2013BarReviewerinPoliticalandInternationalLaw

8/11/2019 2013BarReviewerinPoliticalandInternationalLaw

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A. The Philippine Constitution

1. Constitution: Definition, Nature and Concepts

The document which serves as the fundamental law of the state.1

That writteninstrument enacted by direct action of the people by which the fundamental powers of thegovernment are established, limited and defined, and by which those powers are distributedamong the several departments for their safe and useful exercise for the benefit of the bodypolitic.2

2. Parts

Constitution of Liberty The series of prescriptions setting forth thefundamental civil and political rights of the citizens

and imposing limitations on the powers ofgovernment as a means of securing the enjoyment ofthose rights.3

Constitution of Government The series of provisions outlining the organization ofthe government, enumerating its powers, layingdown certain rules relative to its administration,and defining the electorate.4

Constitution of Sovereignty The provisions pointing out the mode or procedurein accordance with which formal changes inthe fundamental law may be brought about.5

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3. Amendments and Revisions

Amendment Isolated or piece-meal change only.6

Revision A revamp or rewriting of the whole instrument.7

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

Self-executing provision One which is complete in itself and becomesoperative without the aid of supplementary orenabling legislation, or that which supplies asufficient rule by means of which the right it grants

may be enjoyed or protected.

Non-Self-Executing Provision One which lays down a general principle

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5. General Provisions8

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

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

The State may not be sued without its consent.11

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

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

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

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

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

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

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

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

may extend such tour of duty.13

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

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

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

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

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

The ownership and management of mass media shall be limited to citizens of thePhilippines, or to corporations, cooperatives or associations, wholly-owned and managed bysuch citizens.

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

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

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

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

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

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B. General Considerations

1. National Territory21

a. Archipelagic Doctrine

It is defined as “the waters around, between and connecting the islands of thearchipelago, regardless of their breadth and dimensions, form part of the internal waters of thePhilippines.”22

It emphasizes the unity of the land and waters by defining an archipelago asgroup of islands surrounded by waters or a body of waters studded with islands.

2. State Immunity23

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

It is a different matter where the public official is made to account in his capacity as suchfor acts contrary to law and injurious to the rights of plaintiff. Inasmuch as the State authorizesonly legal acts by its officers, unauthorized acts of govt. officials or officers are not acts of theState, and an action against the officials or officers by one whose rights have been invaded or

violated by such acts, for the protection of his rights, is not a suit against the State within therule of immunity of the State from suit. The doctrine of state immunity cannot be used as aninstrument for perpetrating an injustice.

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

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3. General Principles and State Policies24

General Principles25

The Philippines is a democratic and republican State26. Sovereignty resides in the people

and all government authority emanates from them.27

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

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

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The prime duty of the Government is to serve and protect the people. The Governmentmay call upon the people to defend the State and, in the fulfillment thereof, all citizens may berequired, under conditions provided by law, to render personal, military or civil service.30

The maintenance of peace and order, the protection of life, liberty, and property, and the

promotion of the general welfare are essential for the enjoyment by all the people of theblessings of democracy.31

The separation of Church and State shall be inviolable.32

State Policies33

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

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

The State shall promote a just and dynamic social order that will ensure the prosperityand independence of the nation and free the people from poverty through policies that provide

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adequate social services, promote full employment, a rising standard of living, and an improvedquality of life for all.36

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

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

human rights.39

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

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

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

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

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

The State shall give priority to education, science and technology, arts, culture, andsports to foster patriotism and nationalism, accelerate social progress, and promote total humanliberation and development.45

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

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

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

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

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

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

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

The State shall ensure the autonomy of local governments.53

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

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

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

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4. Separation of Powers57

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

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

5. Checks and Balances

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

6. Delegation of Powers

General Rule: Potestas delegata non potest delegare

- premised on the ethical principle that delegated power constitutes not only aright but a duty to be performed by the delegate through the instrumentality of his ownjudgment and not through the intervening mind of another.

Exceptions:58

1. Tariff powers of the President59

2. Emergency powers of President60

3. Delegation to the people;61

4. Delegation to Local Government units;62 and

5. Delegation to administrative bodies63.

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7. Forms of Government

Presidential One in which the state, the sovereign, makes theexecutive independent of the legislature, both in tenure

and prerogative, and furnishes him with sufficientpower to prevent the legislature from trenching upon thesphere marked out by the State as executive independenceand prerogative.64

Parliamentary One in which the state confers upon the legislature thecomplete control of the administration of laws. Underthis system, the Cabinet or Ministry is immediately andlegally responsible to the legislature or one branchthereof, usually the more popular chamber, and

mediately or politically responsible to the electorate, whilethe titular or nominal executive – the King or Chief ofState- occupies a position of irresponsibility.65

Unitary or centralized One in which the powers of government are vested inone supreme organ from which all local governingauthorities derive their existence and powers. ThePhilippine government is an example of a unitaryform of government.66

Federal One in which the governmental powers are, bycommon sovereign, distributed between a centralgovernment and the local government, each beingsupreme within its own sphere.67

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C. Legislative Department68

1. Who May Exercise Legislative Power 69

a. Congress

The power of the Congress to legislate is complete, full and plenary embracing allsubjects and extends to all matters of general concern except as limited by the Constitution,either explicitly or impliedly, or, substantively or procedurally.

b. Regional/Local legislative power

The power of a regional or local legislative body to make rules in the form of ordinancesand resolutions of regional or local application that have the force and effect of law.

c. People’s initiative on statutes

i. Initiative and Referendum

Initiative70 Referendum71

Power of the people to proposeamendments to the Constitution or topropose and enact legislation throughan election called for the purpose.

Power of the electorate to approve orreject legislation through an election calledfor that purpose.

d. The President under a martial law rule or in a revolutionarygovernment

1. The President can:

a. Legislate;b. order the arrest of people who obstruct the war effort.

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2. The following cannot be done:

a. suspend the operation of the Constitution.b. Supplant the functioning of the civil courts and the legislative assemblies;c. Confer jurisdiction upon military courts and agencies over civilians, where civil

courts are able to function.72

d. Automatically suspend the privilege of the writ of habeas corpus.73

2. Houses of Congress

a. Senate

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

b. House of Representatives

Composed of not more than 250 members consisting of:

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

ii. Party-list Representatives – shall constitute 20% of the total number ofrepresentatives, elected through a party-list system of registered national, regional andsectoral parties or organizations.74

(1) District Representatives and Questions of Apportionment

Representative districts are apportioned among provinces, cities and municipalities inaccordance with the number of their respective inhabitants, and on the basis of a uniform andprogressive ratio.75

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

Each district must be contiguous, compact and adjacent. Gerrymandering 76 is notallowed.

Reapportionment within 3 years following return of every census.

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(2) Party-List System

The party-list system is a mechanism of proportional representation in the election ofrepresentatives to the House of Representatives from national, regional and sectoral parties ororganizations or coalitions thereof registered with the COMELEC.77

3. Legislative Privileges, Inhibitions and Disqualifications

A Senator or Member of the House of Representatives shall, in all offenses punishableby not more than six years imprisonment, be privileged from arrest78 while the Congress is insession. No Member shall be questioned nor be held liable in any other place for any speech ordebate in the Congress79 or in any committee thereof.

All Members of the Senate and the House of Representatives shall, upon assumption ofoffice, make a full disclosure of their financial and business interests. They shall notify theHouse concerned of a potential conflict of interest that may arise from the filing of a proposed

legislation of which they are authors.80

No Senator or Member of the House of Representatives may hold any other office oremployment in the Government, or any subdivision, agency, or instrumentality thereof,including government-owned or controlled corporations or their subsidiaries, during his term

without forfeiting his seat. Neither shall he be appointed to any office which may have beencreated or the emoluments thereof increased during the term for which he was elected.81

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No Senator or Member of the House of Representatives may personally appear ascounsel before any court of justice or before the Electoral Tribunals, or quasi-judicial and otheradministrative bodies. Neither shall he, directly or indirectly, be interested financially in anycontract with, or in any franchise or special privilege corporation, or its subsidiary, during histerm of office. He shall not intervene in any matter before any officer of the Government for

his pecuniary benefit or where he may be called upon to act on account of his office.82

4. Quorum and Voting Majorities

A majority of each House shall constitute a quorum to do business, but a smallernumber may adjourn from day to day and may compel the attendance of absent Members insuch manner, and under such penalties, as such House may provide.83

5. Discipline of Members84

Each house may punish its members for disorderly behavior85, and, with the concurrence

of 2/3 of all its members, suspend86

or expel a member. A penalty of suspension, when imposed,shall not exceed sixty days.

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6. Electoral Tribunals and the Commission on Appointments

a. Nature

Electoral Tribunal87 Commission on Appointments88

Independent of the Houses of Congress, andits decision may be reviewed by the SC

only upon showing of grave abuse ofdiscretion in a petition for certiorari filedunder Rule 65 of the Rules of Court.89

It acts as a legislative check on theappointing authority of the President. Forthe effectivity of the appointment of certainkey officials enumerated in the Constitution,the consent of the Commission on

Appointments is needed.

b. Powers

Electoral Tribunals Commission on Appointments90

1. Sole judge of all contests relating tothe election, returns and qualification oftheir respective members.91

2. Rule-making power92

1. Shall act on all appointments submittedto it within 30 session days of Congressfrom their submission; and

2. Power to promulgate its own rulesof proceedings.

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!3

7. Powers of Congress

a. Legislative

(1) Legislative Inquiries and the Oversight Functions

The Senate or the House of Representatives or any of its respective committees mayconduct inquiries in aid of legislation in accordance with its duly published rules of procedure.

The rights of persons appearing in or affected by such inquiries shall be respected.93

The heads of departments may, upon their own initiative, with the consent of thePresident94, or upon the request of either House, as the rules of each House shall provide,appear before and be heard by such House on any matter pertaining to their departments.

Written questions shall be submitted to the President of the Senate or the Speaker of the Houseof Representatives at least three days before their scheduled appearance. Interpellations shall notbe limited to written questions, but may cover matters related thereto. When the security of the

State or the public interest so requires and the President so states in writing, the appearance shallbe conducted in executive session.95

(2) Bicameral Conference Committee

Bills or "suggested laws" are put forward by either Congress or Senate but it has to beapproved by both bodies before it can proceed to become law. There are some cases where the

version of the bill approved by Congress is different from the one in the Senate or vice-versa. The bill cannot be passed if it has multiple forms because then multiple laws will be created, andeach version needs to be approved by both Congress and Senate. To resolve this issue, abicameral conference committee is created which takes representatives from both Congress and

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

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!1

(3) Limitations on Legislative Power

(a) Limitations on Revenue, Appropriations and TariffMeasures

All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, billsof local application, and private bills shall originate exclusively in the House of Representatives,but the Senate may propose or concur with amendments.96

(b) Presidential Veto97 and Congressional Override

(1) Every bill passed by the Congress shall, before it becomes a law, be presented to thePresident. If he approves the same, he shall sign it; otherwise, he shall veto it and return thesame with his objections to the House where it originated, which shall enter the objections atlarge in its Journal and proceed to reconsider it. If, after such reconsideration, two-thirds of allthe Members of such House shall agree to pass the bill, it shall be sent, together with the

objections, to the other House by which it shall likewise be reconsidered, and if approved bytwo-thirds of all the Members of that House, it shall become a law. In all such cases, the votesof each House shall be determined by yeas or nays, and the names of the Members voting for oragainst shall be entered in its Journal. The President shall communicate his veto of any bill tothe House where it originated within thirty days after the date of receipt thereof; otherwise, itshall become a law as if he had signed it.

(2) The President shall have the power to veto any particular item or items in anappropriation, revenue, or tariff bill, but the veto shall not affect the item or items to which hedoes not object.98

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b. Non-Legislative

(1) Informing Function

The means by which Congress has collected, processed and acted on information vital to

its role as national legislature.

Congress informs itself in an effort to produce better legislation, and of reporting itsactivities to the public.

2) Power of impeachment

The President, the Vice-President, the Members of the Supreme Court, the Members ofthe Constitutional Commissions, and the Ombudsman may be removed from office onimpeachment for, and conviction of, culpable violation of the Constitution, treason, bribery,graft and corruption, other high crimes, or betrayal of public trust. All other public officers and

employees may be removed from office as provided by law, but not by impeachment.99

3) Other non-legislative power

a. Power to declare the existence of state of war.100

b. Power to act as Board of Canvassers in election of President.101

c. Power to call a special election for President and Vice!President.102

d. Power to judge President’s physical fitness to discharge the functions of the

Presidency.103

e. Power to revoke or extend suspension of the privilege of the writ of habeas corpusor declaration of martial law.104

f. Power to concur in Presidential amnesties.105

g. Power to concur in treaties or international agreements.106

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h. Power to confirm certain appointments/nominations made by the President.107

i. Power relative to natural resources.108

g. Power of internal organization.

a) Election of officersb) Promulgate internal rulesc) Disciplinary powers109

D. Executive Department110

1. Privileges, Inhibitions and Disqualifications

a. Presidential Immunity

Immunity from suit during his tenure111

b. Presidential Privilege!!5

Two kinds:

Presidential communications privilege Communications, documents or othermaterials that reflect presidentialdecision-making and deliberations and thatthe President believes should remain

confidential.

Deliberative process privilege Includes advisory opinions, recommendationsand deliberations comprising part of aprocess by which governmental decisionsand policies are formulated.

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2. Powers

a. Executive and Administrative Powers in General

Executive Powers Administrative Powers

The President shall have control of allexecutive departments, bureaus and offices.He shall ensure that laws are faithfullyexecuted.113

Until and unless a law is declaredunconstitutional, President has a duty toexecute it regardless of his doubts as to its

validity.114

(i) Create, abolish, group, coordinate,consolidate, merge or integratedepartments, bureaus, offices, agencies,instrumentalities and functions of thegovernment; and transfer functions,appropriations, equipment, property,records and personnel from one ministry,bureau, office, agency or instrumentality toanother;

(ii) Standardize salaries, materials andequipment;

(iii) Remove or otherwise discipline officersof the government as may be provided bylaw; and

(iv) Commute or remove administrativepenalties or disabilities upon officials oremployees in disciplinary cases.

b. Power of Appointment

(1) In General

The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other publicministers and consuls, or officers of the armed forces from the rank of colonel or naval captain,and other officers whose appointments are vested in him in this Constitution. He shall alsoappoint all other officers of the Government whose appointments are not otherwise providedfor by law, and those whom he may be authorized by law to appoint. The Congress may, by law,

vest the appointment of other officers lower in rank in the President alone, in the courts, or inthe heads of departments, agencies, commissions, or boards.

The President shall have the power to make appointments during the recess of theCongress, whether voluntary or compulsory, but such appointments shall be effective only untildisapproval by the Commission on Appointments or until the next adjournment of theCongress.115

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(2) Commission on Appointments Confirmation

a. Heads of executive departments;

b. Ambassadors and other public ministers and consuls;

c. Officers of the AFP from the rank of colonel or naval captain; andd. Other ministers whose appointments are vested in him by the Constitution116

(3) Midnight Appointments

Those made by the President or Acting President two months immediately before thenext presidential elections and up to the end of his term, except temporary appointments toexecutive positions when continued vacancies therein will prejudice public service or endangerpublic safety.117

(4) Power of Removal

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

Exception: those appointed by him where the Constitution prescribes certain methodsfor separation from public service.118

c. Power of Control119 and Supervision120

(1) Doctrine of Qualified Political Agency 121

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(2) Executive Departments and Offices

The President shall have control of all the executive departments, bureaus, and offices.He shall ensure that the laws be faithfully executed.123

(3) Local Government Units

The President of the Philippines shall exercise general supervision over localgovernments. Provinces with respect to component cities and municipalities, and cities andmunicipalities with respect to component barangays, shall ensure that the acts of theircomponent units are within the scope of their prescribed powers and functions.124

d. Military Powers125

1. To call out the Armed Force to prevent or suppress lawless violence, invasion orrebellion; and/or organize courts martial and create military commissions.126

2. Suspension of the Privilege of Writ of Habeas Corpus and Declaration of MartialLaw 127

e. Pardoning Power

(1) Nature and Limitations

Nature Limitations

Discretionary, may not be controlled by

the legislature or reversed by the court,unless there is a constitutional violation.

a. cannot be granted in cases of impeachment;

b. cannot be granted in violations of electionlaws without favorable recommendationsof the COMELEC;

c. can be granted only after convictions byfinal judgment;128

d. cannot be granted in cases of

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legislative contempt or civil contempt;

e. cannot absolve convict of civil liability;and

f. cannot restore public offices forfeited.

(2) Forms of Executive Clemency

Pardon129 Act of grace which exempts individual on whom it isbestowed from punishment which the law inflicts for a crimehe has committed.

Commutation Reduction or mitigation of the penalty.

Reprieve Postponement of sentence or stay of execution.

Parole Release from imprisonment, but without full restorationof liberty, as parolee is in the custody of the law althoughnot in confinement.

Amnesty Act of grace, concurred in by the Legislature, usuallyextended to groups of persons who committedpolitical offenses, which puts into oblivion the offense itself.

f. Diplomatic Power130

No treaty or international agreement shall be valid and effective unless concurred in byat least 2/3 of all members of Senate.131

In public international law, the conduct of foreign relations or diplomatic power is

vested in the Head of State or sovereign. In States which observe the doctrine of separation ofpowers, the President holds actual executive power including the conduct of foreign relations.

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g. Powers relative to appropriation measures

The President shall submit to the Congress, within thirty days from the opening of everyregular session as the basis of the general appropriations bill, a budget of expenditures andsources of financing, including receipts from existing and proposed revenue measures.132

h. Delegated powers

In times of war or other national emergency, the Congress may, by law, authorize thePresident, for a limited period and subject to such restrictions as it may prescribe, to exercisepowers necessary and proper to carry out a declared national policy. Unless sooner withdrawnby resolution of the Congress, such powers shall cease upon the next adjournment thereof.133

The Congress may, by law, authorize the President to fix within specified limits, andsubject to such limitations and restrictions as it may impose, tariff rates, import and exportquotas, tonnage and wharfage dues, and other duties or imposts within the framework of the

national development program of the Government.134

i. Veto powers

Every bill passed by the Congress shall, before it becomes a law, be presented to thePresident. If he approves the same he shall sign it; otherwise, he shall veto it and return the same

with his objections to the House where it originated, which shall enter the objections at large inits Journal and proceed to reconsider it. If, after such reconsideration, two-thirds of all theMembers of such House shall agree to pass the bill, it shall be sent, together with the objections,to the other House by which it shall likewise be reconsidered, and if approved by two-thirds ofall the Members of that House, it shall become a law. In all such cases, the votes of each House

shall be determined by yeas or nays, and the names of the Members voting for or against shall beentered in its Journal. The President shall communicate his veto of any bill to the House whereit originated within thirty days after the date of receipt thereof, otherwise, it shall become a lawas if he had signed it.

The President shall have the power to veto any particular item or items in anappropriation, revenue, or tariff bill, but the veto shall not affect the item or items to which hedoes not object.135

j. Residual Powers

Whatever is not judicial, whatever is not legislative, is residual power exercised by thePresident.136

k. Executive privilege

It is the power of the President to withhold certain types of information from the public,

the courts, and the Congress.

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C. Rules on Succession

The President-elect and the Vice President-elect shall assume office at the beginning oftheir terms.

If the President-elect fails to qualify, the Vice President-elect shall act as President untilthe President-elect shall have qualified.

If a President shall not have been chosen, the Vice President-elect shall act as Presidentuntil a President shall have been chosen and qualified.

If at the beginning of the term of the President, the President-elect shall have died orshall have become permanently disabled, the Vice President-elect shall become President.

Where no President and Vice-President shall have been chosen or shall have qualified, or where both shall have died or become permanently disabled, the President of the Senate or, in

case of his inability, the Speaker of the House of Representatives, shall act as President until aPresident or a Vice-President shall have been chosen and qualified.

The Congress shall, by law, provide for the manner in which one who is to act asPresident shall be selected until a President or a Vice-President shall have qualified, in case ofdeath, permanent disability, or inability of the officials mentioned in the next precedingparagraph.137

In case of death, permanent disability, removal from office, or resignation of thePresident, the Vice-President shall become the President to serve the unexpired term. In case ofdeath, permanent disability, removal from office, or resignation of both the President and Vice-

President, the President of the Senate or, in case of his inability, the Speaker of the House ofRepresentatives, shall then act as President until the President or Vice-President shall have beenelected and qualified.

The Congress shall, by law, provide who shall serve as President in case of death,permanent disability, or resignation of the Acting President. He shall serve until the President orthe Vice-President shall have been elected and qualified, and be subject to the same restrictionsof powers and disqualifications as the Acting President.138

Whenever there is a vacancy in the Office of the Vice-President during the term for which he was elected, the President shall nominate a Vice-President from among the Members

of the Senate and the House of Representatives who shall assume office upon confirmation by amajority vote of all the Members of both Houses of the Congress, voting separately.139

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E. Judicial Department140

1. Concepts

a. Judicial Power141

The duty of courts of justice to settle actual controversies involving rights which arelegally demandable and enforceable, and to determine whether or not there has been a graveabuse of discretion amounting to lack or excess of jurisdiction on the part of any branch orinstrumentality of government.142

b. Judicial Review 143

The power of the courts, ultimately of the SC, to interpret the Constitution and todeclare any legislative or executive act invalid because it is in conflict with the fundamental law.

This authority is derived by clear implication from the provision of Sec. 5(2), Art. VIII of the

Constitution. Through such power, the SC enforces and upholds the supremacy of theConstitution

(1) Operative Fact Doctrine

An unconstitutional law has an effect before being declared unconstitutional. Thedoctrine of operative fact as an exception to the general rule, only applies as a matter of equityand fair play.144 It nullifies the effects of an unconstitutional law by recognizing that the existenceof a statute prior to a determination of unconstitutionality is an operative fact and may haveconsequences which cannot always be ignored. The past cannot always be erased by a newjudicial declaration.145

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(2) Moot Questions146

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

conclusive on the parties.

(3) Political Question Doctrine

Those questions which, under the Constitution, are to be decided by the people in theirsovereign capacity; or in regard to which full discretionary authority has been delegated to thelegislature or executive branches of government.147

2. Safeguards of Judicial Independence

a.. SC is a Constitutional body; may not be abolished by law;

b. Members are only removable by impeachment;

c. SC may not be deprived of minimum and appellate jurisdiction; appellate jurisdictionmay not be increased without its advice or concurrence;

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

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

f. Members of judiciary enjoy security of tenure;

g. Members of judiciary may not be designated to any agency performing quasi-judicialor administrative functions;

h. Salaries of judges may not be reduced; judiciary enjoys fiscal autonomy;

i. SC alone may initiate Rules of Court;

j. SC alone may order temporary detail of judges; and

k. SC can appoint all officials and employees of the Judiciary

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3. Judicial Restraint

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

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

4. Appointments to the Judiciary

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

b. For lower courts, President shall issue the appointment 90 days from submission ofthe list.

5. Supreme Court

a. En Banc and Division Cases

En Banc Cases148 Division Cases149

1. All cases involving the constitutionalityof a treaty, international or executiveagreement, or law

2. All cases which under the Rules of Courtmay be required to be heard en banc

3. All cases involving theconstitutionality, application or operationof presidential decrees, proclamations,orders, instructions, ordinances andother regulations

Other cases or matters may be heard indivision, and decided or resolved withthe concurrence of a majority of themembers who actually took part inthe deliberations on the issues and

voted thereon, but in no case withoutthe concurrence of at least three (3) suchmembers.

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4. Cases heard by a division when therequired majority in the division is notobtained

5. Cases where the Supreme Court modifies

or reverses a doctrine or principle oflaw previously laid down either en banc or in division

6. Administrative cases involving thediscipline or dismissal of judges of lowercourts

7. Election contests for President or Vice-President.

b. Procedural Rule Making 150

Promulgate rules concerning the protection and enforcement of constitutional rights,pleading, practice, and procedure in all courts, the admission to the practice of law, theIntegrated Bar, and legal assistance to the underprivileged. Such rule shall provide a simplifiedand inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts ofthe same grade, and shall not diminish, increase, or modify substantive rights. Rules ofprocedure of special courts and quasi-judicial bodies shall remain effective unless disapproved bythe Supreme Court.151

c. Administrative Supervision over Lower Courts152

The Supreme Court shall have administrative supervision over all courts and thepersonnel thereof .153

d. Original and appellate jurisdiction

1. Exercise original jurisdiction over cases affecting ambassadors, other public ministersand consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeascorpus.

2. Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or theRules of Court may provide, final judgments and orders of lower courts in:

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a. All cases in which the constitutionality or validity of any treaty, international orexecutive agreement, law, presidential decree, proclamation, order, instruction,ordinance, or regulation is in question.

b. All cases involving the legality of any tax, impost, assessment, or toll, or anypenalty imposed in relation thereto.

c. All cases in which the jurisdiction of any lower court is in issue.

d. All criminal cases in which the penalty imposed is reclusion perpetua or higher;

e. All cases in which only an error or question of law is involved.

6. Judicial privilege

It is the privilege protecting any statement made in the course of and with reference to ajudicial proceeding by any judge, juror, party, witness, or advocate. However, this privilege is notabsolute, but applies only where: (1) the statements involved were made during the course ofjudicial proceedings; and (2) they were relevant to the subject of inquiry.154

A privilege protecting the attorneys and parties in a lawsuit against tort claims based oncertain acts done and statements made when related to the litigation. The privilege is most oftenapplied to defamation claims but may be extended to encompass other torts, such as invasion ofprivacy and disclosure of trade secrets. The facts of each case determine whether the privilegeapplies and whether it is qualified or absolute.155

F. Constitutional Commissions156

1. Constitutional safeguards to ensure independence of commissions

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

b. Each is expressly described as “independent;”

c. Each is conferred certain powers and functions which cannot be reduced by statute;

d. The Chairmen and members cannot be removed except by impeachment;

e. The Chairmen and members are given fairly a long term of office of 7 years;

f. The Chairmen and members may not be reappointed or appointed in an actingcapacity;157

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

h. The Commissions enjoy fiscal autonomy;

i. Each Commission may promulgate its own procedural rules, provided they do notdiminish, increase or modify substantive rights [though subject to disapproval by the SC;

j. The Chairmen and members are subject to certain disqualifications calculated tostrengthen their integrity;

k. The Commissions may appoint their own officials and employees in accordance withCivil Service Law.

2. Powers and Functions of each commission

Civil Service Commission:158

a. The Commission has the power to grant civilservice eligibility.159

b. It has the power to hear and decide administrative cases.16

c. The CSC shall administer the civil service.161

d. The CSC as the personnel agency of thegovernment shall establish a career service;

e. It shall adopt measures to promote morale,

efficiency, integrity, responsiveness, progressiveness,and courtesy in the civil service.

f. It shall strengthen the merit and rewards system;

g. It shall integrate all human resourcesdevelopment programs for all levels and ranks;

h. It shall institutionalize a management climateconducive to public accountability.

i. It shall submit to the President and the Congressan annual report on its personnel programs.162

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Commission on Elections:163 a. Enforce and administer law and regulationsrelative to conduct of elections, plebiscite,initiative, referendum or recall;164

b. Decide, except those involving right to vote, allquestions affecting elections, including the determinationof number and location of polling places, appointmentof election officials and inspectors and registration of

voters;165

c. Decide administrative questions.166

d. Deputize, with concurrence of President, lawenforcement agencies and instrumentalities forexclusive purpose of insuring free, orderly, honest,

peaceful and credible elections;167

e. Register, after sufficient publication, politicalparties, organizations or coalitions which must presenttheir platform or program of government; accreditcitizen’s arms;168

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6:

f. Power to Promulgate Rules169

g. Supervision or regulation of franchises170

h. Contempt powers171

i. Issue writs of certiorari , prohibition and mandamus inthe exercise of its appellate jurisdiction;

j. File upon verified complaint or motu proprio petitionsin court for inclusion or exclusion of voters; investigateand, where appropriate , prosecute cases of violationsof elections laws, including acts or omissionsconstituting election frauds, offenses and malpractices;172

k. Recommend to Congress effective measures to

minimize election spending, limitation of places andprevent and penalize all forms of election frauds,offenses, malpractice and nuisance candidates;173 and

j. Recommend to the President the removal of any officeror employee it has deputized, or the imposition of any

other disciplinary action, for violation or disregard or,disobedience to its directive, order or decision.174

m. Submit to President and Congress, comprehensivereports on conduct of each election, plebiscite,

initiative, referendum or recall.

n. In special cases, power to fix the election period. 175

Commission on Audit a. Examine, audit and settle all accounts pertaining torevenue and receipts of, and expenditures or uses of fundsand property owned or held in trust or pertainingto government, any of its subdivisions, agenciesor instrumentalities and GOCCs with original charters;

b. Conduct post-audit with respect to the following:

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1. Constitutional bodies, commissions, andoffices granted fiscal autonomy

2. Autonomous state colleges and universities

3. GOCCs and their subsidiaries incorporatedunder the Corporation Code

4. Non-governmental entities receiving subsidyor equity, directly or indirectly, from or throughthe government, which are required by law thegranting institution to submit such audit

c. If COA finds the internal control of auditedagencies inadequate, COA may adopt measures,

including temporary or special pre-audit, as necessary tocorrect deficiencies

d. Keep general accounts of government andpreserve vouchers and supporting papers pertainingthereto;

e. Exclusive authority to define scope of its auditand examination, establish techniques and methodsrequired therefor; and

f. Promulgate accounting and auditing rules andregulations, including those for preventionand disallowance.176

3. Prohibited offices and interests

Members of the Constitutional Commissions cannot:

a. Hold any other office or employment.

b. Engage in the practice of any profession.177

c. Engage in the active management or control of any business which in any way may beaffected by the functions of his office.

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60

d. Be financially interested directly or indirectly, in any contract with, or in any franchiseor privilege granted by the government, any of its subdivisions, agencies or instrumentalities,including government-owned or controlled corporations or their subsidiaries.178

4. Jurisdiction of each constitutional commission

Civil Service Commission 1. Jurisdiction on Personnel actions179

2. Original jurisdiction to hear anddecide a complaint for cheating.180

Commission on Elections 1. Original jurisdiction over contests relating toelections, returns and qualifications of all elective

a. Regionalb. Provincial

c. City officials

2. Appellate jurisdiction over contests involving

a. Elective municipal officials declared by trial courtsof general jurisdiction

b. Elective barangay officials declared by trial courts oflimited jurisdiction

c. COMELEC may issue extraordinary writs ofcertiorari , prohibition and mandamus

3. Exclusive jurisdiction to investigate and prosecute cases violations of election laws.181

Commission on Audit:182 Jurisdiction shall extend over but not limited to thefollowing cases and matters:

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1. Disallowance of expenditures or uses of governmentfunds and properties found to be illegal, irregular,unnecessary, excessive, extravagant or unconscionable;

2. Money claims due from or owing to any government

agency;

3. Determination of policies, promulgation of rulesand regulations, and prescription of standards governingthe performance by the Commission of its powersand functions;

4. Resolution of novel, controversial, complicated ordifficult questions of law relating to government accountingand auditing;

5. Charges made in the audit of revenues and receiptsresulting from under-appraisal, under-assessment or under-collection;

6. Audit of the books, records and accounts of publicutilities as provided by law;

7. Visitorial power over non-governmental organizationssubsidized by the government, (a) those required to paylevies or government share, (b) those funded bydonations through the government, (c) those for

which government has put up a counterpart fund, or(d) those entrusted with government funds or properties;

8. Authorization and enforcement of the settlement ofaccounts subsisting between agencies of the government;

9. Compromise or release in whole or in part, of any settledclaim or liability to any government agency;

10. Power to require the submission of papers relativeto government obligations;

11. Opening and revision of settled accounts;

12. Retention of money due to a person for satisfaction ofhis indebtedness to the government;

13. Seizure by the Auditor of the office of the localtreasurer found to have a shortage in cash;

14. Checking and audit of all property or supplies ofthe government agency;

15. Constructive distraint of property of any accountable



61

officer with shortage in his accounts upon a finding of a prima facie case of malversation of public funds orproperty against him;

16. In coordination with appropriate legal bodies,

collection of indebtedness found to be due a governmentagency in the settlement and adjustment of its accounts bythe Commission

5. Review

of final orders, resolutions and decisions

a. Rendered in the exercise of Quasi-Judicial Functions

b. Rendered in the exercise of Administrative Functions

Given the new definition of judicial power as including the power to determine whetheror not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction onthe part of any branch or instrumentality of the Government, the courts can review acts of alladministrative agencies, not only in the performance of their adjudicative function, but even inthe performance of their other functions183 through the special civil action of certiorari.

Civil Service Commission Administrative Circular 1-95184 which took effect on June 1, 1995, provides that final resolutions of the CSCShall be appealable by certiorari to the CA within 15 daysfrom receipt of a copy thereof. From the decision of the

CA, the party adversely affected thereby shall file apetition for review on certiorari under Rule 45 of theRules of Court.

Commission on Audit Judgments or final orders of the Commission may bebrought by an aggrieved party to the Supreme Courton certiorari under Rule 65. Only when COA acts withoutor excess in jurisdiction, or with grave abuse ofdiscretion amounting to lack or excess of jurisdiction,the SC may entertain a petition for certiorari under Rule 65.185

Commission on Elections Only decision en banc may be brought to the Supreme Courtby certiorari since Article IX-C says that motions

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6Y

for reconsideration of decisions shall be decided bythe Commission en banc .186

Bill of Rights!13

1. Fundamental Powers of the State

a. Concept and Application

Police Power The power of promoting public welfare by restrainingand regulating the use of liberty and property.

Power of Eminent Domain This is also known as the power of expropriation, it is

described as the highest and most exact idea of propertyremaining in the government that may be acquired for somepublic purpose through a method in the nature of acompulsory sale to the state.

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

Taxation is the method by which these contributions areexacted.

b. Requisites188 for Valid Exercise

Police Power189 1. Lawful Subject – the interests of the public in general,as distinguished from those of a particular class, requirethe exercise of the power;

2. Lawful Means – the means employed arereasonably necessary for the accomplishment of the

purpose, and not unduly oppressive on individuals;

Power of Imminent Domain 1. Necessity – when exercised by:

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Congress – political question;

Delegate – justiciable question

2. Private property – all private property capable ofownership may be expropriated, except money and choses

in action; may include services190

3. Taking - when:

a. owner actually deprived or dispossessed of hisproperty;

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

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

d. owner is deprived of jurisdiction, supervision andcontrol of his property.191

4. Public use - has been broadened to include not onlyuses directly available to the public but also those

which redound to their indirect benefit; that only a few would actually benefit from the expropriation of theproperty foes not necessarily diminish the essence andcharacter of public use.192

5. Just compensation - compensation is qualified by the word just to convey that equivalent must be real, substantial,full and fair; the value of the property must be determinedeither as of the date of the taking of the property or thefiling of the complaint, whichever came first.193

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6. Due process of law – the defendant must be givenopportunity to be heard.

Power of Taxation Inherent limitations:

a. Public purpose;

b. Non-delegability of power;

c. Territoriality or situs of taxation;

d. Exemption of government from taxation;

e. International comity.

Constitutional limitations:194

a. Due process of law;

b. Equal protection of law;

c. Uniformity, equitability, and progressivitytaxation;

d. Non-impairment of contracts;

e. Non-imprisonment for non-payment of poll tax;

f. Origin of appropriation, revenue, and tariff bills;

g. Non-infringement of religious freedom;

h. Delegation of legislative authority to thePresident to fix tariff rates, import andexport quotas, tonnage and wharfage dues;

i. Tax exemption of properties actually, directlyand exclusively used for religious, charitableand educational purposes;

j. Majority vote of all members of Congressrequired in case of legislative grant oftax exemptions;

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k. Non-impairment of the Supreme Court’sjurisdiction in tax cases;

l. Tax exemption of revenues and assets of,Including grants, endowments, donations,contributions to educational institutions.

c. Similarities and Differences

Similarities

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

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

3. Methods by which State interferes with private property

4. Presuppose equivalent compensation

5. Exercised/primarily/by/the/Legislature

Differences

Basis Police Power Eminent Domain Taxation

Rights regulated Liberty &property rights Property rights only Property rights only

Exercised by Government Government; PrivateEntities

Government

Property takenand purpose

Usually noxious;noxious purpose

Wholesome;public purpose

Wholesome: publicPurpose

Compensation Intangible, altruisticfeeling of contributing tothe public good

Full and fairEquivalent ofthe property taken

Protection given orpublic improvements



:6

d. Delegation

Police power195 Congress may validly delegate this power tothe President, to administrative bodies

and to lawmaking bodies of local governmentunits. Local government units exercisethe power under the general welfare clause196 and under Secs. 391, 447, 458 and 468,R.A. 7160.197

Power of Eminent Domain Congress may validly delegate this power tothe President, administrative bodies,local government units, and evenprivate enterprises performing public services.

Power of Taxation Congress may validly delegate this power tolocal government bodies198 and to alimited extent, the President whengranted delegated tariff powers199

2. Private Acts and the Bill of Rights

In the absence of governmental interference, the liberties guaranteed by the

Constitution cannot be invoked against the State. The Bill of Rights guarantee governsthe relationship between the individual and the State. Its concern not the relationbetween private individuals. What it does is to declare some forbidden zones the privatesphere inaccessible to any power holder.200

In the absence of governmental interference, the liberties guaranteed by theConstitution cannot be invoked/by/private individuals. Put differently, the Bill of Rightsis not meant to be invoked against acts of private individuals. 201

However, the Supreme Court,202 where the husband invoked his right toprivacy of communication and correspondence against a private individual, his wife, who had

forcibly taken from his cabinet and presented as evidence against him documentsand private correspondence, held these papers inadmissible in evidence, upholding thehusband’s right to privacy .

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3. Due Process203

No person shall be deprived of life, liberty or property without due process of law.204

a. Relativity of Due Process

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

b. Procedural and Substantive Due Process

Procedural Due Process Substantive Due Process

Due process was understood to relate chiefly

to the mode of procedure whichgovernment agencies must follow, it wasunderstood as a guarantee of proceduralfairness. Its essence is a “law which hearsbefore it condemns”. Thus, it serves asrestriction on actions of judicial andquasi-judicial agencies of government.

The due process clause must be

interpreted both as a procedural andsubstantive guarantee. It must be aguarantee against the exercise of arbitrarypower even when the power is exercisedaccording to proper forms and procedure.

Thus, it serves as a restriction ongovernment’s law and rule-making power.

c. Constitutional and Statutory Due Process

Constitutional Due Process Statutory Due Process

Protects the individual from thegovernment and assures him of his rightsin criminal, civil or administrativeProceedings.

While found in the Labor Code andImplementing Rules protects employeesfrom being unjustly terminated withoutjust cause after notice and hearing.205

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d. Hierarchy of Rights

The primacy of human rights over property rights is recognized.

Because these freedoms are “delicate and vulnerable, as well as supremely precious in

our society” and the “threat of sanctions may deter their exercise almost as potently as the actualapplication of sanctions,” they “need breathing space to survive,” permitting governmentregulation only “with narrow specificity.”

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

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

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

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

e. Judicial Standards of Review 206

Deferential review Intermediate review Strict scrutiny

Laws are upheld if theyrationally further a legitimategovernmental interest,

without courts seriously inquiriinto thesubstantiality of such interestand examining the alternativemeans by which the objectivescould be achieved

The substantiality of thegovernmental interest isseriously looked into andthe availability of lessrestrictive alternatives areconsidered.

The focus is on thepresence of compelling,rather than substantialgovernmental interest andon the absence of lessrestrictive means forachieving that interest.207

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f. Void-for-Vagueness Doctrine

It holds that a law is vague when it lacks comprehensive standards that men ofcommon intelligence must necessarily guess at its common meaning and differ as to itsapplication. In such instance, the statute is repugnant to the Constitution because:

1. It violates due process for failure to accord persons, especially the partiestargeted by it, fair notice of what conduct to avoid

2. It leaves law enforcers an unbridled discretion in carrying out its provisions.208

4. Equal Protection

Nor shall any person be denied the equal protection of the laws.209

a. Concept

The Equal Protection Clause is a specific constitutional guarantee of the Equality of thePerson. The equality it guarantees is “legal quality or the equality of all persons before the law.”

This clause does not only prohibit the State from passing discriminatory laws but it alsocommands the State to pass laws which positively promote equality or reduce existinginequalities.

“All person or things similarly situated should be treated alike, both as to rightsconferred and responsibilities imposed”. The equal protection clause is a specific constitutionalguarantee of the Equality of the Person. The equality guarantees the “legal equality or as it isusually put, the equality of all persons before the law. Under it, each individual is dealt with as anequal person in the law, which does not treat the person differently because of who he is or

what he is or what he possess.210

b. Requisites for Valid Classification

1. Substantial distinction

2. Germane to the purpose of the law-the distinction which must make for realdifferences should have reasonable relation to the purpose of the law.

3. Not limited to existing conditions only

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

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c. Standards of judicial review

1) Rational Basis Test

Where the classification needs only to be related to a legitimate state interest.

Rational basis is the most deferential of the standards of review that courts use in due-process and equal-protection analysis.211

2) Strict Scrutiny Test

A legislative classification which impermissibly interferes with the exercise of afundamental right or operates to the peculiar disadvantage of a suspect class is presumedunconstitutional, and that the burden is upon the government to prove that the classification isnecessary to achieve a compelling State interest and that it is the less restrictive means to protectsuch interest.

Under strict scrutiny, the state must establish that it has a compelling interest thatjustifies and necessitates the law in question.212

The focus is on the presence of compelling, rather than substantial governmentalinterest and on the absence of less restrictive means for achieving that interest.213

3) Intermediate Scrutiny Test

Where the government must show that the challenged classification serves an importantState interest and that the classification is substantially related to that interest.

Under the standard, if a statute contains a quasi-suspect classification,214 the classificationmust be substantially related to the achievement of an important governmental objective.215

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5. Searches and Seizures216

a. Concept

Not just a circumscription of the power of the state over a person’s home and

possessions. More important, it protects the privacy and sanctity of the person himself. It is aguarantee of the right of the people to be secure in their “persons…against unreasonablesearches and seizures”. It is therefore also a guarantee against unlawful arrests and other formsof restraint on the physical liberty of the person. The constitutional guarantee is not aprohibition of all searches and seizures but only of “unreasonable” searches and seizures.

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

b. Warrant Requirement

(1) Requisites

1. Probable Cause217

2. Determination of probable cause to be determined personally by the judge afterexamination under oath or affirmation of the complainant and the witnesses he may produce218

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3. Must refer to one Specific offense

4. Particularity of Description219

c. Warrantless Searches

Eight Instances of Valid Warrantless Searches and Seizures:

1. When the right is voluntarily waived554

2. When there is valid reason to “stop-and-frisk”221

3. Where the search and seizure is an incident to a lawful arrest222

4. Search of Vessels and Aircrafts223

5. Search of Moving Vehicles/Automobiles at borders or constructive borders224

6. Where prohibited articles are in plain view 225

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

8. Search and Seizure under exigent and emergency circumstances226

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

10. Visual search at checkpoints

d. Warrantless Arrests

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

1. When, in his presence, the person to be arrested has committed, is actuallycommitting or is attempting to commit an offense227

2. When an offense has just been committed and he has probable cause to believebased on personal knowledge of facts or circumstances that the person to be arrestedcommitted it228

3. When the person to be arrested is a prisoner who has escaped from a penalestablishment or place where he is serving final judgment or temporarily confined while his caseis pending or has escaped while being transferred from one confinement to another. 229

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e. Administrative Arrests230

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

There is an administrative arrest as an incident to deportation proceedings.

f. Drug, Alcohol and Blood Tests

A law requiring mandatory drug testing for students of secondary and tertiaryschools is constitutional. It is within the prerogative of educational institutions to require,as a condition for admission, compliance with reasonable school rules and regulationsand policies. To be sure, the right to enroll is not absolute; it is subject to fair,reasonable, and equitable requirements.

A law requiring mandatory drug testing for officer and employees of public and

private offices is constitutional.

As the warrantless clause231 is couched and as has been held, “reasonableness” isthe/touchstone of the validity of a government search or/intrusion. And whether a searchat issue hews to the reasonableness standard is judged by the balancing of the governmentmandated intrusion on the individual’s privacy interest against the promotion of somecompelling state interest. In the criminal context, reasonableness requires showing probablecause to be personally determined by a judge. Given that the drug testing policy for employeesand students for that matter under R.A. 9165 is in the nature of administrative searchneeding what was referred to in Veronia case as “swift and informal procedures,” theprobable cause standard is not required or even practicable.232

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6. Privacy of Communications and Correspondence

a. Private and Public Communications

Private Communications Public Communications

An exchange of information betweentwo individuals in a confidential relationship.

It usually means communication thatisn't private to a certain group.233

b. Intrusion, when allowed

1. Upon lawful order of the court

2. When public safety or order requires otherwise as prescribed by law 234

c. Writ of Habeas Data

It is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of aprivate individual or entity engaged in the gathering, collecting or storing of data or informationregarding the person, family, home and correspondence of the aggrieved party.

7. Freedom of Expression

a. Concept and Scope

(1) Prior Restraint235

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freedom of expression also means a limitation on the power of the state to impose subsequentpunishment.

(2) Subsequent Punishment

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

1. Libel236

2. Obscenity 237

3. Criticism of Official Conduct238

b. Content-Based and Content-Neutral Regulations

Content!based restraint Content!neutral regulation

They are given the strictest scrutinyin light of their inherent andinvasive impact.

Substantial governmental interest is required for their validity, and they are not subjectto the strictest form of judicial scrutiny rather onlyan intermediate approach! somewherebetween the rationality that is required of a law andthe compelling interest standard applied to content!ba

d restrictions.

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(1) Tests(2) Applications

Clear and Present Danger Test Whether the words are used in such circumstance

and of such a nature as to create a clear and presentdanger that they will bring about the substantiveevils that the state has the right to prevent.It is a question of proximity and degree.239

Dangerous Tendency Test If the words uttered create a dangerous tendency ofan evil which the State has the right to prevent. 240

Balancing of Interests test When particular conduct is regulated in the interests

of public order, and the regulations result in anindirect, conditional, partial abridgment of speech,the duty of the courts is to determine which of thetwo conflicting interests demands the greaterprotection under the particularcircumstances presented.241

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O’Brien Test A governmental regulation is sufficiently justifiedif:

a. It is within the constitutional power of the

Government

b. It furthers an important or substantialgovernmental interest

c. The governmental interest is unrelated to thesuppression of free expression

d. If the incidental restriction on alleged freedomis no greater than is essential to that interest.

Grave!but!Improbable Danger test This test was meant to supplant the clear andpresent danger test.

Direct Incitement test It criticizes the clear and present danger test forbeing too dependent on the specific circumstances ofeach case.

c. Facial Challenges and the Overbreadth Doctrine

Facial Challenge A manner of challenging a statute in court, in whichthe plaintiff alleges that the statute is always, andunder all circumstances, unconstitutional, andtherefore, void.

Overbreadth Doctrine Permits a party to challenge a statute even though,as applied to him, it is not unconstitutional, but it

might be if applied to others not before the Court whose activities are constitutionally protected.

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d. Tests242

e. State Regulation of Different Types of Mass Media

The ownership and management of mass media shall be limited to citizens of the

Philippines, or to corporations, cooperatives or associations, wholly-owned and managed bysuch citizens.

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

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

Only Filipino citizens or corporations or associations at least seventy per centum (70%)

of the capital of which is owned by such citizens shall be allowed to engage in the advertisingindustry.

The participation of foreign investors in the governing body of entities in such industryshall be limited to their proportionate share in the capital thereof, and all the executive andmanaging officers of such entities must be citizens of the Philippines.243

f. Commercial Speech

Communication244 that involves only the commercial interests of the speaker and theaudience.245

Communication which no more than proposes a commercial transaction.246

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g. Private v . Government Speech

Government Speech Private Speech

Where the/government may advance or

restrict its own speech in a mannerthat would clearly be forbidden were itregulating the speech of private citizen.247

The right of a person to freely speak

one’s mind is a highly valued freedomin a republican and democratic society.248

h. Heckler’s Veto249

Occurs when an acting party's right to freedom of speech is curtailed or restricted by thegovernment in order to prevent a reacting party's behavior.250 The common example is that ofdemonstrators251causing a speech252 to be terminated in order to preserve the peace.

8. Freedom of Religion

a. Non-Establishment Clause

Prohibits the establishment of any religion.

1) Concept and basis

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

religion.

This reinforces Sec. 6, Art. II, on the separation of Church and State.

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

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While there is no unanimity in non-establishment as a political principle, there issubstantial agreement on the values non-establishment seeks to protect. There are two:

voluntarism and insulation of the political process from interfaith dissension.253

2) Acts permitted and not permitted by the clause

Acts permitted Acts not permitted

a. Exemption from taxation of propertiesactually, directly and exclusively used forreligious purposes.254

b. Citizenship requirement of ownershipof educational institutions, except thoseestablished by religious groups and missionboards255

c. Optional religious instruction in publicelementary and high schools: at the optionexpressed in writing by the parents orguardians, religious instruction taught

within regular class hours by instructorsdesignated or approved by the religiousauthorities of the religion to which thechildren or wards belong without additionalcost to the government256

a. A religious sect or denomination cannotbe registered as a political party.258

b. No sectoral representatives fromthe religious sector.259

c. Prohibition against the use of publicmoney or property for the benefit of

any religion, or of any priest, ministeror ecclesiastic.260

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=Y

iv. Appropriation allowed where theminister or ecclesiastic is employed inthe armed forces, in a penal institution, orin a government-owned orphanage

or leprosarium.257

3) Test

Lemon test It is a test to determine whether an actof the government violates thenon!establishment clause. To pass thetest, a government act or policymust:

1. Have a secular purpose;

2. Not promote or favor anyset of religious beliefs or religion generally;and

3. Not get the government tooclosely involved261 with religion.

b. Free Exercise Clause

Guarantees the free exercise of religion.

Embraces two (2) concepts:

1. Freedom to Believe – absolute262

2. Freedom to act according to one’s beliefs – subject to state regulation

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04

c. Test

Clear and Present Danger Test263

Compelling State Interest Test It is the test used to determine if the interestsof the State are compelling enough to justifyinfringement of religious freedom.

The state has the burden to justify any possiblesanction. This involves three (3) steps:

i. The courts should look into the sincerityof the religious belief without inquiring into thetruth of the belief.

ii. The state has to establish that its purposesare legitimate and compelling

iii. The state used the least intrusive meanspossible.264

It refers to a method of determining theconstitutional validity of a law. Under this test, thegovernment’s interest is balanced against theindividual’s constitutional right to be free of law.

However, a law will be upheld only if thegovernment’s interest is strong enough.265

Conscientious Objector Test Test to determine if objection is based on moral orreligious grounds.266

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0!

9. Liberty of Abode and Freedom of Movement 267

“The liberty of Abode and of changing the same within the limits prescribed by law shallnot be impaired.268

a. Limitations

Liberty of abode Right to travel

Upon lawful order of the court and withinthe limits prescribed by law

1. In the interest of national security,public safety, public health, as may beprovided by law;

2. Any person on bail.269

b. Right to travel

It may be impaired even without the court order, but the appropriate executive officer isnot assumed with arbitrary discretion to impose limitations. He can impose limits only on thebasis of “national security, public safety or public health” and “as may be provided by law.”

Impairment of this liberty, moreover, must be subject to judicial review as evenmeasures taken by the executive are subject to judicial review. The constitution itself sets downthe measure of allowable impairment: necessity “in the interest of national security, public safetyor public health” as well as explicit provisions of statutory law or the Rules of Court.270

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05

1) Watch-list and hold departure orders

Watch list is a list of persons or things to watch for possible action in the future.

Hold departure order is applicable to those with criminal charges and facing

prosecution, or when the interest of national security, public health or safety is at stake, or toregulate immigration.271

c. Return to One’s County

Everyone has the right to leave any country, including his own and to return to hiscountry.272

No one shall be arbitrarily deprived of the right to enter his own country.273

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!$ 7JC&';+ +,- C((@;-.* &88-;/-(+&L- )G 'C+&)'CF&+D* &' (8&B&'CF (C;-; GCFF&'J N&+,&' +,- S@8&;.&(+&)' )G

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)8 /@KF&( ,-CF+,$

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06

10. Right to Information274

a. Limitations

i. National Security matters and intelligence information275

ii. Trade or Industrial Secrets and banking transactions276

iii. Criminal matters277

iv. Other Confidential information.278

b. Publication of Laws and Regulations

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

c. Access to Court Records

The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions,or decisions, as well as to government research data used as basis for policy development, shallbe afforded the citizen, subject to such limitations as may be provided by law.279

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BC++-8; C8)@;- +,- &'+-8-;+ )G C' )8.&'C8D (&+&X-'

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0:

d. Right to Information Relative to

(1) Government Contract Negotiations

The right to information contemplates inclusion of negotiations leading to the

consummation of the transaction. Otherwise, the people can never exercise the right if nocontract is consummated, or if one is consummated, it may be too late for the public to exposeits defects. However, the right only affords access to records, documents and papers, whichmeans the opportunity to inspect and copy them at his expense. The exercise is also subject toreasonable regulations to protect the integrity of public records and to minimize disruption ofgovernment operations.280

(2) Diplomatic Negotiations

Recognized as privileged in this jurisdiction. It bears emphasis, however, that suchprivilege is only presumptive. For as Senate v. Ermita holds, recognizing a type of information as

privileged does not mean that it will be considered privileged in all instances. Only after aconsideration of the context in which the claim is made may it be determined if there is a publicinterest that calls for the disclosure of the desired information, strong enough to overcome itstraditionally privileged status.281

11. Right of Association

The right to form associations is a general right of liberty; it is an aspect of freedom ofcontract.

It shall not be impaired without due process of law.282

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0=

12. Eminent Domain283

a. Concept

This is also known as the power of expropriation, it is described as the highest and most

exact idea of property remaining in the government that may be acquired for some publicpurpose through a method in the nature of a compulsory sale to the state.

b. Expansive Concept of "Public Use"

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

This cover uses which, while not directly available to the public, redound to their

indirect advantage or benefit.

c. Just Compensation

(1) Determination

The full and fair equivalent of the property taken; it is the fair market value of theproperty, to which must be added the consequential damages, if any, minus the consequentialbenefits, if any, but in no case shall the consequential benefits exceed the consequentialdamages.284

(2) Effect of Delay

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

d. Abandonment of Intended Use and Right of Repurchase

The property owner’s right to repurchase the property depends upon the character ofthe title acquired by the expropriator, i.e., if land is expropriated for a particular purpose withthe condition that when that purpose is ended or abandoned, the property shall revert to the

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00

former owner, then the former owner can re-acquire the property. In this case, the terms of thejudgment in the expropriation case were very clear and unequivocal, granting title to the lot infee simple to the Republic. No condition on the right to repurchase was imposed.285

e. Miscellaneous Application

Private property shall not be taken for public use without just compensation.286

The State may, in the interest of national welfare or defense, establish and operate vitalindustries and, upon payment of just compensation, transfer to public ownership utilities andother private enterprises to be operated by the Government.287

The State shall, by law, undertake an agrarian reform program founded on the right offarmers and regular farm workers, who are landless, to own directly or collectively the lands theytill or, in the case of other farm workers, to receive a just share of the fruits thereof. To this end,the State shall encourage and undertake the just distribution of all agricultural lands, subject to

such priorities and retention limits as the Congress may prescribe, taking into accountecological, developmental, or equity considerations, and subject to the payment of justcompensation. In determining retention limits, the State shall respect the right of smalllandowners. The State shall further provide incentives for voluntary land- sharing.288

The State shall, by law, and for the common good, undertake, in cooperation with theprivate sector, a continuing program of urban land reform and housing which will makeavailable at affordable cost decent housing and basic services to underprivileged and homelesscitizens in urban centers and resettlement areas. It shall also promote adequate employmentopportunities to such citizens. In the implementation of such program the State shall respect theright of small property owners.289

13. Contract Clause

No franchise, certificate, or any other form of authorization for the operation of a publicutility shall be granted except to citizens of the Philippines or to corporations or associationsorganized under the laws of the Philippines, at least sixty per centum of whose capital is ownedby such citizens; nor shall such franchise, certificate, or authorization be exclusive in characteror for a longer period than fifty years. Neither shall any such franchise or right be grantedexcept under the condition that it shall be subject to amendment, alteration, or repeal by theCongress when the common good so requires. The State shall encourage equity participation inpublic utilities by the general public. The participation of foreign investors in the governing

body of any public utility enterprise shall be limited to their proportionate share in its capital,and all the executive and managing officers of such corporation or association must be citizensof the Philippines.290

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03

a. Contemporary Application of the Contract Clause

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

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

14. Legal Assistance and Free Access to Courts

Free access to the courts and quasi-judicial bodies and adequate legal assistance shall notbe denied to any person by reason of poverty.291

15. Rights of Suspects292

i. Right to Remain Silent293

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

iii. Right to be provided with the services of counsel if he cannot afford the services ofone294

iv. Right to be informed of such rights.295

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01

a. Availability

Available only “under custodial investigation” for the commission of an offense.”296

b. Requisites

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

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

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

4. He should be warned that not only has he the right to consult with a lawyer but also

that if he is indigent, a lawyer will be appointed to represent him.

5. Even if the person consents to answer questions without the assistance of counsel,the moment he asks for a lawyer at any point in the investigation, the interrogation must ceaseuntil an attorney is present.

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

c. Waiver

These rights cannot be waived except in writing and in the presence of his counsel.297

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16. Rights of the Accused 298

a. Criminal Due Process

a. Accused to be heard in court of competent jurisdiction;

b. Accused proceeded against under orderly processes of law;

c. Accused given notice and opportunity to be heard;

d. Judgment rendered was within the authority of constitutional law.

b. Bail299

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

a. Before or after conviction by the MTC, and

b. Before conviction of the RTC of an offense not punishable by death, reclusion perpetua or life imprisonment.300

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

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

If the court imposed a penalty of imprisonment exceeding 6 years but not more than 20years, the accused shall be denied bail, or his bail previously granted shall be cancelled, uponshowing by the prosecution, with notice to the accused, under certain circumstances.301

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34

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

a. charged with a capital offense, or an offense punishable by reclusion perpetua or lifeimprisonment; and

b. evidence of guilt is strong.302

c. Presumption of Innocence

In all criminal prosecutions, the accused shall be presumed innocent until the contrary isproved303 xxx

Every circumstance favoring the innocence of the accused must be taken into account.304

d. Right to be Heard

Three (3) specific rights:

1. The right to present evidence305 and to be present at the trial,306

2. The right to be assisted by counsel,

3. The right to compulsory process to compel the attendance of witnesses in his behalf.

e. Assistance of Counsel307

The accused is amply accorded legal assistance extended by a counsel who commitshimself to the cause of the defense and acts accordingly; an efficient and truly decisive legalassistance, and not simply a perfunctory representation.308

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3!

f. Right to be Informed

1. To furnish the accused with such a description of the charge against him as willenable him to make his defense

2. To avail himself of his conviction or acquittal for protection against furtherprosecution for the same cause

3. To inform the court of the facts alleged so that it may decide whether theyare sufficient in law to support a conviction, if one should be had.309

Description, not designation of the offense, is controlling. The real nature of thecrime charged is determined from the recital of factsin the information. It is neitherdetermined based on the caption or preamble thereof norfrom the specification of theprovision of the law allegedly violated.

g. Right to Speedy, Impartial and Public Trial

Speedy Impartial Public

Free from vexatious,capricious and oppressivedelays;

Accused entitled to coldneutrality of an impartialjudge.

To prevent possible abuses which may be committedagainst the accused.

h. Right of Confrontation310

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

The right has a twofold purpose:

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

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

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35

i. Compulsory Process

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

j. Trials in Absentia 311

Three (3) conditions must concur:

1. Accused has been arraigned312

2. Notice of the trial was duly served to him and properly returned

3. His failure to appear is unjustified

17. Writ of Habeas Corpus 313

A writ issued by court directed to person detaining another, commanding him toproduce the body of the prisoner at designated time and place, with the day and cause of hiscapture and detention, to do, to submit to, and to receive whatever court or judge awarding writshall consider in his behalf.314

18. Writ of Amparo,315

habeas data, and kalikasan

Writ of Amparo

A remedy available to any person whose right to life, liberty and security is violated orthreatened with violation by an unlawful act or omission of a public official or employee, or of a

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36

private individual or entity. The writ shall cover extralegal killings and enforced disappearance orthreats thereof.

Writ of Habeas Data

A remedy available to any person whose right to privacy in life, liberty or security isviolated or threatened by an unlawful act or omission of a public official or employee, or of a

private individual or entity engaged in the gathering, collecting or storing of data orinformation regarding the person, family, home and correspondence of the aggrieved party.

Writ of Kalikasan

It is available to a natural or juridical person, entity authorized by law, people’s

organization, non-governmental organization, or any public interest group accredited by or

registered with any government agency, on behalf of persons whose constitutional right to a

balanced and healthful ecology is violated, or threatened with violation by an unlawful act oromission of a public official or employee, or private individual or entity, involving

environmental damage of such magnitude as to prejudice the life, health or property of

inhabitants in two or more cities or provinces.

18. Self-Incrimination Clause

No person shall be compelled to be a witness against himself.316

a. Scope and Coverage

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

(1) Foreign Laws

b. Application

Applies only to testimonial compulsion317 and production of documents, papers andchattels in court except when books of account are to be examined in exercise of power oftaxation and police power.

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c. Immunity Statutes

Transactional Immunity 318 Use and Fruit Immunity

The testimony of any person or whose

possession of documents or other evidencenecessary or convenient to determine thetruth in any investigation conducted isimmune from criminal prosecution for anoffense to which such compelled testimonyrelates.

Prohibits the use of a witness’ compelled

testimony and its fruits in any manner inconnection with the criminal prosecution ofthe witness.319

19. Involuntary Servitude and Political Prisoners

Involuntary Servitude General Rule: No involuntary Servitudeshall exist.

Except:

a. as punishment for a crime whereof onehas been duly convicted320

b. service in defense of the state321

c. naval enlistment322

d. posse comitatus 323

e. return to work order in industriesaffected with public interest324 and

f. patria potestas 325

Political Prisoners No person shall be detained by reason ofhis political beliefs or aspirations.326

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20. Excessive Fines and Cruel and Inhuman Punishments327

Prohibited punishment - mere severity does not constitute cruel or unusual punishment. To violate constitutional guarantee, penalty must be flagrant and plainly oppressive,

disproportionate to nature of offense as to shock senses of community.

21. Non-Imprisonment for Debts

No person shall be imprisoned for debt or non-payment of poll tax.328

22. Double Jeopardy329

a. Requisites330

a. valid complaint or information;

b. filed before competent court;

c. to which defendant has pleaded; and

d. defendant was previously acquitted or convicted or the case dismissed or otherwiseterminated without his express consent331

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30

b. Motions for Reconsideration and Appeals

Motions for Reconsideration Appeals

1. New evidence has been discovered

which materially affects the decisionrendered.

2. The decision is not supported by theevidence on record, or errors of law orirregularities have been committed which

are prejudicial to the interest of therespondent.

The rule on double jeopardy prohibits the

state from appealing or filing a petition forreview of a judgment of acquittal that wasbased on the merits of the case. Certiorari

will issue only to correct errors ofjurisdiction, not errors of procedure ormistakes in the findings or conclusions ofthe lower court.332

The prosecution can appeal if the accused waived or is estopped from invoking his right.333

Appeal from the order of dismissal by thelower court is not foreclosed by the ruleon double jeopardy where the order ofdismissal was issued before arraignment.334

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

accused by the trial court.

c. Dismissal with Consent of Accused

Does not put accused in first jeopardy, except:

a. when ground for dismissal is insufficiency of evidence; or

b. when the proceedings have been unreasonably prolonged as to violate the right ofthe accused to a speedy trial.

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33

23. Ex Post Facto Laws and Bills of Attainder

Ex post facto law 335 Bills of Attainder

a. law making an act criminal which was not

before its passage;

b. law aggravating penalty for crimecommitted before passage;

c. law inflicting greater or more severepenalty;

d. law altering legal rules of evidence andreceive less or different testimony than lawrequired at time of commission, in order to

convict accused;

e. law assuming to regulate civil rights andremedies only, in effect imposes a penalty;

f. of deprivation of right for something which when done was lawful;

g. law depriving accused of some lawfulprotection to which he had been entitled,such a protection of a former conviction

or acquittal, or a proclamation of amnesty.

Legislative act that inflicts punishment

without trial; legislative declaration of guilt.

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31

H. Citizenship

1. Who are Filipino citizens

a. Those who are citizens under the Treaty of Paris;

b. Those declared citizens by judicial declaration applying the jus soli principle; 336

c. Those who are naturalized in accordance with law;337

d. Those who are citizens under the 1935 Constitution;

e. Those who are citizens under the 1973 Constitution.

2. Modes of acquiring citizenship

a. By birth

i. jus sanguinis ; andj. ii. jus soli ;

b. By naturalization;

c. By marriage

3. Naturalization and Denaturalization

Naturalization338

Qualifications Disqualifications

a. not less than 18 years of age on date ofhearing of petition;339

b. resided in the Philippines for not less than10 years; may be reduced to 5 years, if:

a. Opposed to organized government oraffiliated with any association or group ofpersons who uphold and teach doctrinesopposing all organized governments;

b. Defending or teaching necessity or

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1. honorably held office in the Philippines;

2. established new industry or introduceuseful invention;

3. married to a Filipino woman;

4. engaged as teacher in Philippinepublic or private school not established forexclusive instruction to particular nationalityor race, or in any of branches of educationor industry for a period of not less than 2years; and

5. born in the Philippines;

6. character:

a. good moral character;

b. believes in the Constitution;

c. conducted himself inirreproachable conduct during his stay inthe Philippines;

c. Own real estate in the Philippines not

less than P5,000 in value; or have somelucrative trade, profession or lawfuloccupation that can support himself andhis family;

d. Speak and write English or Filipino andany principal Philippine dialects;340 and

e. Enrolled minor children in any publicprivate school recognized by government

where Philippine history, government and

civics are taught as part of curriculum, duringthe entire period of residence prior to hearingof petition.

propriety of violence, personal assault orassassination for the success or

predominance of their ideas;

c. Polygamists or believers in polygamy;

d. Suffering from mental alienation orincurable contagious disease;

e. Convicted of crime involving moralturpitude;

f. Who, during residence in thePhilippines, have not mingled socially withFilipinos, or not evinced sincere desire tolearn and embrace customs, traditions and

ideals of Filipinos;

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

h. Citizens or subjects of foreign country whose laws do not grant Filipinos right

to become naturalized citizens orsubjects thereof.

Effects of Naturalization:



14

On the wife Vests citizenship on wife who might herselfbe lawfully naturalized; She need not proveher qualifications but only that she isnot disqualified.341

On the minor children1. Born in the Philippines–automatically becomes a citizen;

2. Born abroad

If born before the naturalization of theFather:

(a) residing in RP at the time of

naturalization – automatically becomescitizen;

(b) not residing in RP at the time ofnaturalization – considered citizen only

during minority, unless begins to residepermanently in the Philippines;

3. If born outside the Philippines afterparents’ naturalization considered Filipino,provided registered as such before any

Philippine consulate within 1 year afterattaining majority age and takes oathof allegiance.

Denaturalization

Grounds Effects

1. Naturalization certificate obtained

fraudulently or illegally;

2. If, within 5 years, he returns to his nativecountry or to some foreign country andestablishes residence therein;

3. Naturalization obtained through invaliddeclaration of intention;

1. If ground affects intrinsic validity of

proceedings, denaturalization shall divest wife and children of their derivativenaturalization; and

2. If the ground is personal, the wife andchildren shall retain citizenship.

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4. Minor children failed to graduate throughthe fault of the parents either by neglectingsupport or by transferring them to anotherschool; and

5. Allowing himself to be used as dummy.

4. Dual citizenship and dual allegiance

Dual citizenship Dual allegiance

Arises when, as a result ofconcurrent application of the different laws

of two or more states, a person issimultaneously considered a national bysaid states.

Refers to the situation where a personsimultaneously owes, by some positive act,

loyalty to two or more states.

Involuntary Result of an individual’s volition

5. Loss and re-acquisition of Philippine citizenship

Loss of Philippine Citizenship:342 Reacquisition of Philippine Citizenship:

a. Naturalization in a foreign country;

b. Express renunciation of citizenship343

c. Subscribing to an oath of allegiance toconstitution or foreign laws upon attainingof 21 years of age;344

d. Rendering service to or acceptingcommission in the armed forces of aforeign country;

e. Cancellation of certificate of

a. By naturalization346

b. By repatriation347

c. By direct act of Congress

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15

naturalization;

f. Having been declared by final judgmenta deserter of Philippines Armed Forcesin times of war.345

6. Natural-born citizens and public office

Natural Born Citizens:348 The following must be must be natural-borncitizens:

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

b. Those born before January 17, 1973 of

Filipino mothers, who elect Philippinecitizenship upon reaching the age of majority

a. President;349

b. Vice President;350

c. Members of Congress;351

d. Justices of the Supreme Court and lowercollegiate courts;352

e. Ombudsman and his deputies;353

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1:

office for the benefit of the public.

b. There is no such thing as vested interest or an estate inan office or even an absolute right to hold it.

c. Public office is personal to the incumbent thereofappointee thereto.

2. Modes of Acquiring Title to Public Office

a. By appointment

b. By election

c. In some instances, by contract or by some other modes authorized by law.359

3. Modes and Kinds of Appointment

Permanent Extended to a person possessing the requisite qualifications,including the eligibility required for the position, and thusprotected by the constitutional guaranty of security oftenure.

Temporary Extended to one who may not possess the requisitequalifications or eligibility required by law for the position,and is revocable at will, without the necessity of just cause ora valid investigation.360

Acting Appointment The appointee may not possess the required qualities or theeligibility required by law for the position, and is revocableat will without the necessity of just cause and validinvestigation.361

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Temporary Appointment forFixed Period

The appointment may be revoked only at the expiration ofthe period or, if revocation is made before such expiration,the same has to be for a valid and just cause.362

Provisional appointment One issued upon the authorization by CSC to a person whohas not qualified in an appropriate exam but otherwisemeets the requirement for appointment to a regular position

whenever such vacancy occurs and filling it is necessary inthe interest of service and there is no appropriate register of

eligible employees at the time of the appointment.363

Regular One made by the President while Congress is in sessionafter the nomination is confirmed by the COA andcontinues until the end of the term.

Ad-interim One made by while Congress is not in session, before theconfirmation by the COA, is immediately effective andceases to be valid if disapproved or by passed by the COAupon the next adjournment of Congress

4. Eligibility and Qualification364 Requirements

Eligibility It is the state or quality of being legally fit orqualified to be chosen.

Qualification This refers to the act which a person, before enteringupon the performance of his duties, is by law requiredto do such as the taking, and often, subscribing andfiling of an official oath, and in some cases, the giving

of an official bond.

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10

It may refer to:

a. Endowments, qualities, or attributes which makean individual eligible for public office.365

b. The act of entering into the performance of thefunctions of a public office.366

General qualifications:367 a. Citizenship368

b. Residence

c. Age

d. Educational Attainment

e. Civil Service369

5. Disabilities and Inhibitions of Public Officers

a) The President, Vice-President, the Members of the Cabinet, and their deputies orassistants shall not, unless otherwise provided in the Constitution, hold any other office oremployment during their tenure.370

b) No Senator or Member of the House of Representatives may old any other office or

employment in the Government, or any subdivision, agency, or instrumentality thereof,including government-owned or controlled corporations or their subsidiaries, during his termfor which he was elected.371

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c) The Members of the Supreme Court and of other courts established by law shall notbe designated to any agency performing quasi-judicial or administrative functions.372

d) No Member of a Constitutional Commission shall, during his tenure, hold any otheroffice or employment373 the same disqualification applies to the Ombudsman and his

Deputies.374

e) The Ombudsman and his Deputies shall not be qualified to run for any office in theelection immediately succeeding their cessation from office.375

f) Members of Constitutional Commissions, the Ombudsman and his Deputies mustnot have been candidates for any elective position in the election immediately preceding theirappointment.376

g) Members of Constitutional Commissions, the Ombudsman and his Deputies areappointed to a term of seven (7) years, without reappointment.377

The spouse and relatives by consanguinity or affinity within the fourth civil degree of thePresident shall not during his tenure be appointed as Members of the ConstitutionalCommissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmenor heads of bureaus or offices, including government-owned or controlled corporations.378

6. Powers and Duties of Public Officers

Powers

Ministerial Discretionary

Discharge is imperative and it must be doneby the public officer

Public officer may do whichever way he wants provided it is in accordance with lawand not whimsical

Can be compelled by mandamus Cannot be compelled by mandamus except when there is grave abuse of discretion

Can be delegated Cannot be delegated unless otherwise

provided by law

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Duties

General/ Constitutional Specific

a. To be accountable to the people; to servethem with utmost responsibility, integrity,loyalty and efficiency, to act with patriotismand justice; and to lead modest lives.379

b. To submit a declaration under oath of hisassets, liabilities and net worth upon theassumption of office and as often thereafteras maybe required by law.380

c. To owe the state and the Constitution

allegiance at all times.381

a. The Solicitor general’s duty to representthe government, its offices andinstrumentalities and its officials andagents except in criminal and civil casesfor damages arising from felony- ismandatory. Although he has thediscretion in choosing whether or notto prosecute a case or even withdraw therefrom such discretion must be exercised

within the parameters set by law and withthe best interest of the state as the ultimate

goal.

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

7. Rights of Public Officers382

a. Right to Office383

b. Right of Salary 384

c. Right of Preference in Promotion

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d. Right to Vacation and Sick Leave385

e. Right to Maternity, Paternity Leave

f. Right to Retirement Pay 386

g. Right to pension and gratuity

h. Right to reimbursement for expenses incurred in the due performance of his duty.

i. Right to be indemnified against any liability which they may incur in the bona fidedischarge of their duties.

j. Right to longevity pay.

k. Right to present complaints and grievances.

l. Right to exercise the powers connected with the office.

m. Right to special protection.

n. Right to Self-Organization387

8. Liabilities of Public Officers

General Rule on Liability:

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

A public officer shall be civilly liable if there is a clear showing of bad faith, malice ornegligence.388

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the public service and the perplexities and embarrassments of a contrary doctrine.394

This doctrine is applicable only whenever a public officer is in theperformance of his public functions. On the other hand, this doctrine does not apply

whenever a public officer acts outside the scope of his public functions.

10. De Facto Officers395

A de facto officer is one who assumed office under the color of a knownappointment or election but which appointment or election is void for reasons that theofficer was not eligible, or that there was want of power in the electing body, or thatthere was some other defect or irregularity in its exercise, whereinsuch ineligibility, want of power, or defect being unknown to the public.

A de facto officer is entitled toemoluments for actual services rendered, and he cannot be made to reimburse funds

disbursed during his term of office because his acts arevalid as those of a de jure officer.

11. Termination of Official Relation

a. Expiration of term or tenure396

b. Reaching the age limit397

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c. Resignation398

d. Recall

e. Removal399

f. Abandonment400

g. Acceptance of an incompatible office401

h. Abolition of office402

i. Prescription of the right to office

j. Impeachment

k. Death403

l. Failure to assume elective office within six months from proclamation404

m. Conviction of a crime405

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n. Filing of a certificate of candidacy.

12. The Civil Service

a. Scope

The Civil Service embraces all branches, subdivisions, instrumentalities, and agenciesof the government, including government-owned or controlled corporations with originalcharters.406

b. Appointments to the Civil Service

Shall be made only in accordance to merit and fitness to be determined, as far aspracticable, and except appointments to positions which are policy determining; primarilyconfidential or highly technical by competitive examination.407

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c. Personnel Actions

Disciplinary cases involving “personnel action” affecting employees in the CSincluding “appointment through certification, promotion, transfers, reinstatement,reemployment, detail, reassignment, demotion and separation”, as well as employment status

and qualification standards, all within the exclusive jurisdiction of the CSC.408

13. Accountability of Public Officers

a. Impeachment

A national inquest into the conduct of public men.409

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b. Ombudsman

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

Tasked to entertain complaints addressed to him against erring public officers and

take all necessary actions thereon.410

(1) Functions

a. Investigate any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient;

b. Direct any public official or employee of the Government, or any subdivision,agency or instrumentality thereof, as well as any GOCC with original charter, to perform orexpedite any act or duty required by law, or to stop, prevent, and correct any abuse orimpropriety in the performance of duties.

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c. Direct the officer concerned to take appropriate action against a public official oremployee at fault, and recommend his removal, suspension, demotion, fine, censure, orprosecution, and ensure compliance therewith.

d. Direct the officer concerned, in any appropriate case, and subject to such

limitation as may be provided by law, to furnish it with copies of documents relating tocontracts or transactions entered into by his office involving the disbursement or use ofpublic funds or properties, and report any irregularity to the COA for appropriate action.

e. Request any government agency for assistance and information necessary in thedischarge of its responsibilities and examine, if necessary, pertinent records and documents.

f. Publicize matters covered by its investigation when circumstances so warrant and with due process.

g. Determine the causes if inefficiency, red tape, mismanagement, fraud andcorruption and to make recommendations for their elimination and observance of high

standards of ethics and efficiency.

h. Promulgate its rules of procedure and exercise such other powers or perform suchfunction or duties as may be provided by law.411

i. The Office of the Ombudsman shall enjoy fiscal autonomy. Its approved annualappropriations shall be automatically and regularly released.412

(2) Judicial Review in Administrative Proceedings

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

(3) Judicial Review in Penal Proceedings

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

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c. Sandiganbayan413

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

d. Ill-Gotten Wealth

The right of the State to recover properties unlawfully acquired by public officials oremployee, from them or from their nominees or transferees, shall not be barred by

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prescription, laches or estoppel414 but it applies only to civil actions and not to criminalcases.415

14. Term Limits

Elected local official Three (3) years starting from noon of June 30 followingthe election or such date as may be provided by law,except that of elective barangay officials, for maximumof three (3) consecutive terms in same position.416

Barangay officials Three (3) years.417

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J. Administrative Law

1. General Principles

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

2. Administrative Agencies

a. Definition

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

b. Manner of creation

1. by constitutional provision;

2. by legislative enactment; and

3. by authority of law

c. Kinds

Bodies set up to function in situations

1. where the government is offering some gratuity, grant or special privilege.418

2. wherein the government is seeking to carry on certain of the actual business ofgovernment.419

3. wherein the government is performing some business service for the public.420

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b. Quasi-Judicial428 Power

Proceedings partake of nature of judicial proceedings. Administrative body grantedauthority to promulgate its own rules of procedure, provided they do not increase diminishor modify substantive rights, and subject to the disapproval by the Supreme Court.429

(1) Administrative Due Process430

The essence of due process is simply to be heard, or as applied in administrativeproceedings, an opportunity to explain one’s side or an opportunity to seek reconsiderationof the action or ruling complained of.431

Administrative due process is recognized to include the right to:

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

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!45

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

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

4. And a finding or decision by that tribunal supported by substantial evidencepresented at the hearing or at least ascertained in the records or disclosed to the parties.432

(2) Administrative Appeal and Review

Administrative Appeal433 Administrative review

It refers to the review by a higheragency of decisions rendered by anadministrative agency, commenced bypetition of an interested party.

A superior officer or department headmay upon his or her own volition reviewa subordinate’s decision pursuant to thepower of control, however, subject to the

caveat that a final and executory decisionis not included within the power of control,and hence can no longer be altered byadministrative review.

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

By virtue of the power of control of the president over all executive departments, the

President, by himself or through the Department Secretaries,434 may affirm, modify, alter, orreverse the administrative decision of subordinate officials and employees.435

(3) Administrative Res Judicata

The doctrine of res judicata applies only to judicial or quasi-judicial proceedings andnot to the exercise of purely administrative functions.436 Administrative proceedings arenon-litigious and summary in nature; hence, res judicata does not apply.

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!46

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

Fact-Finding Power The power delegated by the legislature to an administrativeagency to determine some fact or state of things upon

which the law makes, or intends to make, its ownaction depend, or the law may provide that it shall

become operative only upon the contingency or somecertain fact or event, the ascertainment of which is leftto an administrative agency.437

Investigative Power The power of an administrative agency to take intoconsideration the result of its own observation andinvestigation of the matter submitted to it for decision,in connection with other evidence presented at thehearing of the case.438

Licensing Power The action of an administrative agency in granting ordenying, or in suspending or revoking a license, permit,franchise, or certificate of public convenience andnecessity.439

Rate Fixing Power It is the power usually delegated by the legislatureto administrative agencies for the latter to fix the rates

which public utility companies may charge the public.440

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4. Judicial Recourse and Review441

Doctrine of Primary Administrative Jurisdiction442

Judicial action of a case is deferred pending thedetermination of some issues which properly belongto an administrative body because their expertise,specializes skills, knowledge and resources are

required for the resolution of factual and non-legalmatters. In such a case, relief must first be soughtand obtained in the administrative body concernedbefore the Court will supply the remedy. Where astatute lodges exclusive original jurisdiction in anadministrative agency, the court will refuse to takeup a case unless the agency has finally completedits proceedings.443

Doctrine of Exhaustion of

Administrative Remedies444

Whenever there is an available administrative

remedy provided by law, no judicial recourse can be

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made until all such remedies have been availed ofand exhausted. Before a party can invoke thejurisdiction of the courts of justice, he is expectedto have exhausted all means of administrativeredress afforded to him by law.

Doctrine of Finality of Administrative Action

No resort to courts will be allowed unlessadministrative action has been completed and thereis nothing left to be done in administrativestructure.

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!40

K. Election Law

1. Suffrage

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

2. Qualification and Disqualification of Voters

Qualifications Disqualifications

1. Filipino citizenship- it may be by birthor naturalization.

2. Age - a person may be registered as a voteralthough he is less than 18 years at the timeof registration if he will be at least 18 on the

day of election.

3. Residence - at least 1 year in thePhilippines, and at least 6 months wherehe proposes to vote immediately precedingthe election. Any person who, on the daysof registration may not have been reachedthe required period of residence but who, onthe day of election shall possesssuch qualification, may register as voter.445

No literacy, property or other substanti

1. Any person sentenced by the finaljudgment to suffer imprisonment for not lessthan 1 year.

2. Any person adjudged by final judgmentof having committed

(a) any crime involving disloyalty tothe government or

(b) any crime against national securityfirearms laws.

3. Insane or incompetent persons as declaredby competent authority.

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!43

requirement shall be imposed on the exercisesuffrage.

3. Registration of Voters

The personal filing of application of registration of voters shall be conducted daily in theoffice of the Election Office during regular office hours. No registration shall, however, beconducted during the period starting 120 days before a regular election and 90 days before aspecial election.446

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4. Inclusion and Exclusion Proceedings447

Jurisdiction

Municipal or Metropolitan Trial Court

Regional Trial Court Supreme Court

Original and Appellate jurisdiction Appellate jurisdiction over

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exclusive Jurisdiction (5 days)448 RTC on question of law(15 days)449

5. Political Parties

A political party is any organized group of persons pursuing the same ideology, politicalideas or platforms of government and includes its branches or divisions.

A political party may refer to a local regional or national party existing and dulyregistered and accredited by the COMELEC. To acquire juridical personality, qualify foraccreditation, and to be entitled to the rights of political parties, a political party must beregistered with the COMELEC.450

a. Jurisdiction of the COMELEC over political parties

Flowing from its constitutional power to enforce and administer all laws and regulationsrelative to the conduct of the election and its power to register and regulate political parties, theCommission on Elections may resolve matters involving the ascertainment of the identity of thepolitical party and its legitimate officers.451

b. Registration

In order to acquire juridical personality as a political party, to entitle it to the benefitsand privileges granted under the Constitution and the laws, and in order to participate in theparty-list system, the group must register with the Commission on Elections by filing with the

COMELEC not later than 90 days before the election a verified petition stating its desire toparticipate in the party-list system as a national, regional, sectoral party or organization or acoalition of such parties or organizations.452

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2. Senators

a. natural-born citizen of the Philippines,

b. a registered voter,

c. able to read and write,

d. at least thirty-five (35) of years of ageon the day of the election, and

f. a resident of the Philippines for notless than 2 years immediately preceding theday of the election.

3. Congressmen – District and Party –List Representatives

a. natural-born citizen of the Philippines,

b. a registered voter,

c. able to read and write,

d. at least twenty -five ((25) of years of

age on the day of the election, and

e. except the party-list representatives,a registered voter in the district in which heshall be elected, and

f. a resident of the Philippines for notless than two (2) years immediately precedingthe day of the election.

mayor or member of the sangguniang panlungsod of highly urbanized cities mustbe at least twenty-one (21) years of ageon election day.

3. Candidates for the position of mayor or vice-mayor of independent component cities,component cities, or municipalitiesmust be at least twenty-one (21) years of ageon election day.

4. Candidates for the position of member ofthe sangguniang panlungsod or sangguniang bayanmust be at least eighteen (18) years ofage on election day.

5. Candidates for the position of punongbarangay or member of the sangguniangbarangay must be at least eighteen (18) yearsof age on election day.

6. Candidates for the sangguniang kabataan must be at least fifteen (15) years of age butnot more than twenty-one (21) years of ageon election day.455

b. Filing of Certificates of Candidacy

(1) Effect of Filing

Appointive official Any person holding an appointive office or position,including active members of the Armed Forces of thePhilippines, and officers and employees in GOCCs,

shall be considered ipso facto resigned from his office



!!5

upon the filing of his certificate of candidacy. Suchresignation is irrevocable.456

Elective official No effect.

The candidate shall continue to hold office, whether heis running for the same or a different position.457

(2) Substitution of Candidates

If after the last day for the filing of certificates of candidacy, anofficial candidate of a political party: (1) dies, (2) withdraws or is (3) disqualified for anycause a person belonging to, and certified by, the same political party may file

a certificate of candidacy not later than mid!day of election day to replace the

candidate who died, withdrew or was disqualified.458

However, no substitution shall be allowed for any independent candidate. 459

(3) Ministerial duty of COMELEC to receive certificate

Subject to its authority over nuisance candidates and its power to deny due course toor cancel a certificate of candidacy,460 the COMELEC shall have only the ministerial duty toreceive and acknowledge receipt of the certificate of candidacy.461

(4) Nuisance Candidates

They are candidates who have no bona fide intention to run for the office for which the COC has been filed and would thus prevent a faithful election.

COMELEC may motu proprio or upon petition of an interested party, refuse to givedue course to or cancel certificate of candidacy if shown that said certificate was filed:

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1. to put election process in mockery or disrepute;

2. to cause confusion among voters by similarity of names of registered candidates;

3. by other circumstances or acts which demonstrate that a candidate has no bonafide intention to run for office for which certificate has been filed, and thus prevent afaithful determination of true will of electorate.

(4) Petition to Deny or Cancel Certificates of Candidacy 462

A verified petition seeking to deny duecourse or to cancel a certificate of candidacy may be filed by the person exclusively onthe ground that any material representation contained therein as required463 is false. Thepetition may be filed at any time not later than 25 days from the time of the filing of thecertificate of candidacy and shall be decided, after due notice and hearing, not later than15 days before the election.

The petition shall be filed by any registered candidate for the same Office within 5 daysfrom the last day of filing of certificates of Candidacy.464

(5) Effect of Disqualification

After final judgment Any candidate who has been declared by final judgment tobe disqualified shall not be voted for, and the votes cast forhim shall not be counted.

Before final judgment If for any reason a candidate is not declared by final Judgment before an election to be disqualified and he is voted for and receives the winning number of votes in suchelection the Court or Commission shall continue with thetrial and hearing of the action, inquiry or protest and, uponmotion of the complainant or any intervenor, may, duringthe tendency thereof, order the suspension of theproclamation of such candidate whenever the evidence ofguilt is strong.465

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(6) Withdrawal of Candidates

A person who has filed a CoC may, prior to the election, withdraw the same by

submitting to the COMELEC a written declaration under oath.466

7. Campaign

a. Premature Campaigning

It shall be unlawful for any person, whether or not a voter or candidate, orforany party, or association of persons, to engage in an election campaign or partisanpolitical activity except during the campaign period.467

b. Prohibited Contributions

Those made directly or indirectly by any of the following:

1. Public or private financial institutions

2. Public utilities and those who exploit natural resources468

3. Persons who hold contracts or sub-contracts to supply the government with goodsand services.

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4. Persons granted franchises, incentives, exemptions or similar privileges by thegovernment

5. Persons granted loans in excess of P25, 000 by the government or any of itssubdivisions or instrumentalities

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

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

8. Foreigners and foreign corporations469

9. Corporations470

c. Lawful and prohibited election propaganda

Lawful propaganda Prohibited Campaign

1. Forms

2. Pamphlets, leaflets, cards, decals, stickersand written or printed materials not morethan 8! inches by 14 inches

3. Handwritten/printed letters

4. Cloth, paper or cardboard, postersmeasuring, not more than 2 feet by 3 feet 3by 8 ft. allowed in announcing at the site onthe occasion of a public meeting or rally, maybe displayed 5 days before the date of rallybut shall be removed within 24 hours aftersaid rally.

5. Paid print advertisements:" page inbroadsheets and! pages in tabloids thrice a

week per newspaper, magazine or otherpublication during the campaign period.471

1. Public exhibition of a movie,cinematograph or documentary portrayingthe life or biography of a candidateduring campaign period.

2. Public exhibition of a movie,cinematograph or documentary portrayed byan actor or media personality who is himselfa candidate;

3. Use of airtime for campaign of a mediapractitioner who is an official of a party ora member of the campaign staff of acandidate or political party.473

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:34 %-($ 60 OYP* I)8/$ I).-

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6. Broadcast Media

National Positions: 120 minutes for TV,180 minutes for radio

Local Positions: 60 minutes for TV, 90minutes for radio

7. Other forms of election propaganda notprohibited by the Omnibus Election Codeand R.A. 9006, and authorized by theCOMELEC.472

d. Limitations on expenses

Candidates a. President and vice president – P10 per voter

b. Other candidates – P3 per voter in his constituency

c. Candidate without political party – P5 per voter

d. Party/organization and coalition participating in theparty – list system – P5 per voter

Political party and coalition P5 per voter in the constituency where it has candidates.474

e. Statement of contributions and expenses

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Every candidate and treasurer of political party shall, within 30 days after day of election,

file offices of COMELEC the full, true and itemized statement of all contribution and

expenditures in connection with election.

A candidate who withdraws his certificate of candidacy must still file a statement of

contributions and expenditures, for the law makes no distinction.475

8. Board of Election Inspectors and Board of Canvassers

a. Composition

Board of Election Inspectors Board of Canvassers

A chairman and two members, all of whomare public school teachers. 476

Provincial:

1. The provincial election supervisor or alawyer in the regional office of theCOMELEC, as chairman,

2. The provincial fiscal, as vice chairman,and

3. The provincial superintendent of schoolsmember.477

City:

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9. Remedies and Jurisdiction in Election Law

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

Maybe filed by the person exclusively on the ground that any material representation

contained therein as required481

is false.

The/petition may be filed at any time not later than 25 days from the time of thefiling of the certificate of candidacy and shall be decided, after due notice andhearing, not later than 15 days before the election.482

b. Petition for disqualification

Any citizen of voting age, or duly registered political party, organization or coalitionof political parties may file with the Law Department of the Commission a petition todisqualify a candidate on grounds provided by law.

c. Petition to Declare Failure of Elections483

There are only 3 instances where a failure of elections may be declared, namely:

a. The election in any polling place has not been held on the date fixed on accountof force majeure, violence, terrorism, fraud, or other analogous causes;

b. The election in any polling place had been suspended before the hour fixed bylaw for the closing of the voting on account of force majeure, violence,terrorism, fraud, or other analogous causes; and

c. After the voting and during the preparation and transmission of the electionreturns or in the custody or canvass thereof such election results in a failure toelect on account of force majeure, violence, terrorism, fraud or other analogouscauses.484

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!54

d. Pre-Proclamation Controversy 485

Any question pertaining to or affecting the proceedings of the board of canvassers which may be raised by any candidate or by any registered political party or coalition of

political parties before the board or directly with the Commission, or any matter raised underSections 233, 234, 235 and 236486 in relation to the preparation, transmission, receipt,custody and appreciation of the election returns.487

e. Election Protest488

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!5!

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

Grounds Time to file

1. Fraud,

2. terrorism,

3. irregularities or

4. illegal acts committed before, during orafter the casting and counting of votes

Within 10 days from the proclamation ofthe results of the election

e. Quo Warranto

Filed by any registered voter in the constituency.

Grounds Time to file

1. Ineligibility or

2. disloyalty to the Republic of the Philippine

Within 10 days from the proclamation ofthe results of the election

10. Prosecution of Election Offenses

The COMELEC is vested with the power of a public prosecutor with theexclusive authority to conduct the preliminary investigation and prosecution of electionoffenses punishable under the Omnibus Election Code.489

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!55

L. Local Governments

1. Public Corporations

a. Concept

One formed and organized for the government of a portion of the State.

(1) Distinguished from Government-Owned or ControlledCorporations (GOCCs)

Public corporation GOCCsPurpose

Administration of localgovernment

Performance of functions relating to public needs whether Governmental or Proprietary in nature.

Who creates

By the state either bygeneral or special act

By Congress or by incorporators

How created

By legislation 1. Original charters orspecial laws or

2. general corporation law as a stock or non!stock corporati



!56

b. Classifications

Quasi-Corporations Municipal Corporations

Public corporations createdagencies of State for narrowand limited purpose.

A body politic and corporate constituted by incorporationof inhabitants of city or town for purposes of localgovernment thereof or as agency of State to assist incivil government of the country; one formed andorganized for the government of a portion of the State.

2. Municipal Corporations

a. Elements

1. Legal creation or incorporation

2. Corporate name

3. Inhabitants

4. Territory

b. Nature and Functions

Nature

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

Functions

Public/Governmental Private/Proprietary

It acts as an agent of the State for thegovernment of the territory and theinhabitants within the municipal limits;it exercises by delegation a part of thesovereignty of the State.

It acts in a similar category as a businesscorporation, performing functions not strictlygovernmental or political; it stands forthe community in the administration oflocal affairs. It acts as a separate entity



!5:

for its own purposes and not as asubdivision of the State.

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

Dissolution

Creation and Conversion

Plebiscite requirement490 Must be approved by majority of the votes cast in aplebiscite called for such purpose in the political unitor units directly affected.

Income requirement Must be sufficient on acceptable standards to providefor all essential government facilities and services and

special functions commensurate with the size of itspopulation as expected of the local government unitconcerned.

Average annual income for the last consecutive yearshould be at least:

a. Province – P 20M

b. Highly Urbanized City – P 50M

c. City – P 20M491

d. Municipality – P 2.5M

Population requirement To be determined as the total number of inhabitants within the territorial jurisdiction of the local governmentunit concerned.

The required minimum population shall be:

a. Barangay – 2K

But 5K in:i. Metro Manila

ii. Highly urbanized cities

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b. Municipality – 25K

c. City – 150K

d. Province – 250K

Land requirement Must be contiguous, unless it comprises two ormore islands or is separated by a local governmentunit; properly identified by metes and bounds; andsufficient to provide for such basic services andfacilities.

Area requirements are:

a. Municipality – 50 sq. km492

b. City – 100 sq. km493

c. Province – 2,000 sq.km494

Division and Merger

The division and merger of local government units shall comply with the samerequirements for their creation. The income, population or land area shall not be reducedto less than the minimum requirements. Likewise, the income classification of theoriginal local government unit shall not fall below its current income classification prior tosuch division.495

Abolition

A local government unit may be abolished when its income, population or landarea has been irreversibly reduced to less than the minimum standards prescribed forits creation under the LGC, as certified by the national agencies to Congress or to theSanggunian concerned. Likewise, the law or, ordinance abolishing an LGU shall specifythe province, city, municipality, or barangay with which the local government unit

sought to be abolished will be incorporated or merged.496

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!50

3. Principles of Local Autonomy

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

4. Powers of Local Government Units (LGUs)

a. Police Power497

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

liberty and property.

b. Eminent Domain

The power to expropriate private property has been delegated by Congress to LGUsunder Section 19, LGC. The exercise by LGUs of the power of eminent domain are subjectto the usual constitutional limitations such as necessity, private property, taking, public use,just compensation and due process of law.498

The determination of whether there is genuine necessity for the exercise of thepower of eminent domain is a justiciable question when exercised by the LGUs and generallya political question when exercised by Congress.499

c. Taxing Power500

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!51

registered voters of the provinces, cities,municipalities and barangays.503

f. Corporate Powers

1) To Sue and Be Sued

The rule is that suit is commenced by the local executive, upon the authority of theSanggunian , except when the City Councilors, by themselves and as representatives of orbehalf of the City, bring the action to prevent unlawful disbursement of City funds.505

2) To Acquire and Sell Property

i. The local government unit may acquire real or personal, tangible or intangibleproperty, in any manner allowed by law 506

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

iii. In the absence of proof that the property was acquired through corporate orprivate funds, the presumption is that it came from the State upon the creation of themunicipality and, thus, is governmental or public property.507

iv. Town plazas are properties of public dominion; they may be occupied

temporarily, but only for the duration of an emergency.508

v. A public plaza is beyond the commerce of man, and cannot be the subject oflease or other contractual undertaking. And, even assuming the existence of a valid lease ofthe public plaza or part thereof, the municipal resolution effectively terminated theagreement, for it is settled that the police power cannot be surrendered or bargained awaythrough the medium of a contract.509

3) To Enter Into Contracts

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!64

d. The local government unit is subsidiarily liable for damages suffered by a person byreason of the failure or refusal of a member of the police force to render aid and prosecutionin case of danger to life and property.516

Liability for Tort.

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

b. If engaged in proprietary functions, local government unit is liable.

h. Settlement of Boundary Disputes

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

To this end:

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

b. Boundary disputes involving two or more municipalities within the same provinceshall be referred for settlement to the sangguniang panlalawigan concerned.

c. Boundary disputes involving municipalities or component cities of differentprovinces shall be jointly referred for settlement to the sanggunians of the provincesconcerned.

d. Boundary disputes involving a component city or municipality on the one handand a highly urbanized city on the other, or two or more highly urbanized cities, shall bejointly referred for settlement to the respective sanggunians of the parties.517

i. Succession of Elective Officials

Rules:518

A. Permanent vacancies: A permanent vacancy arises when an elective local officialfills a higher vacant office, refuses to assume office, fails to qualify, dies, is removed from

office, voluntarily resigns, or is permanently incapacitated to discharge the functions of hisoffice.

a. Governor and Mayor

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i. Vice Governor and Vice Mayor

ii. Sanggunian members according to ranking

b. Punong barangay

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

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

d. Ties will be resolved by drawing of lots.519

e. Sanggunian:

i. Provinces, highly urbanized cities and independent component cities-

appointment by the President

ii. Component city and municipality- appointment by governor

iii. Sangguniang barangay - appointment by mayor

iv. Except for the sangguniang barangay , the appointee shall come from thepolitical party of the member who caused the vacancy.520

v. If the member does not belong to any party, the appointee shall berecommended by the sanggunian.

vi. The appointee for the sangguniang barangay shall be recommended by thesangguniang barangay.

vii. Vacancy in the representation of the youth and the barangay in thesanggunian shall be filled by the official next in rank of theorganization.521

j. Discipline of Local Officials

(1) Elective Officials

(a) Grounds

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

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!65

1. Disloyalty to the Republic of the Philippines.

2. Culpable violation of the Constitution

3. Dishonesty, oppression, misconduct in office, gross negligence, or dereliction ofduty.

4. Commission of any offense involving moral turpitude or an offense punishable byat least prision mayor.

5. Abuse of authority.

6. Unauthorized absence for 15 consecutive working days, except in the case ofmembers of the sangguniang panlalawigan, panlungsod , bayan and barangay.

7. Application for, or acquisition of, foreign citizenship or residence or the status ofelective barangay officials, shall be filed before the sangguiniang panlungsod or sangguniang bayan concerned, whose decision shall be final and executory.

(b) Jurisdiction

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

2. By the governor, if the respondent is an elective local official of a component cityor municipality;

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

(c) Preventive Suspension

Who may impose 1. By the President, if the respondent is an elective officialof a province, a highly urbanized or an independentcomponent city;

2. By the governor, if the respondent is an elective localofficial of a component city or municipality;

3. By the mayor, if the respondent is an elective official ofthe barangay.522

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!66

When may be imposed At any time:

1. After the issues are joined;

2. When the evidence of guilt is strong; and

3. Given the gravity of the offense, there is great probabilitythat the continuance in office of the respondent couldinfluence the witnesses or pose a threat to the safety andintegrity of the records and other evidence.523

(d) Removal

A verified complaint against any erring local elective official shall be filed to theOffice of the President if the official is of the province or city, to the Sangguniang Panlalawigan in case municipal elective officials, or to the Sangguniang Bayan or Panlunsod in case ofbarangay officials.524

Grounds:525

1. Gross Misconduct: irregularity in official duties.526

2. Dishonesty

3. Abandonment

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4. Gross Negligence

(e) Administrative Appeal

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

1. The sangguniang panlalawigan , in the case of decisions of component cities’sangguniang panlungsod and the sangguiniang bayan ;

2. The Office of the President, in the case of decisions of the sangguniang panlalawigan and the sangguniang panlungsod of highly urbanized cities and independent component cities.Decisions of the Office of the President shall be final and executory.

(f) Doctrine of Condonation

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

(2) Appointive Officials527

Officials common to all Municipalities, Cities and Provinces528

a. Secretary to the Sanggunian

b. Treasurer

c. Assessor

d. Accountant

e. Budget Officer

f. Planning and Development Coordinator

g. Engineer

h. Health Officer

i. Civil Registrar

j. Administrator

k. Legal Officer

l. Agriculturist

m. Social Welfare and Development Officer

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n. Environment and Natural Resources Officer

o. Architect

p. Information Officer

q. Cooperatives Officer

r. Population Officer

s. Veterinarian

t. General Services Officer

k. Recall529

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

1. By whom exercised- by the registered voters of a local government unit to which

the local elective official subject to such recall belongs.

2. Two modes of initiating recall:

i. By a preparatory recall assembly 530

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!60

ii. By the registered voters of the local government unit531

l. Term Limits

Three (3) years, starting from noon of June 30, 1992, or such date as may beprovided by law, except that of elective barangay officials. No local elective official shallserve for more than three consecutive terms in the same position. The term of office ofbarangay officials and members of the sangguniang kabataan shall be for five years, which shallbegin after the regular election of barangay officials on the second Monday of May, 1997.532

The three-term limit on a local official is to be understood to refer to terms for which the official concerned was elected. Thus, a person who was elected Vice Mayor in1988 and who, because of the death of the Mayor, became Mayor in 1989, may still beeligible to run for the position of Mayor in 1998, even if elected as such in 1992 and 1995.533

After three consecutive terms, an elective local official cannot seek immediatereelection for a fourth term. The prohibited election refers to the next regular election forthe same office following the end of the third consecutive term. Any other subsequentelection, like a recall election is no longer covered by the prohibition.534

M. National Economy and Patrimony535

1. Regalian Doctrine536

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!63

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

2. Nationalist and Citizenship Requirement Provisions

Lands of the public domain are classified into agricultural, forest or timber, minerallands and national parks. Agricultural lands of the public domain may be further classified bylaw according to the uses to which they may be devoted. Alienable lands of the publicdomain shall be limited to agricultural lands. Private corporations or associations may nothold such alienable lands of the public domain except by lease, for a period not exceedingtwenty-five years, renewable for not more than twenty-five years, and not to exceed onethousand hectares in area. Citizens of the Philippines may lease not more than five hundredhectares, or acquire not more than twelve hectares thereof, by purchase, homestead, orgrant.

Taking into account the requirements of conservation, ecology, and development,and subject to the requirements of agrarian reform, the Congress shall determine, by law, thesize of lands of the public domain which may be acquired, developed, held, or leased and theconditions therefor.537

The Congress shall, upon recommendation of the economic and planning agency, when the national interest dictates, reserve to citizens of the Philippines or to corporationsor associations at least sixty per centum of whose capital is owned by such citizens, or suchhigher percentage as Congress may prescribe, certain areas of investments. The Congressshall enact measures that will encourage the formation and operation of enterprises whosecapital is wholly owned by Filipinos.

In the grant of rights, privileges, and concessions covering the national economy andpatrimony, the State shall give preference to qualified Filipinos. The State shall regulate andexercise authority over foreign investments within its national jurisdiction and in accordance

with its national goals and priorities.538

The State shall promote the preferential use of Filipino labor, domestic materials andlocally produced goods, and adopt measures that help make them competitive.539

The State shall pursue a trade policy that serves the general welfare and utilizes allforms and arrangements of exchange on the basis of equality and reciprocity.540

3. Exploration, Development and Utilization of Natural Resources

The exploration, development, and utilization of natural resources shall be under thefull control and supervision of the State. The State may directly undertake such activities, or

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it may enter into co-production, joint venture, or production-sharing agreements withFilipino citizens, or corporations or associations at least 60 per centum of whose capital isowned by such citizens. Such agreements may be for a period not exceeding twenty-fiveyears, renewable for not more than twenty-five years, and under such terms and conditionsas may be provided by law.

In cases of water rights for irrigation, water supply, fisheries, or industrial uses otherthan the development of waterpower, beneficial use may be the measure and limit of thegrant.

The State shall protect the nations marine wealth in its archipelagic waters, territorialsea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipinocitizens.

The Congress may, by law, allow small-scale utilization of natural resources byFilipino citizens, as well as cooperative fish farming, with priority to subsistence fishermen

and fish workers in rivers, lakes, bays, and lagoons.

The President may enter into agreements with foreign-owned corporations involvingeither technical or financial assistance for large-scale exploration, development, andutilization of minerals, petroleum, and other mineral oils according to the general terms andconditions provided by law, based on real contributions to the economic growth and general

welfare of the country. In such agreements, the State shall promote the development and useof local scientific and technical resources.

The President shall notify the Congress of every contract entered into in accordance with this provision, within thirty days from its execution.541

4. Franchises, Authority and Certificates for Public Utilities

No franchise, certificate, or any other form of authorization for the operation of apublic utility shall be granted except to citizens of the Philippines or to corporations orassociations organized under the laws of the Philippines, at least sixty per centum of whosecapital is owned by such citizens; nor shall such franchise, certificate, or authorization beexclusive in character or for a longer period than fifty years. Neither shall any such franchiseor right be granted except under the condition that it shall be subject to amendment,alteration, or repeal by the Congress when the common good so requires. The State shallencourage equity participation in public utilities by the general public. The participation of

foreign investors in the governing body of any public utility enterprise shall be limited totheir proportionate share in its capital, and all the executive and managing officers of suchcorporation or association must be citizens of the Philippines.542

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

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"An essential distinction should be drawn between the obligations of a State towardsthe International community as a whole, and those arising vis-a-vis another State In the fieldof diplomatic protection. By their very nature the former are the concern of all States. In

view of the Importance of the rights Involved, all States can be held to have a legal Interest

In their protection; they are obligations erga omnes . Such obligations derive, for example. Incontemporary International law, from the outlawing of acts of aggression, and of genocide,as also from the principles and rules concerning the basic rights of the human person,Including protection from slavery and racial discrimination. Some of the correspondingrights of protection have entered Into the body of general international law...; others areconferred by International Instruments of a universal or quasi universal character."

b. Jus Cogens

A norm accepted and recognized by the international community/of States as a whole as a norm from which no derogation is permitted and which canbe modified only by a subs

equent norm of general international law having the same character.556

c. Concept of Aeguo Et Bono

It is a judgment based on considerations of fairness, not on considerations ofexisting law, that is, to simply decide the case based upon a balancing of the equities.557

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

2. International and National Law

International Law National law

The law that deals with the conduct of statesand international organizations, theirrelations with each other and, in certaincircumstances, their relations with persons,natural or juridical.558

A law or group of laws that apply to a singlecountry or nation, within a determinedterritory and its inhabitants.

Adopted by states as a common rule of Action.

Issued by a political superior for observance.

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c. General Principles of Law- mostlyderived from the law of nature and areobserved by the majority of states becausethey are believed to be good and just.559

4. Subjects

A subject of international law is an entity with capacity of possessinginternational rights and duties and of bringing international claims.

a. States

A state is a group of people, living together in a fixed territory, organized for politicalends under an independent government, and capable of entering into international relations

with other states.

b. International Organizations

May be vested with international personality, provided that they are non-political andare autonomous and not subject to control by any state.560

c. Individuals

Although traditionally, individuals have been considered merely as objects, notsubjects, of international law, they have also been granted a certain degree of internationalpersonality under a number of international agreements.

5. Diplomatic and Consular Law561

6. Treaties

Treaty is a formal agreement, usually but not necessarily in writing, which is enteredinto by states or entities possessing the treaty-making capacity, for the purpose of regulatingtheir mutual relations under the law of nations.562

An international agreement concluded between states in written form and governedby international law whether embodied in a single instrument or in two or more relatedinstruments.563

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7. Nationality and Statelessness

Nationality Statelessness

Membership in a political community withall its concomitant rights and obligations.564

It is the tie that binds the individual tohis State, from which he can claimprotection and whose laws he is obliged toobey.

The condition or status of an individual who is born without any nationality or wholoses his nationality without retaining oracquiring another.565

a. Vienna Convention on the Law of Treaties566

7. State responsibility

1. Doctrine of state responsibility

A state may be held liable for injuries and damages sustained by the alien while in the

territory of the state provided:

1. the act or omission constitutes an international delinquency;2. the act or omission is directly or indirectly imputable to the State; and3. injury to the claimant State indirectly because of damage to its national.

8. Jurisdiction of States

a. Territoriality principle

Vests jurisdiction in state where offense was committed.567

b. Nationality principle and statelessness

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Nationality principle

Vest jurisdiction in state of offender.568

Statelessness

International conventions provide that stateless individuals are to be treated more orless like the subjects of a foreign state.

c. Protective principle

Vest jurisdiction in state whose national interests is injured or national securitycompromised.569

d. Universality principle

Vest jurisdiction in state which has custody of offender of universal crimes.570

e. Passive personality principle

Vests jurisdiction in state of offended party.

f. Conflicts of Jurisdiction

A conflict of jurisdiction arises if a dispute can be brought entirely or partly before

two or more different courts or tribunals.

9. Treatment of Aliens

A State may be held responsible for an international delinquency directly orindirectly imputable to it which causes injury to the national of another State. Liability willattach to the State where its treatment of the alien falls below the internationalstandard of justice or where it is remiss in according him the protection orredress that is warranted by the circumstances.571

Flowing from its right to existence and as an attribute of sovereignty, no State is

under obligation to admit aliens. The State can determine in what cases and under whatconditions it may admit aliens.

The standards to be used are the following:

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National treatment/ equality of treatment Minimum international standard

Aliens are treated in the same manner asnationals of the State where they reside

However harsh the municipal laws mightbe, against a State’s own citizens, aliens

should be protected by certain minimumstandards of humane protection.

a. Extradition

(1) Fundamental Principles

1. Extradition is based on the consent of the state of asylum as expressed in a treatyor manifested as an act of goodwill.

2. Under the principle of specialty, a fugitive who is extradited may be tried only forthe crime specified in the request for extradition and included in the list of offenses in theextradition treaty.572

3. Any person may be extradited, whether he be a national of the requesting state, ofthe state of refuge or of another state. The practice of many states now, however, is not toextradite their own nationals but to punish them under their own laws in accordance withthe nationality principle of criminal jurisdiction.

4. Political and religious offenders are generally not subject to extradition.573

5. In the absence of special agreement, the offense must have been committed withinthe territory or against the interests of the demanding state.

6. The act for which the extradition is sought must be punishable in both therequesting and requested states under what is known as the rule of double criminality.574

(2) Procedure575

1. Request through diplomatic representative with:

a. decision of conviction;

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(3) Distinguished from Deportation

Extradition580 Deportation581

Affected at the request of the state of nation Unilateral act of the local state

Based on offenses generally committed in thestate of origin

Based on causes arising in the local state.

Calls for the return of the fugitive to theState of origin

An undesirable alien may be deported to astate other than his own or the state of origin.

9. International Human Rights Law

a. Universal Declaration of Human Rights (UDHR)

The basic international statement of the inalienable and inviolable rights of humanbeings. It is the first comprehensive international human rights instrument.

Rights covered:

1. Civil and political rights

2. Economic, social and cultural rights582

b. International Covenant on Civil and Political Rights (ICCPR)583

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c. International Covenant on Economic, Social and Cultural Rights(ICESCR)

Under the Convention on the Elimination of all forms of Discrimination Against women (CEDAW):

1. Guarantee of economic, social and cultural rights

2. Equal rights with men as regards education

3. Equal rights with men as regards employment

4. Prohibition against dismissals due to marriage, pregnancy or maternity leave

5. Promotion of child-care facilities, special protection to pregnant women as regardstype of work

6. Equal access with men as regards health services, right to services in connection with pregnancy, adequate nutrition during pregnancy and lactation and confinement and thepost natal period.

7. Right to enter marriage, to freely choose a spouse and to enter into marriage only with free and full consent

8. Equal rights and responsibilities as parents, to freely decide number of childrenand access to information and education to be able to exercise their rights.

10. International Humanitarian Law (IHL)584 and Neutrality

International humanitarian law is a set of rules which seek, for humanitarian reasons,to limit the effects of armed conflict. It protects persons who are not or are no longerparticipating in the hostilities and restricts the means and methods of warfare. Internationalhumanitarian law is also known as the law of war or the law of armed conflict.585

a. Categories of Armed Conflicts

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(1) International Armed Conflicts

Those in which at least two States are involved. They are subject to a wide range ofrules, including those set out in the four (4) Geneva Conventions and Additional Protocol I.

All cases of declared war or any other armed conflict which mayarise between two (2) or more of the Highest contracting parties, even if the Stateof war is not recognized by one of them.586

It also applies to armed conflict between the government and a rebel or insurgentmovement.587

(2) Internal or Non-International Armed Conflict

Those restricted to the territory of a single State, involving either regular armedforces fighting groups of armed dissidents, or armed groups fighting each other. A more

limited range of rules apply to internal armed conflicts and are laid down in Article 3common to the four (4) Geneva Conventions as well as in Additional Protocol II.

These are governed by the provisions of human rights law and such measuresof domestic legislation as may be invoked. IHL does not apply to situations of

violence not amounting in intensity to an armed conflict.

(3) Wars of National Liberation

These are armed conflicts in which people are fighting againstcolonial dominationand alien occupation and against racist regimes in the exercise of

their right to self-determination.588 These are sometimes called insurgencies, rebellions or wars ofindependence.

The first Protocol of 1977 provides that peoples fighting against colonial dominationand alien occupation and against racist regimes in the exercise of their right of self-determination are to be treated as if they were engaged in an international armed conflict andnot a civil war. There is considerable difficulty over the meaning of this phrase, and it maybe difficult to apply in practice.589

b. Core International Obligations of States in IHL

Article 1 of all four (4) Geneva Conventions is a key provision when it comes to astate’s responsibilities under international humanitarian law (IHL). It provides that states areresponsible to “respect and ensure respect” for the Conventions in all circumstances.

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“To respect” means that all state institutions, and all other individuals orbodies under their authority, must follow the rules of the Geneva Conventions. A state has aduty 590 to do everything it can to ensure that the Conventions are respected by all.

A state is responsible for its soldiers' behaviour when they take part in conflicts

abroad, for example, in peace-keeping missions. In fact, states are responsible to ensure thatthe rights in the Conventions are respected in all places under its control, for example it hasto ensure the protection of prisoners in a prison, which is run by its armed forces abroad.

In order to fulfill its obligation to respect IHL, a state must exercise rigorous controlover its soldiers, other relevant personnel, and institutions involved in the fighting ordecision-making surrounding an armed conflict.

To "ensure respect" mainly focuses on the obligation of third states that are notdirectly involved in the conflict - the international community – to intervene if the parties tothe conflict themselves violate the Conventions. This section only deals with the obligations

of the primary violating state.

c. Principles of IHL

(1) Treatment of Civilians591

In cases not covered by other international agreements, civilians and combatantsremain under the protection and authority of the principles of international law derivedfrom established custom, from the principles of humanity and from the dictates ofpublic conscience.592

(2) Prisoners of War

Rights and privileges:

1.They must be treated humanely, shall not be subjected to physical or mentaltorture, shall be allowed to communicate with their families, and may receive food,clothing, educational and religious articles.

2.They may not be forced to reveal military data except the name,rank, serial number, army and regimental number and date of birth; they may not becompelled towork for military services.

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3.All their personal belonging except their arms and military papers remain theirproperty.

4. They must be interned in a healthful and hygienic place.

5.After the conclusion of peace, their speedy repatriation must be accomplished as soon as is practicable.

d. Law on Neutrality

Law governing a country's abstention from participating in a conflict or aiding aparticipant of such conflict, and the duty of participants to refrain from violating theterritory, seizing the possession, or hampering the peaceful commerce of the neutralcountries.593

For example, the Neutrality Act of 1939,594 was passed by Congress for the purpose

of preserving the neutrality of the United States and averting the risks that brought theUnited States into World War I.595 The codified law of traditional neutrality is to be found in

The Hague Conventions Nos. V and XIII of 1907.

11. Law of the Sea596

a. Baselines

Consist of straight lines joining appropriate points of the outermost islands of thearchipelago.

Lines from which the breadth of the territorial sea, the contiguous zone andthe exclusive economic zone is measured in order to determine themaritime boundaryof the coastal State.

b. Archipelagic States

States constituted wholly by one or more archipelagos and may include otherislands.597

(1) Straight Archipelagic Baselines

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An archipelagic State may draw straight archipelagic baselinesby joining the outermost points of the outermost islands and drying reefs of thearchipelago provided that within such baselines are included the main islands and an areain which the ration of the water to the area ofthe land, including atolls, is between 1to 1 and 9 to 1.598

(2) Archipelagic Waters

These are waters enclosed by the archipelagic baselines, regardless of theirdepth or distance from the coast.599

Waters covered by the straight baseline which are areas which had not previouslybeen considered as such. This has a right of innocent passage.

(3) Archipelagic Sea Lanes Passage

It is the right of foreign ships and aircraft to have continuous, expeditiousand unobstructed passage in sea lanes and air routes through or over the archipelagic

waters and the adjacent territorial sea of the archipelagic state, “intransit between one part ofthehigh seas or an exclusive economic zone.” All ships and aircraft are entitled to therightof archipelagic sea lanes passage.600

The exercise of the rights of navigation and overflight in the normal mode solely forthe purpose of continuous, expeditious and unobstructed transit between one part of thehigh seas or an exclusive economic zone and another part of the high seas or an exclusiveeconomic zone.

c. Internal Waters

These are waters of lakes, rivers and bays landward of the baseline of theterritorial sea. Waters on the landward side of the baseline of the territorial sea alsoform part of the internal waters of the coastal state. However, in the case ofarchipelagic states, waters landward of the baseline other than those of rivers, bays,and lakes, are archipelagic waters.601

All waters602 landwards from the baseline of the territory. Sovereignty over these waters is the same in extent as sovereignty over land, and there is no right of innocentpassage.

d. Territorial Sea

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The belt of the sea located between the coast and internal waters of the coastal stateon the one hand, and the high seas on the other, extending up to 12 nautical miles from thelow-water mark, or in the case of archipelagic states, from the baselines.

e. Exclusive Economic Zone

An area extending not more than 200 nautical miles beyond the baseline. The coastalstate has rights over the economic resource of the sea, seabed and subsoil – but the rightdoes not affect the right of navigation and overflight of other states.

It gives the coastal State sovereign rights over all economic resources of the

sea, sea!bed and subsoil in an area extending not more than 200 nautical milesbeyond the baseline from which the territorial sea is measured.603

f. Continental Shelf

(1) Extended Continental Shelf

Refers to:

a. the seabed and the subsoil of the submarine areas adjacent to the coast butoutside the area of the territorial sea, to a depth of 200 meters or, beyond thatlimit, to where the depth of the superjacent waters admits of the exploitation ofthe natural resources of the said areas; and

b. to the seabed and subsoil of similar areas adjacent to the coasts of islands.

It is part of the continental shelf that lies beyond the 200 nautical miles from thecoastal baselines.

g. Tribunal of the Law of the Sea604

It is an independent judicial body established by the Third United NationsConvention on the Law of the Sea to adjudicate disputes arising out of theinterpretation and application of the Convention. It was established after Ambassador

Arvido Pardo Maltaaddressed the General Assemblyof the United Nations and called for “an effectiveinternational

regime overthe seabed and ocean floor beyond a clearly defined national jurisdiction. Itsseat is in Hamburg, Germany.

ITLOS is composed of 21 independent members elected by the States Parties605 tothe UNCLOS from among persons with recognized competence in the field of the law ofthe sea and representing the principal legal systems of the world. ITLOS has jurisdiction

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over all disputes and all applications submitted to it in accordance with UNCLOS and overall matters specifically provided for in any other agreement which confers jurisdiction on theITLOS.

12. Madrid Protocol and the Paris Convention for the Protection of

Industrial Property

The "Protocol relating to the Madrid Agreement" ("Madrid Protocol") was adoptedin 1989 and entered into force on December 1, 1995. The Madrid Protocol makes theMadrid System more flexible. For instance, it allows an application for internationalregistration to be based upon a pending trademark application filed in the applicant's countryof origin. Also, if the national application on which the international registration is based isrefused, withdrawn or cancelled, the international registration may be converted intonational applications without losing the original filing date or priority date.

The "Paris Convention for the Protection of Industrial Property"606 is the oldest

major international treaty concerning the protection of intellectual property. It was adoptedin 1883 and has been revised several times. The Paris Convention provides for thefollowing:

1. Creation of a legal entity recognized under international law comprised of thefollowing administrative bodies: the World Intellectual Property Organization (WIPO), the

Assembly (which comprises all member nations) and the Executive Committee.

2. National treatment: This means that nationals of any signatory country enjoy in allother signatory countries the advantages that each national law grants to citizens within theirown nations.

3. Convention priority: Any person who has filed a trademark application in one ofthe signatory countries possesses a right to claim that filing date for priority purposes fortrademark applications filed within six months in other signatory countries.

The Paris Convention ensures the nationals of any signatory countrycertain protection of their rights in all other signatory countries. These rights include theprotection of well-known marks, protection of trade names and claims deriving from unfaircompetition.

In some countries the Paris Convention is self-executing, which means that the

Convention becomes enforceable by the signatory's mere accession and no furtherimplementing legislation is required. The Paris Convention allows signatories to concludespecial agreements in the field of protection of intellectual property, as long as theseagreements do not contravene the regulations of the Paris Convention. The most importantspecial agreements in relation to the protection of trademarks are: the Madrid Agreement,the Protocol relating to the Madrid Agreement, the TRIPS Agreement, the Nice Agreement,the Vienna Agreement, the Trademark Law Treaty, and the Madrid Agreement onIndications of Origin

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13. International Environment Law

It is the 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 thefeatures and the products of the natural world and those of human civilization.607

a. Principle 21 of Stockholm Declaration608

This declares that States have

1. The sovereign right to exploit their own resources pursuant to their ownenvironmental policies, and

2. The responsibility to ensure that activities within their jurisdiction or control do

not cause damage to the environment of other States or of areas beyond the limits ofnational jurisdiction.

14. International economic law

International economic law regulates the international economic order or economicrelations among nations. However, the term ‘international economic law’ encompasses alarge number of areas. It is often defined broadly to include a vast array of topics rangingfrom public international law of trade to private international law of trade to certain aspectsof international commercial law and the law of international finance and investment. TheInternational Economic Law Interests Group of the American Society of International Law

includes the following non-exhaustive list of topics within the term ‘international economiclaw’:

(1) International Trade Law, including both the international law of the World TradeOrganization and GATT and domestic trade laws;

(2) International Economic Integration Law, including the law of the EuropeanUnion, NAFTA and Mercosur; International economic law: Section A

(3) Private International Law, including international choice of law, choice of forum,enforcement of judgments and the law of international commerce;

(4) International Business Regulation, including antitrust or competition law,environmental regulation and product safety regulation;

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(5) International Financial Law, including private transactional law, regulatory law,the law of foreign direct investment and international monetary law, including the law of theInternational Monetary Fund and World Bank;

(6) The role of law in development;

(7) International tax law; and

(8) International intellectual property law.

International economic law is based on the traditional principles of international lawsuch as:

_ pacta sunt servanda _ freedom _ sovereign equality

_ reciprocity _ economic sovereignty.

It is also based on modern and evolving principles such as:

_ the duty to co-operate _ permanent sovereignty over natural resources _ preferential treatment for developing countries in general and the least-

developed countries in particular.

Include: Pertinent Supreme Court decisions promulgated up to January 31, 2013



!0!

Reference

Omnibus Election Code

Section 233. When the election returns are delayed, lost or destroyed. - In case its copy ofthe election returns is missing, the board of canvassers shall, by messenger or otherwise, obtain suchmissing election returns from the board of election inspectors concerned, or if said returns have beenlost or destroyed, the board of canvassers, upon prior authority of the Commission, may use any ofthe authentic copies of said election returns or a certified copy of said election returns issued by theCommission, and forthwith direct its representative to investigate the case and immediately reportthe matter to the Commission. The board of canvassers, notwithstanding the fact that not all theelection returns have been received by it, may terminate the canvass and proclaim the candidateselected on the basis of the available election returns if the missing electionreturns will not affect the results of the election.

Section 234. Material defects in the election returns. - If it should clearly appear that somerequisites in form or data had been omitted in the election returns, the board of canvassers shall callfor all the members of the board of election inspectors concerned by the most expeditious means,for the same board to effect the correction: Provided, That in case of the omission in the election



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returns of the name of any candidate and/or his corresponding votes, the board of canvassers shallrequire the board of election inspectors concerned to complete the necessary data in the electionreturns and affix therein their initials: Provided, further, That if the votes omitted in the returnscannot be ascertained by other means except by recounting the ballots, the Commission, aftersatisfying itself that the identity and integrity of the ballot box have not been violated, shall order theboard of election inspectors to open the ballot box, and, also after satisfying itself that the integrity ofthe ballots therein has been duly preserved, order the board of election inspectors to count the votesfor the candidate whose votes have been omitted with notice thereof to all candidates for theposition involved and thereafter complete the returns. The right of a candidate to avail of thisprovision shall not be lost or affected by the fact that an election protest is subsequently filed by anyof the candidates.

Section 235. When election returns appear to be tampered with or falsified. - If the electionreturns submitted to the board of canvassers appear to be tampered with, altered or falsified afterthey have left the hands of the board of election inspectors, or otherwise not authentic, or wereprepared by the board of election inspectors under duress, force, intimidation, or prepared bypersons other than the member of the board of election inspectors, the board of canvassers shall usethe other copies of said election returns and, if necessary, the copy inside the ballot box which uponprevious authority given by the Commission may be retrieved in accordance with Section 220 hereof.If the other copies of the returns are likewise tampered with, altered, falsified, not authentic, preparedunder duress, force, intimidation, or prepared by persons other than the members of the board ofelection inspectors, the board of canvassers or any candidate affectedshall bring the matter to the attention of the Commission. The Commission shall then, after givingnotice to all candidates concerned and after satisfying itself that nothing in the ballot box indicatethat its identity and integrity have been violated, order the opening of the ballot box and, likewiseafter satisfying itself that the integrity of the ballots therein has been dulypreserved shall order the board of election inspectors to recount the votes of the candidates affectedand prepare a new return which shall then be used by the board of canvassers as basis of the canvass.

Section 236. Discrepancies in election returns. - In case it appears to the board of canvassers

that there exists discrepancies in the other authentic copies of the election returns from a pollingplace or discrepancies in the votes of any candidate in words and figures in the same return, and ineither case the difference affects the results of the election, the Commission, upon motion of theboard of canvassers or any candidate affected and after due notice to all candidates concerned, shallproceed summarily to determine whether the integrity of the ballot box had been preserved, andonce satisfied thereof shall order the opening of the ballot box to recount the votes cast in thepolling place solely for the purpose of determining the true result of the count of votes of thecandidates concerned.

Diplomatic and Consular Law

Vienna Convention on Diplomatic Relations (April 18, 1961)

Article 1

For the purpose of the present Convention, the following expressions shall have the meanings

hereunder assigned to them:

(a) The “head of the mission” is the person charged by the sending State with the duty of acting

in that capacity;

(b) The “members of the mission” are the head of the mission and the members of the staff of

the mission;



!06

(c) The “members of the staff of the mission” are the members of the diplomatic staff, of

the administrative and technical staff and of the service staff of the mission;

(d) The “members of the diplomatic staff” are the members of the staff of the mission

having diplomatic rank;

(e) A “diplomatic agent” is the head of the mission or a member of the diplomatic staff ofthe mission;

(f) The “members of the administrative and technical staff” are the members of the staff of

the mission employed in the administrative and technical service of the mission;

(g) The “members of the service staff” are the members of the staff of the mission in the

domestic service of the mission;

(h) A “private servant” is a person who is in the domestic service of a member of the mission

and who is not an employee of the sending State;

(i) The “premises of the mission” are the buildings or parts of buildings and the land

ancillary thereto, irrespective of ownership, used for the purposes of the mission including the

residence of the head of the mission.

Article 2

The establishment of diplomatic relations between States, and of permanent diplomatic missions, takes

place by mutual consent.

Article 3

1. The functions of a diplomatic mission consist, inter alia, in:

(a) Representing the sending State in the receiving State;

(b) Protecting in the receiving State the interests of the sending State and of its nationals, within

the limits permitted by international law;

(c) Negotiating with the Government of the receiving State;

(d) Ascertaining by all lawful means conditions and developments in the receiving State,

and reporting thereon to the Government of the sending State;

(e) Promoting friendly relations between the sending State and the receiving State, and

developing their economic, cultural and scientific relations.

2. Nothing in the present Convention shall be construed as preventing the performance of consular

functions by a diplomatic mission.

Article 4

1. The sending State must make certain that the agrément of the receiving State has been given for the

person it proposes to accredit as head of the mission to that State.

2. The receiving State is not obliged to give reasons to the sending State for a refusal of agrément.

Article 5

1. The sending State may, after it has given due notification to the receiving States concerned,

accredit a head of mission or assign any member of the diplomatic staff, as the case may be, to more

than one State, unless there is express objection by any of the receiving States.





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(c) The arrival and final departure of private servants in the employ of persons referred to in

subparagraph (a) of this paragraph and, where appropriate, the fact that they are leaving the employ of

such persons;

(d) The engagement and discharge of persons resident in the receiving State as members of

the mission or private servants entitled to privileges and immunities.

2. Where possible, prior notification of arrival and final departure shall also be given.

Article 11

1. In the absence of specific agreement as to the size of the mission, the receiving State may

require that the size of a mission be kept within limits considered by it to be reasonable and

normal, having regard to circumstances and conditions in the receiving State and to the needs of the

particular mission.

2. The receiving State may equally, within similar bounds and on a non-discriminatory basis, refuse

to accept officials of a particular category.

Article 12

The sending State may not, without the prior express consent of the receiving State, establish

offices forming part of the mission in localities other than those in which the mission itself

is established.

Article 13

1. The head of the mission is considered as having taken up his functions in the receiving State either

when he has presented his credentials or when he has notified his arrival and a true copy of his

credentials has been presented to the Ministry for Foreign Affairs of the receiving State, or such other

ministry as may be agreed, in accordance with the practice prevailing in the receiving State which shall

be applied in a uniform manner.

2. The order of presentation of credentials or of a true copy thereof will be determined by the date andtime of the arrival of the head of the mission.

Article 14

1. Heads of mission are divided into three classes, namely:

(a) That of ambassadors or nuncios accredited to Heads of State, and other heads of mission

of equivalent rank;

(b) That of envoys, ministers and internuncios accredited to Heads of State; (c) That of chargés

d’affaires accredited to Ministers for Foreign Affairs.

2. Except as concerns precedence and etiquette, there shall be no differentiation between heads of

mission by reason of their class.

Article 15

The class to which the heads of their missions are to be assigned shall be agreed between States.

Article 16

1. Heads of mission shall take precedence in their respective classes in the order of the date and time of

taking up their functions in accordance with article 13.



!00

2. Alterations in the credentials of a head of mission not involving any change of class shall not affect

his precedence.

3. This article is without prejudice to any practice accepted by the receiving State regarding the

precedence of the representative of the Holy See.

Article 17

The precedence of the members of the diplomatic staff of the mission shall be notified by the head of

the mission to the Ministry for Foreign Affairs or such other ministry as may be agreed.

Article 18

The procedure to be observed in each State for the reception of heads of mission shall be uniform in

respect of each class.

Article 19

1. If the post of head of the mission is vacant, or if the head of the mission is unable to perform his

functions a chargé d’affaires ad interim shall act provisionally as head of the mission. The name of the

chargé d’affaires ad interim shall be notified, either by the head of the mission or, in case he isunable to do so, by the Ministry for Foreign Affairs of the sending State to the Ministry for

Foreign Affairs of the receiving State or such other ministry as may be agreed.

2. In cases where no member of the diplomatic staff of the mission is present in the receiving

State, a member of the administrative and technical staff may, with the consent of the receiving State,

be designated by the sending State to be in charge of the current administrative affairs of the mission.

Article 20

The mission and its head shall have the right to use the flag and emblem of the sending State on the

premises of the mission, including the residence of the head of the mission, and on his means of

transport.

Article 21

1. The receiving State shall either facilitate the acquisition on its territory, in accordance with its laws,

by the sending State of premises necessary for its mission or assist the latter in obtaining

accommodation in some other way.

2. It shall also, where necessary, assist missions in obtaining suitable accommodation for their

members.

Article 22

1. The premises of the mission shall be inviolable. The agents of the receiving State may not enter them,

except with the consent of the head of the mission.

2. The receiving State is under a special duty to take all appropriate steps to protect the premises of the

mission against any intrusion or damage and to prevent any disturbance of the peace of the

mission or impairment of its dignity.

3. The premises of the mission, their furnishings and other property thereon and the means of

transport of the mission shall be immune from search, requisition, attachment or execution.

Article 23



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1. The sending State and the head of the mission shall be exempt from all national, regional or

municipal dues and taxes in respect of the premises of the mission, whether owned or leased, other than

such as represent payment for specific services rendered.

2. The exemption from taxation referred to in this article shall not apply to such dues and taxes

payable under the law of the receiving State by persons contracting with the sending State or the head of

the mission.

Article 24

The archives and documents of the mission shall be inviolable at any time and wherever they maybe.

Article 25

The receiving State shall accord full facilities for the performance of the functions of the mission.

Article 26

Subject to its laws and regulations concerning zones entry into which is prohibited or regulated forreasons of national security, the receiving State shall ensure to all members of the mission freedom of

movement and travel in its territory.

Article 27

1. The receiving State shall permit and protect free communication on the part of the mission for all

official purposes. In communicating with the Government and the other missions and consulates of the

sending State, wherever situated, the mission may employ all appropriate means, including

diplomatic couriers and messages in code or cipher. However, the mission may install and use a wireless

transmitter only with the consent of the receiving State.

2. The official correspondence of the mission shall be inviolable. Official correspondence means all

correspondence relating to the mission and its functions.

3. The diplomatic bag shall not be opened or detained.

4. The packages constituting the diplomatic bag must bear visible external marks of their character and

may contain only diplomatic documents or articles intended for official use.

5. The diplomatic courier, who shall be provided with an official document indicating his status and

the number of packages constituting the diplomatic bag, shall be protected by the receiving State in the

performance of his functions. He shall enjoy person inviolability and shall not be liable to any form of

arrest or detention.

6. The sending State or the mission may designate diplomatic couriers ad hoc. In such cases the

provisions of paragraph 5 of this article shall also apply, except that the immunities therein mentioned

shall cease to apply when such a courier has delivered to the consignee the diplomatic bag in his charge.

7. A diplomatic bag may be entrusted to the captain of a commercial aircraft scheduled to land at an

authorized port of entry. He shall be provided with an official document indicating the number of

packages constituting the bag but he shall not be considered to be a diplomatic courier. The mission may

send one of its members to take possession of the diplomatic bag directly and freely from the captain of

the aircraft.

Article 28



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The fees and charges levied by the mission in the course of its official duties shall be exempt from all

dues and taxes.

Article 29

The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or

detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.

Article 30

1. The private residence of a diplomatic agent shall enjoy the same inviolability and protection as the

premises of the mission.

2. His papers, correspondence and, except as provided in paragraph 3 of article 31, his property, shall

likewise enjoy inviolability.

Article 31

1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He

shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:

(a) A real action relating to private immovable property situated in the territory of the receiving State,

unless he holds it on behalf of the sending State for the purposes of the mission;

(b) An action relating to succession in which the diplomatic agent is involved as

executor, administrator, heir or legatee as a private person and not on behalf of the sending State;

(c) An action relating to any professional or commercial activity exercised by the diplomatic agent

in the receiving State outside his official functions.

2. A diplomatic agent is not obliged to give evidence as a witness.

3. No measures of execution may be taken in respect of a diplomatic agent except in the cases

coming under subparagraphs (a), (b) and (c) of paragraph 1 of this article, and provided that the

measures concerned can be taken without infringing the inviolability of his person or of his residence.

4. The immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him

from the jurisdiction of the sending State.

Article 32

1. The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under

article 37 may be waived by the sending State.

2. Waiver must always be express.

3. The initiation of proceedings by a diplomatic agent or by a person enjoying immunity from jurisdiction under article 37 shall preclude him from invoking immunity from jurisdiction in respect of

any counterclaim directly connected with the principal claim.

4. Waiver of immunity from jurisdiction in respect of civil or administrative proceedings shall not be

held to imply waiver of immunity in respect of the execution of the judgement, for which a separate

waiver shall be necessary.

Article 33



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1. Subject to the provisions of paragraph 3 of this article, a diplomatic agent shall with respect to

services rendered for the sending State be exempt from social security provisions which may be in force

in the receiving State.

2. The exemption provided for in paragraph 1 of this article shall also apply to private servants who

are in the sole employ of a diplomatic agent, on condition:

(a) That they are not nationals of or permanently resident in the receiving State; and

(b) That they are covered by the social security provisions which may be in force in the sending

State or a third State.

3. A diplomatic agent who employs persons to whom the exemption provided for in paragraph 2 of this

article does not apply shall observe the obligations which the social security provisions of the

receiving State impose upon employers.

4. The exemption provided for in paragraphs 1 and 2 of this article shall not preclude voluntary

participation in the social security system of the receiving State provided that such participation

is permitted by that State.

5. The provisions of this article shall not affect bilateral or multilateral agreements concerning socialsecurity concluded previously and shall not prevent the conclusion of such agreements in the

future.

Article 34

A diplomatic agent shall be exempt from all dues and taxes, personal or real, national, regional or

municipal, except:

(a) Indirect taxes of a kind which are normally incorporated in the price of goods or services;

(b) Dues and taxes on private immovable property situated in the territory of the receiving

State, unless he holds it on behalf of the sending State for the purposes of the mission;

(c) Estate, succession or inheritance duties levied by the receiving State, subject to the provisions

of paragraph 4 of article 39;

(d) Dues and taxes on private income having its source in the receiving State and capital taxes on

investments made in commercial undertakings in the receiving State;

(e) Charges levied for specific services rendered;

(f) Registration, court or record fees, mortgage dues and stamp duty, with respect to

immovable property, subject to the provisions of article 23.

Article 35

The receiving State shall exempt diplomatic agents from all personal services, from all publicservice of any kind whatsoever, and from military obligations such as those connected

with requisitioning, military contributions and billeting.

Article 36

1. The receiving State shall, in accordance with such laws and regulations as it may adopt, permit entry

of and grant exemption from all customs duties, taxes, and related charges other than charges for

storage, cartage and similar services, on

(a) Articles for the official use of the mission;



!34

(b) Articles for the personal use of a diplomatic agent or members of his family forming part of his

household, including articles intended for his establishment.

2. The personal baggage of a diplomatic agent shall be exempt from inspection, unless there are

serious grounds for presuming that it contains articles not covered by the exemptions mentioned

in paragraph 1 of this article, or articles the import or export of which is prohibited by the law or

controlled by the quarantine regulations of the receiving State. Such inspection shall be conductedonly in the presence of the diplomatic agent or of his authorized representative.

Article 37

1. The members of the family of a diplomatic agent forming part of his household shall, if they are not

nationals of the receiving State, enjoy the privileges and immunities specified in articles 29 to 36.

2. Members of the administrative and technical staff of the mission, together with members of

their families forming part of their respective households, shall, if they are not nationals of

or permanently resident in the receiving State, enjoy the privileges and immunities specified in

articles 29 to 35, except that the immunity from civil and administrative jurisdiction of the receiving

State specified in paragraph 1 of article 31 shall not extend to acts performed outside the course of their

duties. They shall also enjoy the privileges specified in article 36, paragraph 1, in respect of articles

imported at the time of first installation.

3. Members of the service staff of the mission who are not nationals of or permanently resident in the

receiving State shall enjoy immunity in respect of acts performed in the course of their duties,

exemption from dues and taxes on the emoluments they receive by reason of their employment and

the exemption contained in article 33.

4. Private servants of members of the mission shall, if they are not nationals of or permanently

resident in the receiving State, be exempt from dues and taxes on the emoluments they receive by reason

of their employment. In other respects, they may enjoy privileges and immunities only to the

extent admitted by the receiving State. However, the receiving State must exercise its jurisdiction

over those persons in such a manner as not to interfere unduly with the performance of the functions of

the mission.

Article 38

1. Except insofar as additional privileges and immunities may be granted by the receiving State, a

diplomatic agent who is a national of or permanently resident in that State shall enjoy only immunity

from jurisdiction, and inviolability, in respect of official acts performed in the exercise of his functions.

2. Other members of the staff of the mission and private servants who are nationals of or

permanently resident in the receiving State shall enjoy privileges and immunities only to the

extent admitted by the receiving State. However, the receiving State must exercise its jurisdiction

over those persons in such a manner as not to interfere unduly with the performance of the functions of

the mission.

Article 39

1. Every person entitled to privileges and immunities shall enjoy them from the moment he enters the

territory of the receiving State on proceeding to take up his post or, if already in its territory, from the

moment when his appointment is notified to the Ministry for Foreign Affairs or such other ministry as

may be agreed.

2. When the functions of a person enjoying privileges and immunities have come to an end, such

privileges and immunities shall normally cease at the moment when he leaves the country, or on

expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed



!3!

conflict. However, with respect to acts performed by such a person in the exercise of his functions as a

member of the mission, immunity shall continue to subsist.

3. In case of the death of a member of the mission, the members of his family shall continue to enjoy

the privileges and immunities to which they are entitled until the expiry of a reasonable period in

which to leave the country.

4. In the event of the death of a member of the mission not a national of or permanently resident in the

receiving State or a member of his family forming part of his household, the receiving State shall

permit the withdrawal of the movable property of the deceased, with the exception of any

property acquired in the country the export of which was prohibited at the time of his death. Estate,

succession and inheritance duties shall not be levied on movable property the presence of which in

the receiving State was due solely to the presence there of the deceased as a member of the mission or as

a member of the family of a member of the mission.

Article 40

1. If a diplomatic agent passes through or is in the territory of a third State, which has granted him a

passport visa if such visa was necessary, while proceeding to take up or to return to his post, or when

returning to his own country, the third State shall accord him inviolability and such other immunities as

may be required to ensure his transit or return. The same shall apply in the case of any members of his

family enjoying privileges or immunities who are accompanying the diplomatic agent, or

travelling separately to join him or to return to their country.

2. In circumstances similar to those specified in paragraph 1 of this article, third States shall not hinder

the passage of members of the administrative and technical or service staff of a mission, and of

members of their families, through their territories

3. Third States shall accord to official correspondence and other official communications in

transit, including messages in code or cipher, the same freedom and protection as is accorded by the

receiving State. They shall accord to diplomatic couriers, who have been granted a passport visa if such

visa was necessary, and diplomatic bags in transit, the same inviolability and protection as the receiving

State is bound to accord.

4. The obligations of third States under paragraphs 1, 2 and 3 of this article shall also apply to the persons

mentioned respectively in those paragraphs, and to official communications and diplomatic bags,

whose presence in the territory of the third State is due to force majeure.

Article 41

1. Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such

privileges and immunities to respect the laws and regulations of the receiving State. They also have

a duty not to interfere in the internal affairs of that State.

2. All official business with the receiving State entrusted to the mission by the sending State shall be

conducted with or through the Ministry for Foreign Affairs of the receiving State or such other

ministry as may be agreed.

3. The premises of the mission must not be used in any manner incompatible with the functions of the

mission as laid down in the present Convention or by other rules of general international law or by any

special agreements in force between the sending and the receiving State.

Article 42

A diplomatic agent shall not in the receiving State practise for personal profit any professional or

commercial activity.

Article 43



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The function of a diplomatic agent comes to an end, inter alia:

(a) On notification by the sending State to the receiving State that the function of the

diplomatic agent has come to an end;

(b) On notification by the receiving State to the sending State that, in accordance with paragraph 2 of

article 9, it refuses to recognize the diplomatic agent as a member of the mission.

Article 44

The receiving State must, even in case of armed conflict, grant facilities in order to enable

persons enjoying privileges and immunities, other than nationals of the receiving State, and members of

the families of such persons irrespective of their nationality, to leave at the earliest possible moment. It

must, in particular, in case of need, place at their disposal the necessary means of transport for

themselves and their property.

Article 45

If diplomatic relations are broken off between two States, or if a mission is permanently or

temporarily recalled:

(a) The receiving State must, even in case of armed conflict, respect and protect the premises of

the mission, together with its property and archives;

(b) The sending State may entrust the custody of the premises of the mission, together with

its property and archives, to a third State acceptable to the receiving State;

(c) The sending State may entrust the protection of its interests and those of its nationals to a

third

State acceptable to the receiving State.

Article 46

A sending State may with the prior consent of a receiving State, and at the request of a third State not

represented in the receiving State, undertake the temporary protection of the interests of the third

State and of its nationals.

Article 47

1. In the application of the provisions of the present Convention, the receiving State shall not

discriminate as between States.

2. However, discrimination shall not be regarded as taking place:

(a) Where the receiving State applies any of the provisions of the present Convention

restrictively because of a restrictive application of that provision to its mission in the sending State;

(b) Where by custom or agreement States extend to each other more favourable treatment than

is required by the provisions of the present Convention.

Article 48

The present Convention shall be open for signature by all States Members of the United Nations or of

any of the specialized agencies Parties to the Statute of the International Court of Justice, and by any

other State invited by the General Assembly of the United Nations to become a Party to the



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Convention, as follows: until 31 October 1961 at the Federal Ministry for Foreign Affairs of Austria and

subsequently, until 31 March 1962, at the United Nations Headquarters in New York.

Article 49

The present Convention is subject to ratification. The instruments of ratification shall be

deposited with the Secretary-General of the United Nations.

Article 50

The present Convention shall remain open for accession by any State belonging to any of the four

categories mentioned in article 48. The instruments of accession shall be deposited with the Secretary-

General of the United Nations.

Article 51

1. The present Convention shall enter into force on the thirtieth day following the date of deposit of the

twenty-second instrument of ratification or accession with the Secretary-General of the United

Nations.

2. For each State ratifying or acceding to the Convention after the deposit of the twenty-secondinstrument of ratification or accession, the Convention shall enter into force on the thirtieth day

after deposit by such State of its instrument of ratification or accession.

Article 52

The Secretary-General of the United Nations shall inform all States belonging to any of the four

categories mentioned in article 48:

(a) Of signatures to the present Convention and of the deposit of instruments of ratification or

accession, in accordance with articles 48, 49 and 50;

(b) Of the date on which the present Convention will enter into force, in accordance with article 51.

Article 53

The original of the present Convention, of which the Chinese, English, French, Russian and

Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United

Nations, who shall send certified copies thereof to all States belonging to any of the four categories

mentioned in article 48.

Vienna Convention on Consular Relations (April 24, 1963)

Article 1

Definitions

1 .For the purposes of the present Convention, the follow in g expressions shall have the meanings

Here under assigned to them:

(a ) “consular post” means any consulate-general, consulate, vice-consulate or consular agency;

(b ) “consular district” means the area assigned to a consular post for the exercise of consular

functions;

(c) “head of consular post” means the person charged with the duty of acting in that capacity;





!3=

4 .The consent of the receiving State shall also be required if a consulate-general or a consulate

desires to open a vice-consulate or a consular agency in a locality o other than that in which it is

itself established.

5 .The prior express consent of the receiving State shall also be required for the opening of an

office forming part of an existing consular post elsewhere ere than at the seat thereof.

Article 5

Consular functions consist in:

(a ) protecting in the receiving State the interests of the sending State and of its nationals, both

individuals and bodies corporate, within the limits permitted by international law;

(b ) furthering the development of commercial, economic, cultural and scientific relations between the

sending g State and the receiving State and otherwise promoting friendly relations between them in

accordance with the provisions of the present Convention;

(c) ascertaining by all lawful means conditions and developments in the commercial, economic,

cultural and scientific life of the receiving State, reporting thereon to the Government of thesending State and giving information to persons interested;

(d ) issuing passports and travel documents to nationals of the sending State, and visas or appropriate

documents to persons wishing to travel to the sending State;

(e) helping and assisting nationals, both individuals and bodies corporate, of the sending State;

(f) acting as notary and civil registrar and in capacities of a similar kind, and performing certain

functions of an administrative nature, provided that there is nothing contrary thereto in the laws

and regulations of the receiving State;

(g ) safeguarding the interests of nationals, both individuals and bodies corporate, of the sending

States in cases of succession mortis causa in the territory of the receiving State, in accordance withthe laws and regulations of the receiving State;

(h ) safeguarding, within the limits imposed by the laws and regulations of the receiving State, the

interests of minors and other persons lacking full capacity who are nationals of the sending State,

particularly where any guardianship or trusteeship is required with respect to such persons;

(i) subject to the practices and procedures obtaining in the receiving State, representing or arranging

appropriate representation for nationals of the sending State before the tribunals and other authorities

of the receiving State, for the purpose of obtaining, in accordance with the laws and regulations of

the receiving State, provisional measures for the preservation of the rights and interests of these

nationals, where, because of absence or any other reason, such nationals are unable at the proper

time to assume the defence of their rights and interests;

(j) transmitting judicial and extrajudicial documents or executing letters rogatory or commissions totake evidence for the courts of the sending State in accordance with in international agreements in force

or, in the absence of such international agreements, in any other manner compatible with the laws

and regulations of the receiving State;

(k) exercising rights of supervision and inspection provided for in the laws and regulations of the

sending State in respect of vessels having the nationality of the sending State, and of aircraft registered

in that State, and in respect of their crews ;

(l) extending assistance to vessels and aircraft mentioned in subparagraph (k) of this article, and to

their crews, taking statements regarding the voyage of a vessel, examining and stamping the ship’s



!30

papers , and, without prejudice to the powers of the authorities of the receiving State, conducting

investigations into any incidents which occurred during the voyage, and settling disputes of any

kind between the master, the officers and the seamen insofar as this may be authorized by the

laws and regulations of the sending State;

(m ) performing any other functions entrusted to a consular post by the sending State which are

not prohibited by the laws and regulations of the receiving State or to which no o objection istaken by the receiving State or which are referred to in the international agreements in force

between the sending State and the receiving State.

Article 6

A consular officer may, in special circumstances, with the consent of the receiving State, exercise his

functions outside his consular district.

Article 7

The sending State may, after notifying the States concerned, entrust a consular post established in a

particular State with the exercise of consular functions in another State, unless there is express

objection by one of the States concerned.

Article 8

Upon appropriate notification to the receiving State, a consular post of the sending State may,

unless the receiving State objects, exercise consular functions in the receiving State on behalf of a

third State.

Article 9

1 .Heads of consular posts are divided into four classes, namely

(a ) consuls-general;

(b ) consuls;

(c) vice-consuls;

(d ) consular agents.

2 .Paragraph 1 of this article in no way restricts the right of any of the Contracting Parties to fix the

designation of consular officers other than the heads of consular posts.

Article 10

1 .Heads of consular posts are appointed by the sending State and are admitted to the exercise oftheir functions by the receiving State.

2 .Subject to the provisions of the present Convention , the formalities for the appointment and for the

admission of the head o f a consular post are determined by the laws, regulations an d usages of the

sending State and of the receiving State respectively.

Article 11

1 .The head of a consular post shall be provided by the sending State with a document, in the form of a

commission or similar instrument, made out for each appointment, certifying his capacity and



!33

showing, as a general rule, his full name, his category and class, the consular district and the seat of the

consular post.

2 .The sending State shall transmit the commission or similar instrument through the diplomatic or other

appropriate channel to the Government of the State in whose territory the head of a consular post is to

exercise his functions.

3 .If the receiving State agrees, the sending State may, instead of a commission or similar

instrument, send to the receiving State a notification containing the particulars required by paragraph

1 of this article.

Article 12

1 .The head of a consular post is admitted to the exercise of his functions by an authorization from the

receiving State termed an exequatur, whatever the form of this authorization.

2 .A State which refused to grant an exequatur is not obliged to give to the sending State reasons for

such refusal.

3 .Subject to the provisions of articles 13 and 15, the head of a consular post shall not enter upon his

duties until he has received an exequatur.

Article 13

Pending delivery of the exequatur, the head of a consular post may be admitted on a provisional

basis to the exercise of his functions. In that case, the provisions o f the present Convention shall apply.

Article 14

As soon as the head of a consular post is admitted even provisionally to the exercise of his

functions, the receiving State shall immediately notify the competent authorities of the consular

district.

It shall also ensure that the necessary measures are taken to enable the head of a consular post tocarry out the duties of his office and to have the benefit of the provisions of the present Convention.

Article 15

1 .If the head of a consular post is unable to carry out his functions or the position of head of

consular post is vacant, an acting head of post may act provisionally as head of the consular post.

2 .The full name of the acting head of post shall be notified either by the diplomatic mission of the

sending State or, if that State has no such mission in the receiving State, by the head of the

consular post, or, if he is unable to do so, by any competent authority of the s ending State, to the

Ministry for Foreign Affairs of the receiving State or to the authority designated by that Ministry.

As a general rule, this notification shall be given in advance. The receiving State may make the

admission as actin g head of post of a person who is neither a diplomatic agent nor a consular

officer of the sending State in the receiving State conditional on its consent.

3 .The competent authorities of the receiving State shall afford assistance and protection to the

acting head of post. While he is in charge of the post, the provisions of the present Convention

shall apply to him on the same basis as to the head of the consular post concerned. The receiving

State shall not, however, be obliged to grant to an acting head of post any facility, privilege or immunity

which the head of the consular post enjoys only subject to conditions not fulfilled by the acting head of

post.

4 .When, in the circumstances referred to in paragraph 1 of this article, a member of the

diplomatic staff of the diplomatic mission of the sending State in the receiving State is designated by the



!31

sending State as an acting head of post, he shall, if the receiving State does not object thereto, continue

to enjoy diplomatic privileges and immunities.

Article 16

1 .Heads of consular posts shall rank in each class according to the date of the gran t of the

exequatur.

2 .If, however, the head of a consular post before obtaining the exequatur is admitted to the

exercise of his functions provisionally, h is precedence shall be determined according to the date of

the provisional admission; this precedence shall be maintained after the granting of the exequatur.

3 .The order of precedence as between two or more head s of consular posts who obtained the

exequatur or provisional admission on the same date shall be determined according to the dates

on which their commissions or similar instruments or the notifications referred to in paragraph 3 of

article 11 were presented to the receiving State.

4 .Acting heads of posts shall rank after all heads of consular posts and, as between themselves,

they shall rank according to the dates on which they assumed their functions as acting heads of posts as

indicated in the notifications given under paragraph 2 of article 15 .

5 .Honorary consular officers who are heads of consular posts shall rank in each class after career heads

of consular posts, in the order and according to the rules laid down in the foregoing paragraphs .

6 .Heads of consular posts s hall have precedence over consular officers not having that status.

Article 17

1 .In a State where the sending State has no diplomatic mission and is not represented by a

diplomatic mission of a third State, a consular officer may, with the consent of the receiving State,

and without affecting his consular status, be authorized to perform diplomatic acts. The performance of

such acts by a consular officer shall not confer upon him any right to claim diplomatic privileges

and immunities.

2 .A consular officer may, after notification addressed to the receiving State, act as representative of

the sending State to any intergovernmental organization. When so acting, he shall be entitled to enjoy

any privileges and immunities accorded to such a representative by customary international law or

by international agreements; however, in respect of the performance by him of any consular

function, he shall not be entitled to any greater immunity from jurisdiction than that to which a

consular officer is entitled under the present Convention.

Article 18

Two or more States may, with the consent of the receiving State, appoint the same person as a

consular officer in that State.

Article 19

1 .Subject to the provisions of articles 20, 22 and 23, the sending State may freely appoint the

members of the consular staff.

2 .The full name, category an d class of all consular officers, other than the head of a consular post, shall be

notified by the sending State to the receiving State in sufficient time for the receiving State, if it so wishes,

to exercise its rights under paragraph 3 of article 23.

3 .The sending State may, if required by its laws and regulations, request the receiving State to

grant an exequatur to a consular officer other than the head of a consular post.





!14

(c) the arrival and final departure of members of the private staff and, where appropriate, the

termination of their service as such;

(d ) the engagement and discharge of persons resident in the receiving State as members of a consular

post or as members of the private staff entitled to privileges and immunities.

2 .When possible, prior notification of arrival and final departure shall also be given.

Article 25

The functions of a member of a consular post shall come to an end, inter alia:

(a ) on notification by the sending State to the receiving State that his functions have come to an end;

(b ) on withdrawal of the exequatur;

(c) on notification by the receiving State to the sending State that the receiving State has ceased to

consider him as a member of the consular staff.

Article 26

The receiving State shall, even in case of armed conflict, grant to members of the consular post and

members of the private staff, other than nationals of the receiving State, and to members of their

families forming part of their households irrespective of nationality, the necessary time and facilities

to enable them to prepare their departure and to leave at the earliest possible moment after the

termination of the functions of the members concerned. In particular, it shall, in case of need, place at

their disposal the necessary means of transport for themselves and their property other than property

acquired in the receiving State the export of which is prohibited at the time of departure.

Article 27

1 .In the event of the severance of consular relations between two States:

(a ) the receiving State shall, even in case of armed conflict, respect and protect the consular premises,

together with the property of the consular post and the consular archives;

(b ) the sending State may entrust the custody of the consular premises, together with the property

contained therein and the consular archives, to a third State acceptable to the receiving State;

(c) the sending State may entrust the protection of its interests and those of its nationals to a third

2 .In the event of the temporary or permanent closure of a consular post, the provisions ofsubparagraph (a) of paragraph 1 of this article shall apply. In addition,

(a ) if the s ending State, although not represented in the receiving State by a diplomatic mission, has

another consular post in the territory of that State, that consular post may be entrusted with the

custody of the premises of the consular post which has been closed, together with the property contained

therein and the consular archives, and, with the consent of the receiving State, with the exercise

of consular functions in the district of that consular post; or

(b ) if the sending State has no diplomatic mission and no other consular post in the receiving State,

the provisions of subparagraphs (b) and (c) of paragraph 1 of this article sh all apply.



!1!

Article 28

The receiving State shall accord full facilities for the performance of the functions of the consular post.

Article 29

1 .The sending State shall have the right to the u se of its national flag and coat-of-arms in the

receiving State in accordance with the provisions of this article.

2 .The national flag of the sending State may be flow n and its coat-of-arms displayed on the

building occupied by the consular post and at the entrance door thereof, on the residence of the head of

the consular post and on his means of trans port when used on official business.

3 .In the exercise of the right accorded by this article regard shall be had to the laws, regulations and

usages of the receiving State.

Article 30

1 .The receiving State shall either facilitate the acquisition on its territory, in accordance with its

laws and regulations, by the sending State of premises necessary for its consular post or assist the latter in

obtaining accommodation in some other way.

2 .It shall also, where necessary, assist the consular post in obtaining suitable accommodation for its

members.

Article 31

1 .Consular premises shall be inviolable to the extent provided in this article.

2 .The authorities of the receiving State shall not enter that part of the consular premises which is used

exclusively for the purpose of the work of the consular post except with the consent of the head of the

consular post or of his designee or of the head of the diplomatic mission of the sending State. The

consent of the head of the consular post may, however, be assumed in case of fire or other

disaster requiring prompt protective action.

3 .Subject to the provisions of paragraph 2 of this article, the receiving State is under a special

duty to take all appropriate steps to protect the consular premises against any intrusion or damage and to

prevent any disturbance of the peace of the consular post or impairment of its dignity.

4 .The consular premises, their furnishings, the property of the consular post and its means of

transport shall be immune from any form of requisition for purposes of national defence or public utility.

If expropriation is necessary for such purposes, all possible steps shall be taken to avoid impeding

the performance of consular functions, and prompt, adequate and effective compensation shall be paid to

the sending State.

Article 32

1 .Consular premises and the residence of the career head of consular post of which the sending

State or any person acting on its behalf is the owner or lessee shall be exempt from all national, regional

or municipal dues and taxes whatsoever, other than such as represent payment for specific services

rendered.

2 .The exemption from taxation referred to paragraph 1 of this article shall not apply to such dues and

taxes if, under the law of the receiving State, they are payable by the person who contracted with the

sending State or with the person acting on its behalf.

Article 33



!15

The consular archives and documents shall be inviolable at all times and wherever they may be.

Article 34

Subject to its laws and regulations concerning zones entry into which is prohibited or regulated for

reasons of nation al security, the receiving State shall ensure freedom of movement and travel in its

territory to all members of the consular post.

Article 35

1 .The receiving State shall permit and protect freedom of communication on the part of the

consular post for all official purposes. In communicating with the Government, the diplomatic

missions and other consular posts , wherever situated, of the sending State, the consular post may

employ all appropriate means, including diplomatic or consular couriers, diplomatic or consular bags

and messages in code or cipher. However, the consular post may install and use a wireless

transmitter only with the consent of the receiving State.

2 .The official correspondence of the consular post shall be inviolable. Official correspondence

means all correspondence relating to the consular post and its functions.

3 .The consular bag shall be neither opened nor detained. Nevertheless, if the competent authoritiesof the receiving State have serious reason to believe that the bag contains something other than the

correspondence, documents or articles referred to in paragraph 4 of this article, they may request

that the bag be opened in their presence by an authorized representative of the sending State. If this

request is refused by the authorities of the sending State, the bag shall be returned to its place of

origin.

4 .The packages constituting the consular bag shall bear visible external marks of their character and

may contain only official correspondence and documents or articles intended exclusively for official use.

5 .The consular courier shall be provided with an official document indicating his status and the

number of packages constituting the consular bag. Except with the consent of the receiving State

he shall be neither a national of the receiving State, nor, unless he is a national of the s ending

State, a permanent resident of the receiving State. In the performance of his functions he shall be protected by the receiving State. He shall enjoy personal inviolability and shall not be liable to any

form of arrest or detention.

6 .The sending State, its diplomatic miss ion s and its consular posts may designate consular

couriers ad hoc. In such cases the provisions of paragraph 5 of this article shall also apply except

that the immunities therein mentioned shall cease to apply when such a courier has delivered to

the consignee the consular bag in his charge.

7 .A consular bag may be entrusted to the captain of a ship or of a commercial aircraft scheduled to

land at an authorized port of entry. He shall be provided with an official document indicating the

number of packages constituting the bag, but he shall not be considered to be a consular courier.

By arrangement with the appropriate local authorities, the consular post may send one of its

members to take possession of the bag directly and freely from the captain of the ship or of the aircraft.

Article 36

1 .With a view to facilitating the exercise of consular functions relating to nationals of the sending State:

(a ) consular officers shall be free to communicate with nationals of the sending State and to have

access to them. Nationals of the sending State shall have the same freedom with respect to

communication with and access to consular officers of the sending State;

(b ) if he so requests, the competent authorities of the receiving State shall, without delay, inform the

consular post of the sending State if, within its consular district, a national of that State is arrested



!16

or committed to prison or to custody pending trial or is detained in any other manner. Any

communication addressed to the consular post by the person arrested, in prison, custody or detention

shall be forwarded by the said authorities without delay. The said authorities shall inform the person

concerned without delay of his rights under this subparagraph;

(c) consular officers shall have the right to visit a national of the s ending State who is in prison,

custody or detention, to converse and correspond with him and to arrange for his legalrepresentation.

They shall also have the right to visit any national of the sending State who is in prison, custody

or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain

from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes

such action.

2 .The rights referred to in paragraph 1 of this article shall be exercised in conformity with the

laws and regulations of the receiving State, subject to the proviso, however, that the said laws and

regulations must enable full effect to be given to the purposes for which the rights accorded under

this article are intended.

Article 37

If the relevant information is available to the competent authorities of the receiving State, such

authorities shall have the duty:

(a ) in the case of the death of a national of the sending State, to inform without delay the

consular post in whose district the death occurred;

(b ) to inform the competent consular post without delay of any case where the appointment of a

guardian or trustee appears to be in the interests of a minor or other person lacking full capacity who is a

national of the s ending State. The giving of this information shall, however, be without prejudice to

the operation of the laws and regulations of the receiving State concerning such appointments;

(c) if a vessel, having the nationality of the sending State, is wrecked or runs aground in the

territorial sea or internal waters of the receiving State, or if an aircraft registered in the sendingState suffers an accident on the territory of the receiving State, to inform without delay the

consular post nearest to the scene of the occurrence.

Article 38

In the exercise of their functions, consular officers may address

(a ) the competent local authorities of their consular district;

(b ) the competent central authorities of the receiving State if and to the extent that this is allowed by

the law s, regulations and usages of the receiving State or by the relevant international agreements.

Article 39

1 .The consular post may levy in the territory of the receiving State the fees and charges provided by the

laws and regulations of the s ending State for consular acts.

2 .The sums collected in the form of the fees and charges referred to in paragraph 1 of this article, and the

receipts for such fees and charges, shall be exempt from all dues and taxes in the receiving State.

Article 40

The receiving State shall treat consular officers with du e respect and shall take all appropriate

steps to prevent any attack on their person, freedom or dignity.





!1=

2 .The waiver shall in all cases be express, except as provided in paragraph 3 of this article, and shall

be communicated to the receiving State in writing.

3 .The initiation of proceedings by a consular officer or a consular employee in a matter where he might

enjoy immunity from jurisdiction under article 43 shall preclude him from invoking immunity from

jurisdiction in respect of any counterclaim directly connected with the principal claim.

4 .The waiver of immunity from jurisdiction for the purposes of civil or administrative proceedings

shall not be deemed to imply the waiver of immunity from the measures of execution resulting

from the judicial decision; in respect of such measures, a separate waiver shall be necessary.

Article 46

1 .Consular officers and consular employees an d members of their families forming part of their

households shall be exempt from all obligations under the laws and regulations of the receiving State in

regard to the registration of aliens and residence permits.

2 .The provisions of paragraph 1 of this article shall not, however, apply to any consular employee who is

not a permanent employee of the sending State or who carries on any private gainful occupation in the

receiving State or to any member of the family of any such employee.

Article 47

1 .Members of the consular post shall, with respect to services rendered for the sending State, be

exempt from any obligations in regard to work permits imposed by the laws and regulations of

the receiving State concerning the employment of foreign labour.

2 .Members of the private staff of consular officers and of consular employees shall, if they do not carry

on any other gainful occupation in the receiving State, be exempt from the obligation s referred to in

paragraph 1 of this article.

Article 48

1 .Subject to the provisions of paragraph 3 of this article, members of the consular post withrespect to services rendered by them for the sending State, and members of their families forming part of

their households, shall be exempt from social security provisions which may be in force in the receiving

State.

2 .The exemption provided for in paragraph 1 of this article shall apply also to members of the

private staff who are in the sole employ of members of the consular post, on condition:

(a ) that they are not nationals of or permanently resident in the receiving State; and

(b ) that they are covered by the social security provisions which are in force in the sending State or a

third State.

3 .Members of the consular post who employ persons to whom the exemption provided for in

paragraph 2 of this article does not apply shall observe the obligations which the social security provisions of the receiving State impose upon employers.

4 .The exemption provided for in paragraphs 1 an d 2 of this article shall not preclude voluntary

participation in the social security system of the receiving State, provided that such participation

is permitted by that State.

Article 49



!10

1 .Consular officers and consular employees an d members of their families forming part of their

households shall be exempt from all dues and taxes, personal or real, national, regional or

municipal, except:

(a ) indirect taxes of a kind which are normally incorporated in the price of goods or services;

(b ) dues or taxes on private immovable property situated in the territory of the receiving State,subject to the provisions of article 32;

(c) estate, succession or inheritance duties, and duties on transfers, levied by the receiving State,

subject to the provisions of paragraph (b) of article 51;

(d ) dues and taxes on private income, including capital gain s, having its source in the receiving State

and capital taxes relating to investments made in commercial or financial undertakings in the

receiving State;

(e) charges levied for specific services rendered;

(f) registration, court or record fees, mortgage dues and stamp duties, subject to the provisions of

article 32 .

2 .Members of the service staff shall be exempt from dues and taxes on the wages which they

receive for their services.

3 .Members of the consular post who employ persons whose wages or s alaries are not exempt

from income tax in the receiving State shall observe the obligations which the laws and regulations

of that State impose upon employers concerning the levying of income tax.

Article 50

1 .The receiving State shall, in accordance with such laws and regulations as it may adopt, permit

entry of and grant exemption from all customs duties, taxes, and related charges other than charges

for storage, cartage and similar services, on:

(a ) articles for the official use of the consular post;

(b ) articles for the personal use of a consular officer or members of his family forming part of his

household, including articles intended for his establishment. The articles intended for consumption shall

not exceed the quantities necessary for direct utilization by the persons concerned.

2 .Consular employees shall enjoy the privileges and exemptions specified in paragraph 1 of this

article in respect of articles imported at the time of first installation.

3 .Personal baggage accompanying consular officers and members of their families forming part of

their households shall be exempt from inspection. It may be inspected only if there is serious reason

to believe that it contains articles other than those referred to in subparagraph (b) of paragraph 1 of this

article, or articles the import or export of which is prohibited by the laws and regulations of the

receiving State or which are subject to its quarantine laws and regulations. Such inspection shall

be carried out in the presence of the consular officer or member of his family concerned.

Article 51



!13

In the event of the death of a member of the consular post or of a member of his family forming part

of his household, the receiving State:

(a ) shall permit the export of the movable property of the deceased, with the exception of any such

property acquired in the receiving State the export of which was prohibited at the time of his death;

(b ) shall not levy national, region al or municipal estate, succession or inheritance duties, andduties on transfers, on movable property the presence of which in the receiving State was due

solely to the presence in that State of the deceased as a member of the consular post or as a member of the

family of a member of the consular post.

Article 52

The receiving State shall exempt members of the consular post and members of their families

forming part of their households from all personal services, from all public service of any kind

whatsoever, and from military obligations such as those connected with requisitioning, military

contributions and billeting.

Article 53

1 .Every member of the consular post shall enjoy the privileges and immunities provided in the present Convention from the moment he enters the territory of the receiving State on proceeding to

take up his post or, if already in its territory, from the moment when he enters on his duties with the

consular post.

2 .Members of the family of a member of the consular post forming part of his household and

members of his private staff shall receive the privileges and immunities provided in the present

Convention from the date from which he enjoys privileges and immunities in accordance with paragraph

1 of this article or from the date of their entry into the territory of the receiving State or from the date of

their becoming a member of such family or private staff, whichever is the latest.

3 .When the functions of a member of the consular post have come to an end, his privileges and

immunities and those of a member of his family forming part of his household or a member ofhis private staff shall normally cease at the moment t when the person concerned leaves the receiving

State or on the expiry of a reasonable period in which to do so, whichever is the s sooner, but shall

subsist until that time, even in case of armed conflict. In the case of the persons referred to in

paragraph 2 of this article, their privileges and immunities shall come to an end when they cease to

belong to the household or to be in the service of a member of the consular post provided, however,

that if such persons intend leaving the receiving State within a reasonable period thereafter, their

privileges and immunities shall subsist until the time of their departure.

4 .However, with respect to acts performed by a consular officer or a consular employee in the

exercise of his functions, immunity from jurisdiction shall continue to subsist without limitation of time.

5 .In the event of the death of a member of the consular post, the members of his family forming

part of his household shall continue to enjoy the privileges and immunities accorded to them untilthey leave the receiving State or until the e expiry o f a reasonable p period enabling them to do so,

whichever is the sooner.

Article 54

1 .If a consular officer passes through or is in the territory of a third State, which has granted him a visa

if a visa was necessary, w while proceeding to take up or return to his post or when returning to the

sending g State, the third State shall accord to him all immunities provided for by the other articles of

the present t Convention as may be required to ensure his transit or return. The same shall apply in the

case of any member of his family forming part of his household enjoying such p privileges and



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immunities who are accompanying the consular officer or travelling separately to join him or to

return to the sending State.

2 .In circumstances similar to those specified in paragraph 1 of this article, third States shall not

hinder the transit through their territory of other members of the consular post or of members of

their families forming part of their households.

3 .Third States shall accord to o official correspondence and to other official communications in

transit, including messages in code or cipher, the same freedom and protection as the receiving g State

is bound to accord under the present Convention. They shall accord to consular couriers who have

been granted a visa, if a visa was necessary, and to consular bags in transit, the same inviolability

and protection as the receiving State is bound to accord under the present Convention.

4 .The obligations of third States under paragraphs 1, 2 and 3 of this article shall also apply to the

persons mentioned respectively in those paragraphs, and to official communication s and to

consular bags, whose presence in the territory of the third State is due to force majeure.

Article 55

1 .Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such

privileges and immunities to respect the laws and regulations of the receiving State. They alsohave a duty not to interfere in the internal affairs of the State.

2 .The consular premises shall not be used in any manner incompatible with the exercise of

consular functions.

3 .The provisions of paragraph 2 of this article shall not exclude the possibility of offices of other

institutions or agencies being installed in part of the building in which the consular premises are

situated, provided that the p remises assigned to them are separate from those used by the consular

post.

In that event, the said offices s hall not, for the purposes of the present Convention, be considered

to form part of the consular premises.

Article 56

Members of the consular post shall comply with an y requirements imposed by the laws and

regulations of the receiving State, in respect of insurance against third party risks arising from the use of

any vehicle, vessel or aircraft.

Article 57

1 .Career consular officers shall not carry on for personal profit any professional or commercial

activity in the receiving State.

2 .Privileges and immunities provided in this chapter shall not be accorded :

(a ) to consular employees or to members of the service staff who carry on any private gainful

occupation in the receiving State;

(b ) to members of the family of a person referred to in subparagraph (a) of this paragraph or to

members of his private staff;

(c) to members of the family of a member of a consular post who themselves carry on any

private gainful occupation in the receiving State.



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Article 58

1 .Articles 28, 29, 30, 34, 35, 36, 37, 38 and 39, paragraph 3 of article 54 and paragraphs 2 and 3 of

article 55 s hall apply to consular posts headed by an honorary consular officer. In addition, the

facilities, privileges and immunities of such consular posts shall be governed by articles 59, 60, 61 and

62.

2 .Articles 42 and 43, paragraph 3 of article 44 , articles 45 and 53 and paragraph 1 of article 55

shall apply to honorary consular officers. In addition, the facilities, privileges and immunities of

such consular officers shall be governed by articles 63, 64, 65, 66 an d 67.

3 .Privileges and immunities provided in the present Convention shall not be accorded to members of

the family of an honorary consular officer or of a consular employee employed at a consular post

headed by an honorary consular officer.

4 .The exchange of consular bags between two consular posts headed by honorary consular officers

in different States shall not be allowed without the consent of the two receiving States concerned.

Article 59

T he receiving State shall take such steps as may be necessary to protect the consular premises of aconsular post headed by an honorary consular officer against any intrusion or damage and to prevent any

disturbance of the peace of the consular post or impairment of its dignity.

Article 60

1 .Consular premises of a consular post headed by an honorary consular officer of which the

sending State is the owner or lessee shall be exempt from all national, regional or municipal dues

and taxes whatsoever, other than such as represent payment for specific services rendered.

2 .The exemption from taxation referred to in paragraph l of this article shall not apply to such

dues and taxes if, under the laws and regulations of the receiving State, they are payable by the person

who contracted with the sending State.

Article 61

T he consular archives and documents of a consular post headed by an honorary consular officer

shall be inviolable at all times and wherever they may be, provided that they are kept separate

from other papers and documents and, in particular, from the private correspondence of the head of a

consular post and of any person working with him, and from the materials, books or documents

relating to their profession or trade

Article 62

The receiving State shall, in accordance with such laws and regulations as it may adopt, permit

entry of, and grant exemption from all customs duties, taxes, and related charges other than chargesfor storage, cartage and similar services on the following articles, provided that they are for the official

use of a consular post headed by an honorary consular officer: coats-of-arms, flags, signboards,

seals and stamps, books, official printed matter, office furniture, office equipment and similar articles

supplied by or at the instance of the sending State to the consular post.

Article 63

If criminal proceedings are instituted against an honorary consular officer, he must appear before the

competent authorities. Nevertheless, the proceedings shall be conducted with the respect due to him by

reason of his official position and, except when he is under arrest or detention, in a manner which



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will hamper the exercise of consular functions as little as possible. When it has become necessary

to detain an honorary consular officer, the proceedings against him shall be instituted with the minimum

of delay.

Article 64

T he receiving State is under a duty to accord to an honorary consular officer such protection asmay be required by reason of his official position.

Article 65

Exemption from registration of aliens and residence permits

Honorary consular officers, with the exception of those who carry on for personal profit any

professional or commercial activity in the receiving State, shall be exempt from all obligations under the

laws and regulations of the receiving State in regard to the registration of aliens and residence permits.

Article 66

A n honorary consular officer shall be exempt from all dues and taxes on the remuneration an

emoluments which he receives from the sending State in respect of the exercise of consular functions.

Article 67

The receiving State shall exempt honorary consular officers from all personal services and from all

public services of any kind whatsoever and from military obligations such as those connected with

requisitioning, military contribution s and billeting.

Article 68

Each State is free to decide whether it will appoint or receive honorary consular officers.

Article 69

1 .Each State is free to decide whether it will establish or admit consular agencies conducted by

consular agents not designated as head s o f consular post by the sending State.

2 .The conditions under which the consular agencies referred to in paragraph 1 of this article may carry

on their activities and the privileges and immunities which may be enjoyed by the consular agents in

charge of them shall be determined by agreement between the s ending State and the receiving State.

Article 70

1 .The provisions of the present Convention apply also, so far as the context permits, to the

exercise of consular functions by a diplomatic mission.

2 .The names of members of a diplomatic mission assigned to the consular section or otherwise

charged with the exercise of the consular functions of the miss ion shall be notified to the Ministryfor Foreign Affairs of the receiving State or to the authority designated by that Ministry.

3 .In the exercise of consular functions a diplomatic mission may address:

(a ) the local authorities of the consular district;

(b ) the central authorities of the receiving State if this is allowed by the laws , regulations and usages

of the receiving State or by relevant international agreements.



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4 .The privileges and immunities of the members of a diplomatic mission referred to in paragraph 2 of

this article s hall continue to be governed by the rules of international law concerning diplomatic

relations.

Article 71

1 .Except insofar as additional facilities, privileges and immunities may be granted by the

receiving State, consular officers who are nationals of or permanently resident in the receiving

State shall enjoy only immunity from jurisdiction and personal inviolability in respect of official

acts performed in the exercise of their functions, and the privileges provided in paragraph 3 of article

44. So far as these consular officers are concerned, the receiving State shall likewise be bound by the

obligation laid down in article 42. If criminal proceedings are instituted against such a consular

officer, the proceedings shall, except when he is under arrest or detention, be conducted in a

manner which will hamper the exercise of consular functions as little as possible.

2 .Other members of the consular post who are nationals of or permanently resident in the

receiving State and members of their families, as w ell as members of the families of consular

officers referred to in paragraph 1 of this article, shall enjoy facilities, privileges and immunities only

insofar as these are granted to them by the receiving State. Those members of the families of

members of the consular post and those members of the private staff who are themselves nationals

of or permanently resident in the receiving State shall likewise enjoy facilities, privileges and

immunities only insofar as these are granted to them by the receiving State. The receiving State

shall, however, exercise its jurisdiction over those persons in such a way as not to hinder unduly the

performance of the functions of the consular post.

Article 72

1 .In the application of the provisions of the present Convention the receiving State shall not

discriminate as between States.

2 .However, discrimination shall not be regarded as taking place:

(a ) where the receiving State applies any of the provisions of the present Convention restrictively because of a restrictive application of that provision to its consular posts in the sending State;

(b ) where by custom or agreement States extend to each other more favourable treatment than is

required by the provisions of the present Convention.

Vienna Convention on the Law of Treaties Done at Vienna on 23 May 1969

Article 1

Scope of the present Convention

The present Convention applies to treaties between States.

Article 2

Use of terms

1. For the purposes of the present Convention:

( a ) “treaty” means an international agreement concluded between States in written form and

governed by international law, whether embodied in a single instrument or in two or more related

instruments and whatever its particular designation;



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( b ) “ratification”, “acceptance”, “approval” and “accession” mean in each case the international act

so named whereby a State establishes on the international plane its consent to be bound by a treaty;

( c ) “full powers” means a document emanating from the competent authority of a State designating a

person or persons to represent the State for negotiating, adopting or authenticating the text of a

treaty, for expressing the consent of the State to be bound by a treaty, or for accomplishing any otheract with respect to a treaty;

( d ) “reservation” means a unilateral statement, however phrased or named, made by a State, when

signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to

modify the legal effect of certain provisions of the treaty in their application to that State;

( e ) “negotiating State” means a State which took part in the drawing up and adoption of the text of

the treaty;

( f ) “contracting State” means a State which has consented to be bound by the treaty, whether or not

the treaty has entered into force;

( g ) “party” means a State which has consented to be bound by the treaty and for which the treaty is in

force;

( h ) “third State” means a State not a party to the treaty;

( i ) “international organization” means an intergovernmental organization.

2. The provisions of paragraph 1 regarding the use of terms in the present Convention are without

prejudice to the use of those terms or to the meanings which may be given to them in the internal

law of any State.

Article 3

International agreements not within the scope of the present Convention

The fact that the present Convention does not apply to international agreements concluded between

States and other subjects of international law or between such other subjects of international law, or

to international agreements not in written form, shall not affect: 3

( a ) the legal force of such agreements;

( b ) the application to them of any of the rules set forth in the present Convention to which they

would be subject under international law independently of the Convention;

( c ) the application of the Convention to the relations of States as between themselves under

international agreements to which other subjects of international law are also parties.

Article 4





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( c ) representatives accredited by States to an international conference or to an international

organization or one of its organs, for the purpose of adopting the text of a treaty in that conference,

organization or organ.

Article 8

Subsequent confirmation of an act performed without authorization

An act relating to the conclusion of a treaty performed by a person who cannot be considered under

article 7 as authorized to represent a State for that purpose is without legal effect unless afterwards

confirmed by that State.

Article 9

Adoption of the text

1. The adoption of the text of a treaty takes place by the consent of all the States participating in its

drawing up except as provided in paragraph 2.

2. The adoption of the text of a treaty at an international conference takes place by the vote of two

thirds of the States present and voting, unless by the same majority they shall decide to apply a

different rule.

Article 10

Authentication of the text

The text of a treaty is established as authentic and definitive:

( a ) by such procedure as may be provided for in the text or agreed upon by the States participating inits drawing up; or

( b ) failing such procedure, by the signature, signature ad referendum or initialling by the

representatives of those States of the text of the treaty or of the Final Act of a conference

incorporating the text.

Article 11

Means of expressing consent to be bound by a treaty

The consent of a State to be bound by a treaty may be expressed by signature, exchange of

instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other

means if so agreed.

Article 12

Consent to be bound by a treaty expressed by signature

1. The consent of a State to be bound by a treaty is expressed by the signature of its representative

when:



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( a ) the treaty provides that signature shall have that effect;

( b ) it is otherwise established that the negotiating States were agreed that signature should have that

effect; or

( c ) the intention of the State to give that effect to the signature appears from the full powers of its

representative or was expressed during the negotiation.

2. For the purposes of paragraph 1:

( a ) the initialling of a text constitutes a signature of the treaty when it is established that the

negotiating States so agreed;

( b ) the signature ad referendum of a treaty by a representative, if confirmed by his State, constitutes a

full signature of the treaty.

Article 13

Consent to be bound by a treaty expressed by an exchange of instruments constituting a treaty

The consent of States to be bound by a treaty constituted by instruments exchanged between them is

expressed by that exchange when:

( a ) the instruments provide that their exchange shall have that effect; or

( b ) it is otherwise established that those States were agreed that the exchange of instruments should

have that effect.

Article 14

Consent to be bound by a treaty expressed by ratification, acceptance or approval

1. The consent of a State to be bound by a treaty is expressed by ratification when: 6

( a ) the treaty provides for such consent to be expressed by means of ratification;

( b ) it is otherwise established that the negotiating States were agreed that ratification should be

required;

( c ) the representative of the State has signed the treaty subject to ratification; or

( d ) the intention of the State to sign the treaty subject to ratification appears from the full powers ofits representative or was expressed during the negotiation.

2. The consent of a State to be bound by a treaty is expressed by acceptance or approval under

conditions similar to those which apply to ratification.

Article 15

Consent to be bound by a treaty expressed by accession



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The consent of a State to be bound by a treaty is expressed by accession when:

( a ) the treaty provides that such consent may be expressed by that State by means of accession;

( b ) it is otherwise established that the negotiating States were agreed that such consent may be

expressed by that State by means of accession; or

( c ) all the parties have subsequently agreed that such consent may be expressed by that State by

means of accession.

Article 16

Exchange or deposit of instruments of ratification, acceptance, approval or accession

Unless the treaty otherwise provides, instruments of ratification, acceptance, approval or accession

establish the consent of a State to be bound by a treaty upon:

( a ) their exchange between the contracting States;

( b ) their deposit with the depositary; or

( c ) their notification to the contracting States or to the depositary, if so agreed.

Article 17

Consent to be bound by part of a treaty and choice of differing provisions

1. Without prejudice to articles 19 to 23, the consent of a State to be bound by part of a treaty is

effective only if the treaty so permits or the other contracting States so agree. 7

2. The consent of a State to be bound by a treaty which permits a choice between differing

provisions is effective only if it is made clear to which of the provisions the consent relates.

Article 18

Obligation not to defeat the object and purpose of a treaty prior to its entry into force

A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when:

( a ) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification,

acceptance or approval, until it shall have made its intention clear not to become a party to the treaty;

or

( b ) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty

and provided that such entry into force is not unduly delayed.

SECTION 2. RESERVATIONS



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Article 19

Formulation of reservations

A State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a

reservation unless:

( a ) the reservation is prohibited by the treaty;

( b ) the treaty provides that only specified reservations, which do not include the reservation in

question, may be made; or

( c ) in cases not failing under subparagraphs ( a ) and ( b ), the reservation is incompatible with the object

and purpose of the treaty.

Article 20

Acceptance of and objection to reservations

1. A reservation expressly authorized by a treaty does not require any subsequent acceptance by the

other contracting States unless the treaty so provides.

2. When it appears from the limited number of the negotiating States and the object and purpose of a

treaty that the application of the treaty in its entirety between all the parties is an essential condition

of the consent of each one to be bound by the treaty, a reservation requires acceptance by all the

parties.

3. When a treaty is a constituent instrument of an international organization and unless it otherwise

provides, a reservation requires the acceptance of the competent organ of that organization.

4. In cases not falling under the preceding paragraphs and unless the treaty otherwise provides: 8

( a ) acceptance by another contracting State of a reservation constitutes the reserving State a party to

the treaty in relation to that other State if or when the treaty is in force for those States;

( b ) an objection by another contracting State to a reservation does not preclude the entry into force

of the treaty as between the objecting and reserving States unless a contrary intention is definitely

expressed by the objecting State;

( c ) an act expressing a State’s consent to be bound by the treaty and containing a reservation is

effective as soon as at least one other contracting State has accepted the reservation.

5. For the purposes of paragraphs 2 and 4 and unless the treaty otherwise provides, a reservation is

considered to have been accepted by a State if it shall have raised no objection to the reservation by

the end of a period of twelve months after it was notified of the reservation or by the date on which

it expressed its consent to be bound by the treaty, whichever is later.

Article 21

Legal effects of reservations and of objections to reservations



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1. A reservation established with regard to another party in accordance with articles 19, 20 and 23:

( a ) modifies for the reserving State in its relations with that other party the provisions of the treaty to

which the reservation relates to the extent of the reservation; and

( b ) modifies those provisions to the same extent for that other party in its relations with the reserving

State.

2. The reservation does not modify the provisions of the treaty for the other parties to the treaty

inter se.

3. When a State objecting to a reservation has not opposed the entry into force of the treaty between

itself and the reserving State, the provisions to which the reservation relates do not apply as between

the two States to the extent of the reservation.

Article 22

Withdrawal of reservations and of objections to reservations

1. Unless the treaty otherwise provides, a reservation may be withdrawn at any time and the consent

of a State which has accepted the reservation is not required for its withdrawal.

2. Unless the treaty otherwise provides, an objection to a reservation may be withdrawn at any time.

3. Unless the treaty otherwise provides, or it is otherwise agreed: 9

( a ) the withdrawal of a reservation becomes operative in relation to another contracting State only

when notice of it has been received by that State;

( b ) the withdrawal of an objection to a reservation becomes operative only when notice of it has beenreceived by the State which formulated the reservation.

Article 23

Procedure regarding reservations

1. A reservation, an express acceptance of a reservation and an objection to a reservation must be

formulated in writing and communicated to the contracting States and other States entitled tobecome parties to the treaty.

2. If formulated when signing the treaty subject to ratification, acceptance or approval, a reservation

must be formally confirmed by the reserving State when expressing its consent to be bound by the

treaty. In such a case the reservation shall be considered as having been made on the date of its

confirmation.

3. An express acceptance of, or an objection to, a reservation made previously to confirmation of the

reservation does not itself require confirmation.



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4. The withdrawal of a reservation or of an objection to a reservation must be formulated in writing.

SECTION 3. ENTRY INTO FORCE AND PROVISIONAL, APPLICATION OF TREATIES

Article 24

Entry into force

1. A treaty enters into force in such manner and upon such date as it may provide or as the

negotiating States may agree.

2. Failing any such provision or agreement, a treaty enters into force as soon as consent to be bound

by the treaty has been established for all the negotiating States.

3. When the consent of a State to be bound by a treaty is established on a date after the treaty has

come into force, the treaty enters into force for that State on that date, unless the treaty otherwise

provides.

4. The provisions of a treaty regulating the authentication of its text, the establishment of the consent

of States to be bound by the treaty, the manner or date of its entry into force, reservations, the

functions of the depositary and other matters arising necessarily before the entry into force of the

treaty apply from the time of the adoption of its text. 10

Article 25

Provisional application

1. A treaty or a part of a treaty is applied provisionally pending its entry into force if:

( a ) the treaty itself so provides; or

( b ) the negotiating States have in some other manner so agreed.

2. Unless the treaty otherwise provides or the negotiating States have otherwise agreed, the

provisional application of a treaty or a part of a treaty with respect to a State shall be terminated if

that State notifies the other States between which the treaty is being applied provisionally of its

intention not to become a party to the treaty.

PART III.

OBSERVANCE, APPLICATION AND INTERPRETATION OF TREATIES

SECTION 1. OBSERVANCE OF TREATIES

Article 26

“Pacta sunt servanda”

Every treaty in force is binding upon the parties to it and must be performed by them in good faith.

Article 27



544

Internal law and observance of treaties

A party may not invoke the provisions of its internal law as justification for its failure to perform a

treaty. This rule is without prejudice to article 46.

SECTION 2. APPLICATION OF TREATIES

Article 28

Non-retroactivity of treaties

Unless a different intention appears from the treaty or is otherwise established, its provisions do not

bind a party in relation to any act or fact which took place or any situation which ceased to exist

before the date of the entry into force of the treaty with respect to that party.

Article 29

Territorial scope of treaties

Unless a different intention appears from the treaty or is otherwise established, a treaty is binding

upon each party in respect of its entire territory.

Article 30

Application of successive treaties relating to the same subject matter

1. Subject to Article 103 of the Charter of the United Nations, the rights and obligations of States

Parties to successive treaties relating to the same subject matter shall be determined in accordance

with the following paragraphs.

2. When a treaty specifies that it is subject to, or that it is not to be considered as incompatible with,

an earlier or later treaty, the provisions of that other treaty prevail.

3. When all the parties to the earlier treaty are parties also to the later treaty but the earlier treaty is

not terminated or suspended in operation under article 59, the earlier treaty applies only to the extent

that its provisions are compatible with those of the later treaty.

4. When the parties to the later treaty do not include all the parties to the earlier one:

( a ) as between States Parties to both treaties the same rule applies as in paragraph 3;

( b ) as between a State party to both treaties and a State party to only one of the treaties, the treaty to which both States are parties governs their mutual rights and obligations.

5. Paragraph 4 is without prejudice to article 41, or to any question of the termination or suspension

of the operation of a treaty under article 60 or to any question of responsibility which may arise for a

State from the conclusion or application of a treaty the provisions of which are incompatible with its

obligations towards another State under another treaty.

SECTION 3. INTERPRETATION OF TREATIES



54!

Article 31

General rule of interpretation

1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to

the terms of the treaty in their context and in the light of its object and purpose.

2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text,

including its preamble and annexes:

( a ) any agreement relating to the treaty which was made between all the parties in connection with

the conclusion of the treaty;

( b ) any instrument which was made by one or more parties in connection with the conclusion of the

treaty and accepted by the other parties as an instrument related to the treaty.

3. There shall be taken into account, together with the context: 12

( a ) any subsequent agreement between the parties regarding the interpretation of the treaty or the

application of its provisions;

( b ) any subsequent practice in the application of the treaty which establishes the agreement of the

parties regarding its interpretation;

( c ) any relevant rules of international law applicable in the relations between the parties.

4. A special meaning shall be given to a term if it is established that the parties so intended.

Article 32

Supplementary means of interpretation

Recourse may be had to supplementary means of interpretation, including the preparatory work of

the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the

application of article 31, or to determine the meaning when the interpretation according to article 31:

( a ) leaves the meaning ambiguous or obscure; or

( b ) leads to a result which is manifestly absurd or unreasonable.

Article 33

Interpretation of treaties authenticated in two or more languages



545

1. When a treaty has been authenticated in two or more languages, the text is equally authoritative in

each language, unless the treaty provides or the parties agree that, in case of divergence, a particular

text shall prevail.

2. A version of the treaty in a language other than one of those in which the text was authenticated

shall be considered an authentic text only if the treaty so provides or the parties so agree.

3. The terms of the treaty are presumed to have the same meaning in each authentic text.

4. Except where a particular text prevails in accordance with paragraph 1, when a comparison of the

authentic texts discloses a difference of meaning which the application of articles 31 and 32 does not

remove, the meaning which best reconciles the texts, having regard to the object and purpose of the

treaty, shall be adopted.

SECTION 4. TREATIES AND THIRD STATES

Article 34

General rule regarding third States

A treaty does not create either obligations or rights for a third State without its consent. 13

Article 35

Treaties providing for obligations for third States

An obligation arises for a third State from a provision of a treaty if the parties to the treaty intend the

provision to be the means of establishing the obligation and the third State expressly accepts that

obligation in writing.

Article 36

Treaties providing for rights for third States

1. A right arises for a third State from a provision of a treaty if the parties to the treaty intend the

provision to accord that right either to the third State, or to a group of States to which it belongs, orto all States, and the third State assents thereto. Its assent shall be presumed so long as the contrary is

not indicated, unless the treaty otherwise provides.

2. A State exercising a right in accordance with paragraph 1 shall comply with the conditions for its

exercise provided for in the treaty or established in conformity with the treaty.

Article 37

Revocation or modification of obligations or rights of third States



546

1. When an obligation has arisen for a third State in conformity with article 35, the obligation may be

revoked or modified only with the consent of the parties to the treaty and of the third State, unless it

is established that they had otherwise agreed.

2. When a right has arisen for a third State in conformity with article 36, the right may not be

revoked or modified by the parties if it is established that the right was intended not to be revocableor subject to modification without the consent of the third State.

Article 38

Rules in a treaty becoming binding on third States through international custom

Nothing in articles 34 to 37 precludes a rule set forth in a treaty from becoming binding upon a third

State as a customary rule of international law, recognized as such.

PART IV.

AMENDMENT AND MODIFICATION OF TREATIES

Article 39

General rule regarding the amendment of treaties

A treaty may be amended by agreement between the parties. The rules laid down in Part II apply to

such an agreement except insofar as the treaty may otherwise provide. 14

Article 40

Amendment of multilateral treaties

1. Unless the treaty otherwise provides, the amendment of multilateral treaties shall be governed by

the following paragraphs.

2. Any proposal to amend a multilateral treaty as between all the parties must be notified to all the

contracting States, each one of which shall have the right to take part in:

( a ) the decision as to the action to be taken in regard to such proposal;

( b ) the negotiation and conclusion of any agreement for the amendment of the treaty.

3. Every State entitled to become a party to the treaty shall also be entitled to become a party to the

treaty as amended.

4. The amending agreement does not bind any State already a party to the treaty which does not

become a party to the amending agreement; article 30, paragraph 4 (b), applies in relation to such

State.

5. Any State which becomes a party to the treaty after the entry into force of the amending

agreement shall, failing an expression of a different intention by that State:

( a ) be considered as a party to the treaty as amended; and



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( b ) be considered as a party to the unamended treaty in relation to any party to the treaty not bound

by the amending agreement.

Article 41

Agreements to modify multilateral treaties between certain of the parties only

1. Two or more of the parties to a multilateral treaty may conclude an agreement to modify the treaty

as between themselves alone if:

( a ) the possibility of such a modification is provided for by the treaty; or

( b ) the modification in question is not prohibited by the treaty and:

(i) does not affect the enjoyment by the other parties of their rights under the treaty or the

performance of their obligations;

(ii) does not relate to a provision, derogation from which is incompatible with the effective execution

of the object and purpose of the treaty as a whole.

2. Unless in a case falling under paragraph 1 ( a ) the treaty otherwise provides, the parties in question

shall notify the other parties of their intention to conclude the agreement and of the modification to

the treaty for which it provides.

PART V.

INVALIDITY, TERMINATION AND SUSPENSION OF THE OPERATION OF TREATIES

SECTION 1. GENERAL PROVISIONS

Article 42

Validity and continuance in force of treaties

1. The validity of a treaty or of the consent of a State to be bound by a treaty may be impeached only

through the application of the present Convention.



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2. The termination of a treaty, its denunciation or the withdrawal of a party, may take place only as a

result of the application of the provisions of the treaty or of the present Convention. The same rule

applies to suspension of the operation of a treaty.

Article 43

Obligations imposed by international law independently of a treaty

The invalidity, termination or denunciation of a treaty, the withdrawal of a party from it, or the

suspension of its operation, as a result of the application of the present Convention or of the

provisions of the treaty, shall not in any way impair the duty of any State to fulfil any obligation

embodied in the treaty to which it would be subject under international law independently of the

treaty.

Article 44

Separability of treaty provisions

1. A right of a party, provided for in a treaty or arising under article 56, to denounce, withdraw from

or suspend the operation of the treaty may be exercised only with respect to the whole treaty unless

the treaty otherwise provides or the parties otherwise agree.

2. A ground for invalidating, terminating, withdrawing from or suspending the operation of a treaty

recognized in the present Convention may be invoked only with respect to the whole treaty except as

provided in the following paragraphs or in article 60.

3. If the ground relates solely to particular clauses, it may be invoked only with respect to those

clauses where:

( a ) the said clauses are separable from the remainder of the treaty with regard to their application;

( b ) it appears from the treaty or is otherwise established that acceptance of those clauses was not an

essential basis of the consent of the other party or parties to be bound by the treaty as a whole; and

( c ) continued performance of the remainder of the treaty would not be unjust.

4. In cases falling under articles 49 and 50, the State entitled to invoke the fraud or corruption may

do so with respect either to the whole treaty or, subject to paragraph 3, to the particular clauses

alone. 16

5. In cases falling under articles 51, 52 and 53, no separation of the provisions of the treaty ispermitted.

Article 45

Loss of a right to invoke a ground for invalidating, terminating, withdrawing from or suspending the operation of a

treaty







541

( b ) at any time by consent of all the parties after consultation with the other contracting States.

Article 55

Reduction of the parties to a multilateral treaty below the number necessary for its entry into force

Unless the treaty otherwise provides, a multilateral treaty does not terminate by reason only of thefact that the number of the parties falls below the number necessary for its entry into force.

Article 56

Denunciation of or withdrawal from a treaty containing no provision regarding termination, denunciation or withdrawal

1. A treaty which contains no provision regarding its termination and which does not provide for

denunciation or withdrawal is not subject to denunciation or withdrawal unless:

( a ) it is established that the parties intended to admit the possibility of denunciation or withdrawal; or

( b ) a right of denunciation or withdrawal may be implied by the nature of the treaty.

2. A party shall give not less than twelve months’ notice of its intention to denounce or withdraw

from a treaty under paragraph 1.

Article 57

Suspension of the operation of a treaty under its provisions or by consent of the parties

The operation of a treaty in regard to all the parties or to a particular party may be suspended:

( a ) in conformity with the provisions of the treaty; or

( b ) at any time by consent of all the parties after consultation with the other contracting States. 19

Article 58

Suspension of the operation of a multilateral treaty by agreement between certain of the parties only

1. Two or more parties to a multilateral treaty may conclude an agreement to suspend the operation

of provisions of the treaty, temporarily and as between themselves alone, if:

( a ) the possibility of such a suspension is provided for by the treaty; or

( b ) the suspension in question is not prohibited by the treaty and:

(i) does not affect the enjoyment by the other parties of their rights under the treaty or the

performance of their obligations;

(ii) is not incompatible with the object and purpose of the treaty.

2. Unless in a case falling under paragraph 1 ( a ) the treaty otherwise provides, the parties in question

shall notify the other parties of their intention to conclude the agreement and of those provisions of

the treaty the operation of which they intend to suspend.



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Article 59

Termination or suspension of the operation of a treaty implied by conclusion of a later treaty

1. A treaty shall be considered as terminated if all the parties to it conclude a later treaty relating to

the same subject matter and:

( a ) it appears from the later treaty or is otherwise established that the parties intended that the matter

should be governed by that treaty; or

( b ) the provisions of the later treaty are so far incompatible with those of the earlier one that the two

treaties are not capable of being applied at the same time.

2. The earlier treaty shall be considered as only suspended in operation if it appears from the later

treaty or is otherwise established that such was the intention of the parties.

Article 60

Termination or suspension of the operation of a treaty as a consequence of its breach

1. A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach

as a ground for terminating the treaty or suspending its operation in whole or in part.

2. A material breach of a multilateral treaty by one of the parties entitles:

( a ) the other parties by unanimous agreement to suspend the operation of the treaty in whole or in

part or to terminate it either:

(i) in the relations between themselves and the defaulting State; or

(ii) as between all the parties;

( b ) a party specially affected by the breach to invoke it as a ground for suspending the operation of

the treaty in whole or in part in the relations between itself and the defaulting State;

( c ) any party other than the defaulting State to invoke the breach as a ground for suspending the

operation of the treaty in whole or in part with respect to itself if the treaty is of such a character that

a material breach of its provisions by one party radically changes the position of every party with

respect to the further performance of its obligations under the treaty.

3. A material breach of a treaty, for the purposes of this article, consists in:

( a ) a repudiation of the treaty not sanctioned by the present Convention; or

( b ) the violation of a provision essential to the accomplishment of the object or purpose of the treaty.

4. The foregoing paragraphs are without prejudice to any provision in the treaty applicable in the

event of a breach.



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5. Paragraphs 1 to 3 do not apply to provisions relating to the protection of the human person

contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of

reprisals against persons protected by such treaties.

Article 61

Supervening impossibility of performance

1. A party may invoke the impossibility of performing a treaty as a ground for terminating or

withdrawing from it if the impossibility results from the permanent disappearance or destruction of

an object indispensable for the execution of the treaty. If the impossibility is temporary, it may be

invoked only as a ground for suspending the operation of the treaty.

2. Impossibility of performance may not be invoked by a party as a ground for terminating,

withdrawing from or suspending the operation of a treaty if the impossibility is the result of a breach

by that party either of an obligation under the treaty or of any other international obligation owed to

any other party to the treaty.

Article 62

Fundamental change of circumstances

1. A fundamental change of circumstances which has occurred with regard to those existing at the

time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as

a ground for terminating or withdrawing from the treaty unless:

( a ) the existence of those circumstances constituted an essential basis of the consent of the parties to

be bound by the treaty; and 21

( b ) the effect of the change is radically to transform the extent of obligations still to be performed

under the treaty.

2. A fundamental change of circumstances may not be invoked as a ground for terminating or

withdrawing from a treaty:

( a ) if the treaty establishes a boundary; or

( b ) if the fundamental change is the result of a breach by the party invoking it either of an obligation

under the treaty or of any other international obligation owed to any other party to the treaty.

3. If, under the foregoing paragraphs, a party may invoke a fundamental change of circumstances as aground for terminating or withdrawing from a treaty it may also invoke the change as a ground for

suspending the operation of the treaty.

Article 63

Severance of diplomatic or consular relations



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The severance of diplomatic or consular relations between parties to a treaty does not affect the legal

relations established between them by the treaty except insofar as the existence of diplomatic or

consular relations is indispensable for the application of the treaty.

Article 64

Emergence of a new peremptory norm of general international law (“jus cogens”)

If a new peremptory norm of general international law emerges, any existing treaty which is in

conflict with that norm becomes void and terminates.

SECTION 4. PROCEDURE

Article 65

Procedure to be followed with respect to invalidity, termination, withdrawal from or suspension of the operation of a

treaty

1. A party which, under the provisions of the present Convention, invokes either a defect in its

consent to be bound by a treaty or a ground for impeaching the validity of a treaty, terminating it,

withdrawing from it or suspending its operation, must notify the other parties of its claim. The

notification shall indicate the measure proposed to be taken with respect to the treaty and the reasons

therefor.

2. If, after the expiry of a period which, except in cases of special urgency, shall not be less than three

months after the receipt of the notification, no party has raised any objection, the party making the

notification may carry out in the manner provided in article 67 the measure which it has proposed. 22

3. If, however, objection has been raised by any other party, the parties shall seek a solution through

the means indicated in Article 33 of the Charter of the United Nations.

4. Nothing in the foregoing paragraphs shall affect the rights or obligations of the parties under any

provisions in force binding the parties with regard to the settlement of disputes.

5. Without prejudice to article 45, the fact that a State has not previously made the notification

prescribed in paragraph 1 shall not prevent it from making such notification in answer to another

party claiming performance of the treaty or alleging its violation.

Article 66

Procedures for judicial settlement, arbitration and conciliation

If, under paragraph 3 of article 65, no solution has been reached within a period of 12 months

following the date on which the objection was raised, the following procedures shall be followed:

( a ) any one of the parties to a dispute concerning the application or the interpretation of article 53 or

64 may, by a written application, submit it to the International Court of Justice for a decision unless

the parties by common consent agree to submit the dispute to arbitration;





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1. Unless the treaty otherwise provides or the parties otherwise agree, the termination of a treaty

under its provisions or in accordance with the present Convention:

( a ) releases the parties from any obligation further to perform the treaty;

( b ) does not affect any right, obligation or legal situation of the parties created through the execution

of the treaty prior to its termination.

2. If a State denounces or withdraws from a multilateral treaty, paragraph 1 applies in the relations

between that State and each of the other parties to the treaty from the date when such denunciation

or withdrawal takes effect.

Article 71

Consequences of the invalidity of a treaty which conflicts with a peremptory norm of general international law

1. In the case of a treaty which is void under article 53 the parties shall:

( a ) eliminate as far as possible the consequences of any act performed in reliance on any provision

which conflicts with the peremptory norm of general international law; and 24

( b ) bring their mutual relations into conformity with the peremptory norm of general international

law.

2. In the case of a treaty which becomes void and terminates under article 64, the termination of the

treaty:

( a ) releases the parties from any obligation further to perform the treaty;

( b ) does not affect any right, obligation or legal situation of the parties created through the executionof the treaty prior to its termination, provided that those rights, obligations or situations may

thereafter be maintained only to the extent that their maintenance is not in itself in conflict with the

new peremptory norm of general international law.

Article 72

Consequences of the suspension of the operation of a treaty

1. Unless the treaty otherwise provides or the parties otherwise agree, the suspension of the

operation of a treaty under its provisions or in accordance with the present Convention:

( a ) releases the parties between which the operation of the treaty is suspended from the obligation to

perform the treaty in their mutual relations during the period of the suspension;

( b ) does not otherwise affect the legal relations between the parties established by the treaty.



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2. During the period of the suspension the parties shall refrain from acts tending to obstruct the

resumption of the operation of the treaty.

PART VI.

MISCELLANEOUS PROVISIONS

Article 73

Cases of State succession, State responsibility and outbreak of hostilities

The provisions of the present Convention shall not prejudge any question that may arise in regard to

a treaty from a succession of States or from the international responsibility of a State or from the

outbreak of hostilities between States.

Article 74

Diplomatic and consular relations and the conclusion of treaties

The severance or absence of diplomatic or consular relations between two or more States does not

prevent the conclusion of treaties between those States. The conclusion of a treaty does not in itself

affect the situation in regard to diplomatic or consular relations. 25

Article 75

Case of an aggressor State

The provisions of the present Convention are without prejudice to any obligation in relation to a

treaty which may arise for an aggressor State in consequence of measures taken in conformity with

the Charter of the United Nations with reference to that State’s aggression.

PART VII.

DEPOSITARIES, NOTIFICATIONS, CORRECTIONS AND REGISTRATION

Article 76

Depositaries of treaties

1. The designation of the depositary of a treaty may be made by the negotiating States, either in the

treaty itself or in some other manner. The depositary may be one or more States, an international

organization or the chief administrative officer of the organization.



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2. The functions of the depositary of a treaty are international in character and the depositary is

under an obligation to act impartially in their performance. In particular, the fact that a treaty has not

entered into force between certain of the parties or that a difference has appeared between a State

and a depositary with regard to the performance of the latter’s functions shall not affect that

obligation.

Article 77

Functions of depositaries

1. The functions of a depositary, unless otherwise provided in the treaty or agreed by the contracting

States, comprise in particular:

( a ) keeping custody of the original text of the treaty and of any full powers delivered to the

depositary;

( b ) preparing certified copies of the original text and preparing any further text of the treaty in such

additional languages as may be required by the treaty and transmitting them to the parties and to theStates entitled to become parties to the treaty;

( c ) receiving any signatures to the treaty and receiving and keeping custody of any instruments,

notifications and communications relating to it;

( d ) examining whether the signature or any instrument, notification or communication relating to the

treaty is in due and proper form and, if need be, bringing the matter to the attention of the State in

question;

( e ) informing the parties and the States entitled to become parties to the treaty of acts, notifications

and communications relating to the treaty; 26

( f ) informing the States entitled to become parties to the treaty when the number of signatures or of

instruments of ratification, acceptance, approval or accession required for the entry into force of the

treaty has been received or deposited;

( g ) registering the treaty with the Secretariat of the United Nations;

( h ) performing the functions specified in other provisions of the present Convention.

2. In the event of any difference appearing between a State and the depositary as to the performance

of the latter’s functions, the depositary shall bring the question to the attention of the signatory States

and the contracting States or, where appropriate, of the competent organ of the internationalorganization concerned.

Article 78

Notifications and communications

Except as the treaty or the present Convention otherwise provide, any notification or communication

to be made by any State under the present Convention shall:



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( a ) if there is no depositary, be transmitted direct to the States for which it is intended, or if there is a

depositary, to the latter;

( b ) be considered as having been made by the State in question only upon its receipt by the State to

which it was transmitted or, as the case may be, upon its receipt by the depositary;

( c ) if transmitted to a depositary, be considered as received by the State for which it was intended

only when the latter State has been informed by the depositary in accordance with article 77,

paragraph 1 ( e ).

Article 79

Correction of errors in texts or in certified copies of treaties

1. Where, after the authentication of the text of a treaty, the signatory States and the contracting

States are agreed that it contains an error, the error shall, unless they decide upon some other means

of correction, be corrected:

( a ) by having the appropriate correction made in the text and causing the correction to be initialled

by duly authorized representatives;

( b ) by executing or exchanging an instrument or instruments setting out the correction which it has

been agreed to make; or

( c ) by executing a corrected text of the whole treaty by the same procedure as in the case of the

original text.

2. Where the treaty is one for which there is a depositary, the latter shall notify the signatory States

and the contracting States of the error and of the proposal to correct it and shall specify an

appropriate time-limit within which objection to the proposed correction may be raised. If, on the

expiry of the time-limit:

( a ) no objection has been raised, the depositary shall make and initial the correction in the text and

shall execute a procès-verbal of the rectification of the text and communicate a copy of it to the

parties and to the States entitled to become parties to the treaty;

( b ) an objection has been raised, the depositary shall communicate the objection to the signatory

States and to the contracting States.

3. The rules in paragraphs I and 2 apply also where the text has been authenticated in two or more

languages and it appears that there is a lack of concordance which the signatory States and thecontracting States agree should be corrected.

4. The corrected text replaces the defective text ab initio, unless the signatory States and the

contracting States otherwise decide.

5. The correction of the text of a treaty that has been registered shall be notified to the Secretariat of

the United Nations.



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6. Where an error is discovered in a certified copy of a treaty, the depositary shall execute a procès-

verbal specifying the rectification and communicate a copy of it to the signatory States and to the

contracting States.

Article 80

Registration and publication of treaties

1. Treaties shall, after their entry into force, be transmitted to the Secretariat of the United Nations

for registration or filing and recording, as the case may be, and for publication.

2. The designation of a depositary shall constitute authorization for it to perform the acts specified in

the preceding paragraph.

PART VIII.

FINAL PROVISIONS

Article 81

Signature

The present Convention shall be open for signature by all States Members of the United Nations or

of any of the specialized agencies or of the International Atomic Energy Agency or parties to the

Statute of the International Court of Justice, and by any other State invited by the General Assembly

of the United Nations to become a party to the Convention, as follows: until 30 November 1969, at

the Federal Ministry for Foreign Affairs of the Republic of Austria, and subsequently, until 30 April

1970, at United Nations Headquarters, New York.

Article 82

Ratification

The present Convention is subject to ratification. The instruments of ratification shall be deposited

with the Secretary-General of the United Nations.

Article 83

Accession

The present Convention shall remain open for accession by any State belonging to any of the

categories mentioned in article 81. The instruments of accession shall be deposited with the

Secretary-General of the United Nations.

Article 84



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