enforcement of the terms is dependent on what the negotiating parties agreed on. If no agreement was made, a treaty enters into force when all the parties consent to it. There is already consent when there is an exchange of instruments, ratification, approval, accession or if the treaty provides so, upon deposit of the instruments with a named depositary and notification to the parties of the deposit.

Treaties can't impose obligations on non-parties (pacta tertiis nocent nec prosunt) except by accession or adhesion. Other states can be bound to a treaty by a "most favored nation" clause.

Treaties must be observed in good faith. The state, if necessary, must modify its laws accordingly to prevent an international embarrassment (pacta sunt servanda.) In the Philippines, however, if a treaty is contrary to the constitution it will be declared invalid. The obligations under a treaty are terminated when a fundamental or vital change happens that allows the state to withdraw from the treaty (rebus sic stantibus.) For withdrawal to be invoked, the following must be present:

1.) The change is substantial that it removes the treaty's foundation

2.) The change was unforeseeable when the treaty was concluded

3.) The change wasn't caused by the party who wants to withdraw

4.) Withdrawal must be invoked at a reasonable time

5.) The treaty's duration must be indefinite

6.) Withdrawal will not have retroactive effect

Treaties are to be interpreted in good faith and in the ordinary meaning. Later agreements, annexes, text, etc. are to be considered in its interpretation. Modification requires the consent of all the parties (but the treaty may sometimes allow modification.)

Treaties are terminated for the following reasons:

1.) Expiration or withdrawal of a party in accordance with the treaty.

2.) Extinction of one of the parties (in case of bipartite treaties) when the rights and obligations of the extinct state will not be inherited by its successor.

3.) Mutual agreement.

4.) Denunciation by a party (the right to give notice of withdrawal or termination is called the right of denunciation.)

5.) Supervening impossibility of performance.

6.) Loss of the subject matter.

7.) A later inconsistent treaty concluded by the parties.

8.) Material violation or breach.

9.) Rebus sic stantibus

10.) War between the parties, unless the treaty relates to the conduct of war.

11.) Severing of diplomatic relations if the relations are indispensable for the treaty's application.

12.) Jus cogens or if a new norm of international law comes out that revises or replaces the old norm or makes the existing treaty void.

Refugees and Asylum

Asylum is the power of a state to to admit an alien seeking refuge from persecution or prosecution into its territory and placing him under its protection. Though widely practiced, this is not a principle of international law.

There are 2 kinds of asylum: political and diplomatic. Territorial asylum exists if there is a treaty or there is established usage. It depends on the liberal attitude of the receiving state and is based on territorial supremacy. Diplomatic asylum exists also if there is an existing treaty or established usage. It is granted in very limited circumstances and very definite limitations or when the life or liberty of the person claiming asylum is under threat.

The Philippines does not grant diplomatic asylum except to the diplomatic corps and their families and representatives. It may, on humanitarian grounds, be granted to those in danger of mob violence and only for as long as that violence exists.

A refugee is a person outside his home country or a stateless person outside the country of his habitual residence because of persecution of his race, religion, nationality or political opinion and can't be protected by his home country either because of fear or actual harm or can't go back to the country he habitually resides it if he's a stateless person.

Refugee status consists of the following elements:

1.) He is outside his home country or, if stateless, outside the country where he habitually resides.

2.) Lacks national protection.

3.) Fears persecution.

Refugees are treated as stateless persons, whether de jure or de facto, and the host state is obliged to grant them temporary asylum. Host states can't expel  refugees or return them to their home country (non-refoulement.)

Judicial Review of Administrative Decisions

Post No. 100 enumerated the exceptions to the exhaustion of remedies doctrine. This one covers the overall view of what judicial review of administrative decisions constitute. The questions to be raised in cases of judicial review of administrative bodies are grouped into the following:

1.) Questions of Law

2.) Questions of Fact

Generally, factual findings are binding on the court if backed by evidence. The court will not entertain questions of fact unless any of the following are present:

a.) The law clearly allows it.

b.) There was fraud, an imposition or a mistake other than an error in judgment when the evidence was evaluated.

c.) The body committed an error in appreciating the pleadings or interpreting the documentary evidence.

3.) Questions of Mixed Law and Fact

If factual findings are involved in and dependent on resolving a legal question.

Factual findings are given attention if they're supported by sufficient evidence (see Levels of Evidence.) Findngs based on the expertise of the different agencies are given a lot of respect. Factual findings, however can be challenged if their credibility is called to question. In that case, the court will try to come up with a finding that is close to the evidence. Administrative findings can only be set aside if there is proof of fraud, grave abuse of discretion or errors of law.

A judicial review is not a de novo trial. It's an inquiry into whether the findings of the administrative bodies are consistent with law, supported by evidence and fraud-free.

Fundamental Rights of States

1.) Existence and Self-preservation

Under Art. 51 of the UN Charter every state has the right to individual and collective self-defense (such as through mutual defense agreements.) This right can only be invoked when there is an actual and serious event. The Security Council will also have to determine if an act of aggression actually takes place.

An act of aggression, one state using force against another, is prima facie evidenced when one state fires the “first shot” against another. Aggression, whatever the cause, is a crime against international peace and all states have the right to repel it.

2.) Sovereignty and Independence

Sovereignty is the sum total of the powers, privileges of a state. It is not dependent on another state's consent. Independence is the right to participate in foreign relations without outside control. It is a natural, but not absolute, right. It can be limited by treaty stipulations, international agreements and membership rules in international organizations.

Intervention, where a state interferes with the foreign or domestic affairs of another state (which can include political and economic sanctions) is not allowed (Drago Doctrine) -except as a form of self-defense or with UN authorization. Even the UN can't intervene in the domestic affairs of a state unless necessary to prevent threats to peace or acts of aggression.

3.) Equality

All states are equal. Each state is entitled to only 1 vote in the UN General Assembly. But this is not the case in the voting in the Security Council.

All states must respect one another's independence and no state can interfere in the domestic affairs of another state (act of state doctrine.) Official acts within the territory one state can't be questioned by other states and conflict between states because of these acts must be resolved by agreement. Official acts are those acts which an office of government can perform within its mandate.

When the Philippine Government sued the Marcoses, the Marcoses put up the defense that the acts that took place during the Martial Law years were acts of state. This was overruled by the US Court of Appeals on the ground that torture and disappearances were not within the official limits of presidential power.

As a result of equality, a state also enjoys immunity from another states powers. This is the source of diplomatic immunity, which also covers the property of a state located in the territory of other states (par in parem non habet imperium.) It also covers diplomatic personnel of the UN and other international bodies.

Diplomatic immunity, however, is restricted only to official acts of the state and can't be invoked for private or proprietary acts. This immunity is lost if a state files a case in the courts of another state.

When the government of one country enters into a contract with a private citizen of another country, the purpose of the contract determines whether or not diplomatic immunity can be invoked. If the contractor was hired to do something which forms part of the official acts of the state (jus imperii) diplomatic immunity can be invoked. If the contract was for something not included in the official acts (jus gestionis) then diplomatic immunity can be overruled.

Immunity can be waived by a state in any of the following instances: if it indicates that it will consent to the filing of suit either by law or regulation at the time the complaint appeared; tries to resolve the case before invoking diplomatic immunity; or gives its consent by a treaty or contract.

Exhaustion of Remedies

This is my 100^th post; a milestone. Hurray!

If you have a problem in an administrative body and it hands you an unfavorable decision in your case, going to court isn't automatic. The body must be given a chance to correct its errors. For the sake of comity and convenience, the courts won't come into the picture until the administrative processes are finished. Accordingly and depending on the particular administrative body, appeals should go through the regional director and all the way to the appropriate department secretary before you go to court. Once started, an administrative action must be pursued until its completion (doctrine of finality of administrative action.) If you back a way, you have a problem.

Even if you file a special civil action, the courts will dismiss it if they see that you didn't take the other remedies available. That includes questioning the legality of a tax. Even a certiorari can be turned down if you didn't exhaust the other available remedies.

The courts will not touch an administrative body's decision because they presuppose that the body's technical knowledge should first be applied before they can examine any claim of wrongdoing. Decisions of the administrative bodies are given considerable thought by the courts, and in many cases can even influence a court decision. This is known as the doctrine of prior resort.

There are, however, exceptions to the rule on exhaustion of remedies. These are the following:

1.) The alter ego doctrine/doctrine of qualified political agency

All official acts of a member of the cabinet are considered official acts of the president himself. Consequently, if a department undersecretary makes a ruling it's as if it was made by the department secretary himself. In that case, the next resort is the courts. Some departments even have rules that specify which court the decision should be appealed to. Decisions of the DAR secretary, for instance, can be brought to the CA.

2.) The remedy is pointless/useless

3.) The administrative agency is in estoppel

Estoppel is a defense of one party if the other party doesn't act despite the opportunity given.

4.) If the issue in the case involves a pure legal question

There is a question of law when there are doubts about what the law says caused by the facts proven in the case. One example would be somebody questioning the penalty for a particular violation, calling it excessive, but admitting to his own wrongdoing (Castro vs. Secretary, GR 132174, August 20, 2001.)

5.) The administrative action is illegal

If the action is made beyond the jurisdiction set by law, or obviously gross.

6.) Unreasonable delay or inaction on the part of the administrative body

7.) If court action is necessary to prevent irreparable damage

8.) In land cases where the subject matter is private land

9.) If the law itself doesn't make exhaustion as a requirement for later judicial action

Ex. See my post “Paths to the CTA.”

10.) If observing the rule on exhaustion of remedies will obliterate the claim

11.) When there are special reasons or circumstances that need immediate court action

If there are no remedies available in the administrative body, then resort can be made to the courts. The SC laid down 2 requirements for this: first, the circumstances show that a court action is urgent; and second, the administrative action is clearly illegal and the body lacks jurisdiction.

12.) If there is a clear violation of the right to due process

Ex. if the government confiscated your land for public purposes but didn't inform you nor pay compensation.

13.) If the rules don't provide an adequate and fast remedy

Exhaustion may be disregarded in any of the following instances: denial of due process, pure legal questions, a grossly illegal action, estoppel, irreparable damage, secretaries acting as the president's alter ego, if exhaustion is unreasonable, if the claim will be lost in the process of exhaustion, private land in land cases, judicial intervention is necessary and no other adequate remedy is available.

Powers of the Administrative Bodies

The powers of the administrative bodies are the following:

1.) Rule-making/Quasi-legislative

2.) Quasi-judicial/adjudicating

3.) Determinative

Rule-making/Quasi-legislative

Powers delegated by the government to any of its offices can't be delegated by these offices to others further down the line. The rule-making power is the power of a government office to set the details in the enforcement of the law/laws which the office operates under. These rules and regulations have the force and effect of law; they bind whoever comes under them and the courts can take judicial notice of them. There are 3 kinds of administrative rules and regulations:

1.) Supplementary/Detailed

These rules establish the details  in enforcing policies mentioned in the law, such as the Implementing Rules of the Labor Code.

2.) Interpretative Legislation

These guide the decisions of administrative rulings by interpreting the laws to be enforced (ex. liberal interpretation of tax laws in favor of the taxpayer.)

3.) Contingent Legislation

These rules are made because of certain things which influence law enforcement. They're avoided today because of the risk involved.

To be valid, they have to be issued  in accordance with law and are limited to the extent that the law allows them. If they exceed the limit, they can be attacked. They can, however, be used to fill in gaps that the law has. Rules and regulations that are inconsistent with law have no effect. The rules must also be reasonable because decisions of the administrative bodies only require substantial compliance, not preponderance of evidence or proof beyond reasonable doubt. They must also be published in the Official Gazette, the government's official newspaper, or, under EO 200, in a newspaper of general circulation. Unpublished rules  have no effect; they deny the individual the constitutional right to due process. If the rules are procedural or just legal opinions, they don't need notification. Hearing also isn't necessary for the issuance of a rule.

In case the administrative rules have penalties, the law itself must fix the penalty for the violation of the rules and declare these violations as punishable.

Determinative

There are 5 of these:

1.) Enabling

These powers permit activities which the law wants to regulate (ex. issuing of business licenses.)

2.) Directing

These are exercised when, for instance the BIR performs an assessment.

3.) Dispensing

These grant exemptions from a general prohibition or relieve a person or entity from an affirmative duty.

4.) Examining/Investigation

The production of documents, evidence and witnesses can be demanded. Although calling of witnesses isn't inherent in an administrative body, administrative officers can summon witnesses, administer oaths, etc. An administrative body can't punish non-compliance with contempt unless the law allows it.

5.) Summary

The power to use force against persons or property  without a judicial warrant in order to accomplish a legal purpose (such as in abating nuisances.)

Quasi-judicial/Adjudicatory

Decisions of administrative bodies  have the following requisites:

1.) Right to a hearing (and the right against self-incrimination)

2.) The body must consider the evidence presented

3.) The decision must be well-based

4.) The evidence must be substantial

5.) The decision must be based on the evidence, contained in the record and communicated to the parties

6.) The members of the body must act according to their own individual assessment of the facts

7.) The decision must inform the parties of the issues involved and how the conclusion was reached

Administrative due process is not equal to judicial due process, both in application of rules and the degree weight of the evidence. You have to bring your case all the way up to the president, who has review powers over the different branches and can directly or indirectly (alter ego doctrine) take consideration of the case (with certain exceptions, of course.) After that, you have to go to the courts; administrative decisions aren't part of the legal system.

There are, however, certain cases where notice and hearing are dispensed with:

1.) Granting provisional authority to increase rates or engaging in a particular line of business

2.) Summary proceedings for distraint and levy in the case of delinquent taxpayers

3.) Cancellation of a passport if the DFA secretary didn't commit an abuse of discretion

4.) Summary abatement of nuisances per se

5.) Preventive suspension of a public officer while under investigation

De Facto Officers

The case of Torres vs. Ribo (81 Phil 44) defines a de facto officer as "one who has the reputation of the officer that he assumes to be, and yet is not a good officer in point of law." He must have acted as a officer long enough and came to power under a colorable (read: defective) authority or by the acquiescence of the people and local authorities. The actions of a de facto officer are considered to have legal effect and are binding. This is for the protection of  people who get involved in the official acts of a person performing the duties of a public office.

These are the elements:

1.) A validly existing public office

2.) Actual physical possession of that office

3.) The title to the office is colorable/defective

The office has a colorable title in any of the following instances:

1.) By reputation/aquiescence: everybody supposes that the person holding the office is the legal occupant and nobody questions it. Usually, it happens when somebody has been holding the office for a considerable length of time and everybody as a result thinks he is the officer that he claims to be.

2.) There is a valid appointment or election but the officer didn't meet certain requirements prescribed by the law (like not taking the oath of office.)

3.) There is an appointment or election that is void because the officer in question isn't eligible or the appointing/electing authority had no power  and nobody knew that this was so (ex. the president appointing somebody to an elected position.)

4.) Coming to officer through a known appointment or election under a certain law that was later declared unconstitutional.

The rightful officer can recover all the salaries and other benefits from the de facto officer even if the de facto officer assumed office in good faith. What matters, in the first place, is that there is color/doubt to this title. If, however, there is no de jure (lawful) officer the de facto officer is entitled to the salaries and benefits of his office and can even file a case to recover them. Also, if the officer committed unlawful acts before legally assuming office, he can be held liable for damages.

Neutrality

Neutrality is non-participation, whether direct or indirect, in war. It exists only during war and is governed by international law. A state that doesn't participate in armed conflict but doesn't behave like a neutral (non-belligerency) isn't considered as a neutral. Semi-neutrality is not recognized in international law.

Neutrality ends when the hostilities cease or when the neutral country itself enters the war.

Neutralization is international law refers to a state becoming neutral permanently (like Switzerland.) Neutralization is the result of a treaty where the neutrality and independence of a state is guaranteed by other states, usually the superpowers, under the condition that the neutralized state will not participate in military conflicts except in self-defense.

Rights and Duties of Neutral States

1.) Not to take part in armed conflict and giving assistance to any of the belligerents by either sending troops, granting official loans or carrying contraband.

2.) To prevent its territory and other resources to be used in the conduct of hostilities (ex. allowing use of its airspace.)

3.) Agree to restrictions and limitations imposed by the belligerents such as blockades and visit and search of neutral vessels (and sometimes subjection to the authority of prize courts.)

Contraband

In international law, this refers to goods that come from a neutral source but can be seized because of their usefulness in war or are destined for enemy ports. Contraband can be absolute (like weapons,) conditional (like food and clothing, which can be used by anybody) or free list (like medicines.) Free list cargo is exempt from contraband on humanitarian grounds. Goods intended for civilian use which will end up in enemy hands can be seized on the way (doctrine of ultimate consumption.) Innocent goods shipped together with contraband may also be seized (doctrine of infection.) Goods unloaded in an intermediate port or loaded onto another vessel may also be seized due to the doctrine of ultimate consumption (doctrine of continuous voyage/transport.)

Blockade

A blockade is an operation where vessels and aircraft of a belligerent or neutral state are prevented from entering or leaving the ports of another belligerent. The purpose of a blockade is to shut an enemy state off from international trade and communication. Pacific blockades refer to the vessels of states under blockade, not to other states. The requisites of a blockade are the following:

1.) Binding: duly communicated to neutral states

2.) Effective: maintained by enough forces to make entry and exit of the blockaded area dangerous

3.) Established by the belligerent government's competent authority

4.) Limited only to enemy territory

5.) Applied without bias to all states

A neutral vessel captured for breaching a blockade is presumed to know about the blockade. Belligerent forces have the right to board and search neutral vessels to find out if they are in any way connected to the hostilities. Vessels captured for engaging in hostile activities aren't automatically confiscated. They're brought before a prize court, which is a court established by the belligerent under its own laws, or under international law  (if there is no local legislation) in its territory or in that of its allies.

War 2

Belligerent occupation is when territory has been temporarily occupied by a foreign invader. It isn't necessary that the invader occupy every square foot of ground. What matters is that he can control the area effectively and has military superiority in it. There is no change in sovereignty although the political laws of the area, except laws on treason, are suspended.

Rights and Duties in an Occupation:

1.) Reestablish or continue the ordinary administrative functions, including making laws.

2.) Adopt measures to protect the inhabitants.

3.) Requisition/sequester goods and services for civilian projects with payment of cash, whether immediate or future.

4.) No conscription

5.) Collect taxes for military and local administrative needs.

6.) Issue legal currency.

7.) Use of enemy property, whether public or private; but private property must be returned or paid for at the end of the war.

8.) Angary

An occupying power can forage on the enemy's territory if obtaining supplies through the normal channels is inconvenient. Compensation, however, must be paid at the end of the war.

Angary is the right of a belligerent state to use or destroy neutral property located on its own or enemy territory when it's absolutely necessary.

Acts of Non-Hostile Intercourse:

1.) Flag of truce: white flag indicating a desire to communicate with the enemy. The agent is called a parlementaire, can't be violated and is entrusted with negotiating with the enemy.

2.) Cartels: agreements to regulate intercourse during wartime, usually on prisoner exchange.

3.) Passport: written permission given by the government to let enemy subjects travel generally within the territory.

4.) Safe-conduct: permission given to an enemy subject or vessel to allow passage between ports.

5.) Safeguard: protection given by the commanding officer to enemy subjects or property under his command, usually with an armed escort. 

6.) License to trade: permission by a competent government office given to individuals to carry on with trade even though there's a war. 

Hostilities are suspended in the following instances:

1.) Suspension of arms: temporary cessation of hostilities by agreement of local commanders in order to gather the wounded and bury the dead.

2.) Armstice: suspension of hostilities by agreement of the belligerents in a certain theater or the whole area of the war, usually in order to implement the peace terms.

3.) Ceasefire: unconditional cessation of hostilities, usually done by an international body like the UN.

4.) Truce: conditional ceasefire for political purposes.

5.) Capitulation: surrender of enemy forces, places, etc. in accordance with military custom.

War is terminated either by a simple cessation of hostilities (usually by uti possidetis) with regard to property and territory in the belligerents' possession, concluding a negotiated peace treaty or defeat of the enemy (which is followed either by a dictated peace treaty or annexation of occupied territory.) Uti possidetis allows the belligerent to retain property or territory in its actual possession during the cessation of hostilities.

At the end of the ward is what is called the postliminium in case the invader leaves the conquered territory. The old laws and sovereignty are restored.

Juridical acts and proceedings during the occupation that aren't political in character are considered valid even after the occupation.

War Crimes

War criminals are persons whether military or not, who commit a violation of international law governing armed conflicts during wartime. They are punished by the winner at the end of hostilities.