Political Law Review Notes (Atty. Edwin Sandoval) Prepared by

- In Remedial Law, referred to loosely as ―special courts‖- Doctrine of Primary Jurisdiction.

THE JUDICIARY ART. VIII Sec. 1 Par. 1- ―The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law‖

- Part of the executive.

*The Supreme Court is the only constitutional court.

Ex. CSC, SEC, COA, COMELEC

Q. SB?

*Since quasi-judicial bodies are not strictly courts, their jurisdiction is strictly construed against them.

A. No. It is not a constitutional court, although mentioned in the Constitution. It is only a constitutionally mandated court.

JUDICIAL POWER AND POLITICAL QUESTION DOCTRINE

*Judicial power is not vested in the Supreme Court alone.

Q. What is JUDICIAL POWER?

*It is vested as well in such lower courts as may be established by law.

A. JUDICIAL POWER includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government. (Art. VIII, Sec. 1, Par. 2)

―Such lower courts as may be established by law‖ (BP 129 Judiciary Reorganization Act of 1980) *Court of Appeals- referred to as lower collegiate courts

- Definition of Judicial Power. *Regional Trial Courts- courts of general jurisdiction - Not found in the 1935 and 1973 Constitution. *Courts of limited jurisdiction- (1) Metropolitan Trial Courts (2) MTCC [chartered cities] (3) Municipal Trial Courts/ Municipal Circuit Trial Courts *Sandiganbayan- special court having jurisdiction over public officers; coequal with the Court of Appeals. *Court of Tax Appeals- special court having jurisdiction over tax appeals cases.

- Represents a broadening of judicial power to enable the courts of justice to review what was before forbidden territory. ―DUTY‖ -The provision uses the word DUTY -The settlement of controversies and the determination of whether or not there has been grave abuse of discretion is not merely a power- it is a duty of the courts as well.

*SHARIAH COURTS- pursuant to Muslim Code; 2 levels: (1) Shariah District Court- equivalent to RTC

-in power, the power holder has discretion to exercise. (2) Shariah Circuit Court- equivalent to MTC -if it was only a power, then the courts has the discretion to exercise it or not. *QUASI JUDICIAL BODIES- strictly speaking, they are not courts- do not form part of the judicial system. -

They

are

performing quasi-judicial functions.

Political Law Review Notes (Atty. Edwin Sandoval) Prepared by: Atty Joan P. Gamboa

administrative

-Since it is a duty, there is no such discretion- the exercise of the power is obligatory and mandatory upon the courts.

bodies TWO PARTS OF THE DEFINITION

1. To settle actual controversies involving rights which are legally demandable and enforceable. (TRADITIONAL)

-The legislative and the executive are called POLITICAL BRANCHES of the government, where policies are formulated, enacted and implemented.

-Very limited definition.

-Questions of policy that are formulated by the political branches and thus cannot be the subject of judicial review. This includes questions involving the wisdom, propriety, efficacy or morality of an act.

-Maybe defeated by the political question doctrine. 2. To determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. (EXPANDED)

TAÑADA VS. CUENCO

-Expanded Power of Judicial Review or the Extraordinary Power to Determine Grave Abuse of Discretion as referred to by the Supreme Court.

-POLITICAL QUESTIONS refer to those questions which under the Constitution are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government.

-Political question doctrine has been greatly diminished. Q. How does the definition of judicial power under the present Constitution affected the political question doctrine?

-Classic definition of political question.

TWO TYPES OF POLITICAL QUESTIONS 1.

A. The 1987 Constitution expands the concept of judicial review. Under the expanded definition, the Court cannot agree xxx that the issues involved is a political question beyond the jurisdiction of the court to review. When the grant of power is qualified, conditional or subject to limitations, the issue of whether the prescribed qualifications or conditions have been met or the limitations respected is justiciable – the problem being one of legality or validity, not its wisdom. Moreover, the jurisdiction to delimit constitutional boundaries has been given to this court. When political questions are involved, the Constitution limits the delimitation as to whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the official whose action is being questioned.

Those questions which under the Constitution are to be decided by the people in their sovereign capacity. Ex. Recall under the LGC -A mode of removing a local elective official even before the 3 year term on the ground of loss of trust/confidence. -There is only one ground for recall-loss of confidence. EVARDONE VS. COMELEC *Loss of confidence as a ground for recall is a political question.

Q. What are political questions?

*After all, the initiation of the recall process is not the recall itself.

A.-Origin: The principle of separation of powers.

*In the recall election, the people will decide whether or not they have lost their confidence in the official concerned.

-In turn, this principle is the result of our Presidential System of Government. (In a Parliamentary government, the executive and the legislative branches are welded together)

*Hence, it is a question which has to be decided by the people in their sovereign capacity. *When? In the recall election itself.

-Thus, legislative power is given to Congress; executive power is given to the President and judicial power is given to the Supreme Court- 3 great powers distributed among 3 branches of government.

*Not subject to judicial review. ESTRADA VS. DESIERTO-EDSA 1


*Lawyers League for a Better Philippines vs. Aquino

overthrows the whole government.

government for redress of grievances which only affected the Office of the President.

-Extra-constitutional and the legitimacy of the new government that resulted from it cannot be the subject of judicial review.

-Intra-constitutional and the resignation of the sitting President that it caused and the succession of the Vice President as president are subject to judicial review.

*Oliver Lozano filed a petition before the Supreme Court questioning the legitimacy of the Cory government. *According to the petition, most of the people who went to EDSA are not really serious in overthrowing the Marcos government. (Most were vendors) SC: dismissed the petition. *No matter, We will no longer inquire into the motives of the people in going to EDSA. The facts were: because of the magnitude of the people who were in EDSA, Marcos fled to Hawaii, so that the Cory government was able to take effective control of the machinery of the State without resistance from the people. Furthermore, the international community has recognized the Cory Government. Hence, there can be no more question as to the de jure status of the said government.

-Involves legal questions. -Presented a political question.

2. *The Aquino government was the result of a successful revolution by the sovereign people-it was installed through a direct exercise of the power of the Filipino people, in defiance of the provisions of the 1973 Constitution. The legitimacy of a government sired by a successful revolution by people power is beyond judicial scrutiny; such government automatically orbits out of the constitutional loop.

Those in regard to which full discretionary authority has been delegated by the Constitution to the executive or legislative branch of the government. Ex. Calling out power of the President under Article VII, Sec. 18

IBP VS. ZAMORA

Estrada vs. Desierto

*During the time of President Estrada, he issued a LOI ordering the deployment of Marines in the metropolis to conduct joint visibility patrols with members of the PNP in various shopping malls.

*Desierto argues that the legitimacy of Arroyo‘s assumption to the presidency is a political question, and invokes the ruling in the Lawyers League case.

*IBP asks that the exercise of such power be subjected to judicial review. SC: No.

SC: No. (Justice Reynato S. Puno) *Arroyo‘s government is not revolutionary in character. The oath she took is the oath under the 1987 Constitution. Indeed, she has stressed that she is discharging the powers of the presidency under the authority of the 1987 Constitution. LEGAL DISTINCTIONS BETWEEN EDSA 1 AND EDSA 2 EDSA 1

EDSA 2

-Involves the exercise of the people power of revolution which

-Involves the exercise of the people power of freedom of speech and freedom to assemble, to petition the

*When the President calls the armed forces to prevent or suppress lawless violence, invasion or rebellion, he necessarily exercises a discretionary power solely vested in his wisdom. This is clear from the intent of the framers and from the text of the Constitution. Thus, the Court cannot be compelled upon to overrule the President‘s wisdom or substitute its own. However this does not prevent an examination of whether such power was exercised within permissible constitutional limits or whether it was exercised in a manner constituting grave abuse of discretion. 3 powers under Art. VII, Sec. 18


1.

Calling out power as commander-in-chief of AFP

2.

Declare Martial Law

3.

Suspend the privilege of the writ of habeas corpus

*Unlike in the past, the power to declare martial law and to suspend the privilege of the writ of habeas corpus were expressly made subject of judicial review. *Article VII, Sec. 18, Par 3- ―The Supreme Court may review in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision within thirty days from its filing.‖

A. Calling out power is the lesser and more benign power while the power to declare martial law and to suspend the privilege of the writ of habeas corpus are the greater powers which involve direct curtailment of civil liberties thereby necessitating safeguards of Congress and judicial review of the Court. (IBP VS. ZAMORA) DAVID VS. GMA

CALLING OUT POWER

*PGMA exercised the calling out power when she issued GO 5 and PP 1017, not the martial law power. The acts taken purportedly to carry out the issuances were ultra vires, hence, unconstitutional. The exercise of the calling out power does not involve the direct curtailment and suppression of civil liberties and individual freedoms. However GO 5 and PP1017 are constitutional. Petitioners failed to counteract the factual bases therefore as alleged by the Solgen.

-It is a political question.

Q. Why not the martial law powers?

-A question in regard to which full discretionary authority has been delegated by the Constitution to the President.

A. There was no case of invasion or rebellion. President will be required to submit report to (kulang page ko, sorry...)

SC: It is the unclouded intent of the Court to grant to the President full discretionary authority. The hands of the President should not be tied; otherwise, this could be a veritable proscription for disaster. Unless grave abuse of discretion is shown, the President‘s exercise of the power should not be questioned. Mere abuse of discretion will not suffice. To doubt is to sustain.

Q. What are the THREE IMPORTANT FUNCTIONS OF THE COURT? A. 1. Checking 2. Legitimizing 3. Symbolic

Q. What is the effect of the EXPANDED CONCEPT OF JUDICIAL POWER on the political question doctrine?

SYMBOLIC FUNCTION OF THE COURT

*It must be grave abuse of discretion to warrant judicial intervention.

It is the duty of the Court to formulate guiding and controlling principles, precepts, doctrines or rules. It has the symbolic function of educating the bench and the bar on the extent of protection given by Constitutional guaranties. Q. What are the requisites for a proper exercise of the power of JUDICIAL REVIEW?

*Mere abuse of discretion is not enough.

A. The time-tested standards for the exercise of judicial review are:

A. It has lessened the political question doctrine. Thus, even if it is a political question, if there appears to be abuse of discretion, the Court may review it. *The burden is upon petitioners- the ones assailing the act.

*To doubt is to sustain the act of the person. Q. Why the difference in treatment?


-

1. The existence of an appropriate case; 2. An interest personal and substantial by the party raising the constitutional question;

3. The plea that the function be exercised at the earliest opportunity; and

2.

To render advisory opinions to UN organs

MOOT AND ACADEMIC CASES 4. The necessity that the constitutional question be passed upon in order to decide the case.

-

THE MEANING OF ACTUAL CASE OR CONTROVERSY -It means an existing case or controversy which is both ripe for resolution and susceptible of judicial determination and that which is not conjectural or clarificatory, or that which seeks to resolve hypothetical or feigned constitutional problems. (IBP VS. ZAMORA) *There must also be a conflict of rights-opposing views or contentions-if not, the Court would be resolving issues that remain unfocused because they lack concreteness.

A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening events, so that a declaration thereon would be of no practical use or value. Generally, courts decline jurisdiction over such case or dismiss it on ground of mootness. (David vs. GMA)

*The moot and academic principle is not a magical formula that can automatically dissuade the courts in resolving a case. Courts will decide cases, otherwise moot and academic, if:

*The controversy must also be justiciable-meaning susceptible of judicial determination.

1. 2.

Q. May courts render advisory opinions?

3.

A. No, courts can only decide actual controversies, not hypothetical questions or cases.

4.

There is a grave violation of the Constitution; The exceptional character of the situation and the paramount public interest involved; When constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public; and The case is capable of repetition yet evading review. (David vs. GMA)

-There must be an actual case or controversy to be resolved. PROPER PARTY REQUIREMENT -The definition of judicial power under Art. VIII is clear. The evil sought to be avoided is the possible violation of due process. It is also repugnant to the Principle of Separation of Powers. If a case is bought involving the same issue, the court might be forced to follow. *On the other hand, INTERNATIONAL COURT OF JUSTICE can render advisory opinions. Q. Basis? A. 1. Statute of ICJ itself 2. UN Charter 2 MAIN FUNCTIONS OF THE ICJ: 1.

To resolve contentious cases


Q. What is the meaning of locus standi? A. LEGAL STANDING or LOCUS STANDI has been defined as a personal and substantial interest in the case, such that a party has sustained or will sustain direct injury as a result of the governmental act that is being challenged. The term INTEREST means a material interest, an interest in issue affected by the decree, as distinguished from mere interest in the question involved, or a mere incidental interest. *The gist of the question of standing is whether a party alleges such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions. (IBP vs. Zamora)

IBP VS. ZAMORA *IBP has no locus standi. The mere invocation of its duty to preserve the rule of law is a too general interest. It has not shown any injury it has suffered nor will suffer by virtue of the act complained of. The presumed injury is not personal, too vague, highly speculative and uncertain to confer locus standi. However, IBP has advanced constitutional issues which deserve attention of this court, in view of their seriousness, novelty and weight as precedents. TAXPAYER‘S SUIT To constitute a taxpayer‘s suit, two requisites must be met, namely: 1.

2.

*Matibag questioned the legality of the appointments of Benipayo, Borra and Tuason on 03 August 2001, when their first appointments were issued on 22 April 2001. Thus, it is argued that the constitutional question was not raised on the earliest possible opportunity. SC: No. It is not the date of the filing that determines whether the constitutional question was raised at the earliest possible opportunity. The earliest opportunity to raise a constitutional issue is to raise it in the pleadings before a competent court that can resolve it, such that if not raised in the pleadings, it cannot be raised on appeal. Here, Matibag questioned the legality of said appointments when she filed her petition before the Supreme Court, which is the earliest opportunity for pleading the constitutional issue before a competent body.

That public funds are disbursed by a political subdivision or instrumentality and in doing so, a law is violated or some irregularity is committed; and

THE CONSTITUTIONAL QUESTION MUST BE THE VERY LIS MOTA OF THE ENTIRE CONTROVERSY

That the petitioner is directly affected by the alleged ultra vires act.

*The constitutional question must be the main issue of the controversy.

KILOSBAYAN VS. MORATO

*There is no way that the Court may resolve the entire case, unless it first resolves the constitutional question raised.

*Kilosbayan filed 2 petitions as a taxpayer. AMENDMENTS OR REVISIONS (ARTICLE XVII) SC: Taxpayer suit does not lie because the issue does not involve the disbursement of public funds. Rather, what is involved was the interpretation of the charter of the PCSO. THE CONSTITUTIONAL QUESTION MUST BE RAISED AT THE EARLIEST OPPORTUNE TIME -

-

It is not the date of the filing of the petition that determines whether the constitutional issue was raised at the earliest opportunity. The earliest opportunity to raise a constitutional issue is to raise it in the pleadings before a competent court that can resolve the same, such that, ―if it is not raised in the pleadings, it cannot be considered at the trial, and if not considered at the trial, it cannot be considered on appeal. (Matibag vs. Benipayo)

3 ESSENTIAL ELEMENTS OF A GOOD WRITTEN CONSTITUTION: 1.

Constitution of Government: Articles VI, VII, VIII, IX, X

2.

Constitution of Liberty: Article III (Bill of Rights)

3.

Constitution of Sovereignty: Article XVII (Amendatory Process) AMENDMENT

REVISION

-refers to a change that adds, reduces or deletes without altering the basic principle involved.

-implies a change that alters a basic principle in the Constitution. -if the change alters the substantial entirety of the constitution, as when the changes affect substantial provisions of the constitution.

However in criminal cases, the accused may raise the constitutional question even for the first time on appeal. This is because criminal cases involve the basic rights of the accused to life and liberty.

MATIBAG VS. BENIPAYO


-affects only the specific provision being amended.

-affects several provisions in the constitution.

-isolated or piecemeal changes in the Constitution. Ex. Lowering of the voting age.

-overhaul of the whole Constitution. Ex. Altering the principle of separation of powers or the system of checks and balances.

MODES OF PROPOSING AMENDMENTS OR REVISIONS 1.

Congress acting as constituent assembly

-One of the non-legislative powers of Congress -Congress meets in order to directly propose amendments or revisions

TWO PART TEST 1.

2.

QUANTITATIVE TEST: asks whether the proposed change is so extensive in its provisions as to change directly the substantial entirety of the Constitution by the deletion or alteration of numerous existing provisions. The court examines only the number of provisions affected and does not consider the degree of change. QUALITATIVE TEST: inquires into the qualitative effects of the proposed change in the Constitution. The main inquiry is whether the change will accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision. Whether there is an alteration in the structure of government is a proper subject of inquiry.

*A change in the nature of the basic governmental plan includes changes in its fundamental framework or the fundamental powers of its branches. A change in the nature of the basic governmental plan also includes changes that ―jeopardize the traditional form of government and the system of checks and balances‖. (Lambino vs. COMELEC) *LAMBINO VS. COMELEC -Under both the quantitative and qualitative tests, the Lambino group‘s initiative is a revision, not merely an amendment. QUANTITATIVELY, the Lambino group‘s proposed changes overhaul two Articles-Article VI of the Legislature and Article VII on the Executive-affecting a total of 105 provisions in the entire Constitution. QUALITATIVELY, the proposed changes alter substantially the basic plan of government from presidential to parliamentary and from a bicameral to unilateral legislature. STAGES IN THE AMENDATORY PROCESS 1.

Proposal

2.

Ratification


-Requires ¾ vote of all its members 2.

Constitutional convention

-a separate body the members of which are elected Article XVII Sec. 3- ―The Congress may, by a vote of 2/3 of all its Members, call a constitutional convention, or by a majority vote of all its Members, submit to the electorate the calling of such convention‖ 2 ways: a.

Congress directly calls a CONCON by 2/3 vote of all its members.

b.

The issue of calling a CONCON may be submitted to the people in a plebiscite by majority vote of all members of Congress.

3.

People‘s initiative on the Constitution (RA 6735)

Article XVII, Sec. 2- ―Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least 12 percentum of the total number of registered voters, of which every legislative district must be represented by at least 3 percentum of the registered voters therein. No amendment under this section shall be authorized within 5 years, following the ratification of this Constitution or oftener than every 5 years thereafter. The Congress shall provide for the implementation of the exercise of this right‖. *This applies only to amendments not revisions. *REQ: A petition signed by at least 12% of the total number of registered voters therein of which every legislative district must be represented by at least 3% of registered voters therein.

Q. Is the provision on people‘s initiative (Art XVII, Sec. 2) self executing? A.

No. Note the second sentence says- ―The Congress shall provide for the implementation of the exercise of this right.‖ Thus Congress should enact a law implementing this provision.

Q. Has Congress enacted such law? A. Yes. Congress enacted a law RA 6735: Initiative and Referendum Act.

*People‘s Initiative on the Constitution is limited only to proposing amendments not revisions. RATIFICATION *Any proposed change must be submitted to the people in a plebiscite not a referendum. *Article XVII, Sec. 4- ―Any amendment to or revision of this Constitution under Sec. 1 hereof (Con Ass) shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than 60 days not later than 90 days after the approval of such amendment or revision.

3 SYSTEMS OF INITIATIVE: 1.

Initiative on the Constitution

2.

Initiative on Statutes

―Any amendment under Sec. 2 hereof (Con Com) shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than 60 days nor later than 90 days after the certification by the Comelec of the sufficiency of the petition‖.

3.

Initiative on Local Legislation

CHA-CHA NOT ALLOWED

SANTIAGO VS. COMELEC (re: Initiative on the Constitution) *The right of the people to directly propose amendments to the Constitution through the system of initiative would remain entombed in the cold niche of the Constitution until Congress provides for its implementation.

*Article XVII, Sec. 2 remains to be non self executing. The implementing law was declared unconstitutional. (Santiago vs. Comelec) *People‘s initiative is limited only to amendments. DOCTRINE OF STATE IMMUNITY FROM SUIT

*RA 6735 miserably failed to satisfy the requirements in subordinate legislation in so far as initiative to propose amendments to the Constitution is concerned.

Article XVI, Sec. 3- ―The State may not be sued without its consent.‖ Q. What if the Constitution does not provide for state immunity?

*If Congress intended to fully provide for the implementation of the initiative on amendments to the Constitution, it could have provided for a subtitle therefore, considering that in the order of things, the primacy of interest, or hierarchy of values, the right of the people to directly propose amendments to the Constitution is far more important than the initiative on national and local laws.

A. Through the DOCTRINE OF INCORPORATION (Article II, Sec. 2), the Philippines have adopted the generally accepted principles of international law as part of the law of the land. State immunity from suit is a generally accepted principle of international law. Hence we are bound by it. Q. Ethical basis?

*SC declared RA 6735 inadequate to cover the system of initiative on amendments to the Constitution and have failed to provide a sufficient standard for subordinate legislation (there is undue delegation of power to Comelec). To this extent, RA 6735 is unconstitutional. *Article XVII, Sec. 2 remains non self executing.


A. ―There can be no legal right against the authority which makes the law on which the right depends‖. (Justice Holmes) Q. Does the Doctrine of State Immunity form Suit apply also to foreign agreements?

A. Yes. We are bound by the DOCTRINE OF SOVEREIGN EQUALITY. All states are sovereign equals. An equal may not assume jurisdiction over another equal. Otherwise it will unduly vex the peace of nations. This is another generally accepted principle of international law as expressed in the Latin maxim par in parem non habet imperium.

A. No. It will be dismissed for lack of cause of action. He failed to exhaust all administrative remedies provided for by law under CA 327 as amended by PD 1445.

Q. Can you sue the State?

Ex. Article 2180, NCC- ―The State is responsible xxx when it acts though a special agent xxx.‖

A. A State may not be sued without its consent. Hence, you can actually sue the State, for as long as the State gives its consent. Q. How does a State waive its immunity from suit?

2. SPECIAL LAWS

Ex. Article 2189, NCC- ―Provinces, cities and municipalities shall be liable for damages for the death of, or injuries suffered by any person by reason of the defective condition of roads, streets, bridges, public buildings, and other public works under their control or supervision.

A. Either EXPRESSLY or IMPLIEDLY. TEOTICO VS. CITY OF MANILA EXPRESSLY: Through the enactment by Congress of a general law or special law. Q. May the Solgen validly waive immunity from suit? A. No. A mere lawyer of the government cannot validly waive immunity from suit. Only the Congress can. (Republic vs. Purisima) *Waiver of immunity constitutes a derogation of sovereignty. Hence, it is always construed strictly or strictissimi juris.

*City of Manila contends that it cannot be held liable under its charter. *SC held that the provision in the charter is a general provision in a special law. On the other hand, Article 2189 is a special provision found in a general law. A special provision found in a general law prevails over the general provision found in the charter of the City of Manila. City of Manila is liable. KILATKO VS. CITY OF DAGUPAN *City of Dagupan contended that the manhole is found in the national road.

1. GENERAL LAW Ex. Act No. 3083- applies to any money claims arising from contracts with the government whether express or implied.

*SC held that the ownership of the road is immaterial. Even if it is a national road, the LGU is liable. Article 2189 merely requires supervision over the maintenance of the national road. City of Dagupan has supervision. Hence, liable.

-must be correlated with COMMONWEALTH ACT 387 as amended by PD 1445 or the GENERAL AUDITING LAW- any money claim arising from contract with the government whether expressed or implied must first be presented to COA and only when COA refuses payment that a party can sue.

Ex. Sec. 24, Local Government Code- ―Liability for Damages- Local government units and their officials are not exempt from liability for death or injury to persons or damage to property.‖ Ex. Charters of GOCC- GSIS, DBP, LBP

Q. Where? *Charter-special law creating GOCC A. SC. Decisions of COA are reviewable by SC via petition for certiorari. (DAR vs. NLRC, J. Vitug) Q. A contract was entered into with DPWH for the construction of roads. When the roads were finished, the contractor was not paid. Contractor sued the government before the RTC. Will the suit prosper?


*The provision in the charter on whether it may sue or be sued is an express waiver by special law. IMPLIEDLY-2 ways:

1.

When the State itself commences litigation, thereby opening itself to counterclaim.

*A state may be said to have descended to the level of an individual and thus deemed to have tacitly given its consent to be sued only when it enters into business contracts.

Ex. Government sued A and A filed an answer with a counterclaim. The government cannot ask for the dismissal of the counterclaim on the ground of state immunity from suit. Otherwise, it would be the height of injustice.

*The purpose of the wharves is the defense of US troops and of the Philippines. Defense of the state is of the highest order and hence, is jure imperii.

2.

*Case was dismissed because there was no waiver.

When the State enters into a contract with private party.

*Here, the government is deemed to have gone down into the level of a private entity; there is parity now with the contracting parties; therefore, it is deemed to have waived its immunity from suit. *This rule used to be absolute. (US vs. Lyons) *However, this rule is no longer absoluteUS VS. RUIZ *This involved the construction of wharves in Subic Bay at the time Subic was still under the US pursuant to a treaty. *Contractor was not paid so he sued the Subic Naval Authorities. *Subic Naval Authorities moved to dismiss invoking State Immunity from Suit. *On the other hand, the contractor contends that the State entered into a contract (relying on the old rule). SC: The traditional rule of immunity exempts a state from being sued in courts of another state without its consent or waiver. This rule is a necessary consequence of the principle of independence and equality of states. However, rules of international law are not petrified; they are constantly developing and evolving. And because the activities of the states have multiplied, it has been necessary to distinguish them between sovereign and governmental acts (jure imperii) and private, commercial and proprietary acts (jure gestionis). The result is that state immunity now extends only to acts jure imperii. The restrictive application of state immunity is now the rule in the US, UK and other states in Western Europe.

*Not all contracts are deemed to be a waiver of state immunity; must distinguish between: ACTA JURE IMPERII: contracts entered into by the government in its sovereign capacity; no waiver of state immunity from suit. ACTA JURE GESTIONIS: contracts entered into by the government in its commercial and proprietary capacity; there is waiver of state immunity from suit. (Restrictive Doctrine of State Immunity from Suit) Q. In the Ruiz case, can the contractor invoke Act No. 3083? A. No. Because Act No. 3083 waives the immunity of the Philippine government only; not of other governments. Q. What is the remedy of the contractor? A. Under international law, he will have to convince his state through the assistance of the Department of Foreign Affairs to take his case up with the other state. Q. Raintree contracted with the Armed Forces of the Philippines for the supply of ponchos to be used by the soldiers. Raintree was not paid. Can Raintree sue? A. Yes, under Act No. 3083. This is a money claim arising from contract. There is no need to invoke implied waiver, since there is already an express waiver. US VS. GUINTO *A Filipino cook in a restaurant inside Camp John Hay poured urine into the soup stock used in cooking the vegetables served to the customers. *He was dismissed.


*He filed a complaint for damages against the US Air Force Recreation Center at Camp John Hay who operates the restaurant.

of governmental function (repair of municipal roads). This is a case of DAMNUM ABSQUE INJURIA (Damage without injury).

*The latter invoked the Doctrine of Immunity from Suit and moved to dismiss.

Q. What if the dump truck was then hauling lumber for the repair of a public market instead of gravel for the repair of municipal road?

SC: The restaurant services offered partake of the nature of a business enterprise undertaken by the US government in its proprietary capacity. Such services are not extended to the American servicemen for free as a perquisite of membership in the Armed Forces of the US. Neither does it appear that they are exclusively offered to these servicemen; on the contrary, it is well known that they are available to the general public as well, including the tourists in Baguio City, many of whom make it a point to visit John Hay for this reason. All persons availing themselves of this facility pay for the privilege like all other customers in ordinary restaurants. Although the prices are concededly reasonable and relatively low, such services are undoubtedly operated for profit as a commercial and not a governmental activity.

A. The operation of a public market is a proprietary function. It is classified as a business enterprise of the local government. Hence, the municipal government would then be in the performance of a proprietary function. As such, it would not be a valid defense to liability. TORIO VS. FONTANILLA *The holding of a town fiesta even if the purpose is to commemorate a religious or historical event of the town is in essence an act for the special benefit of the community and not for the general welfare of the public performed in pursuance of a policy of the state. xxx It is a proprietary activity. Thus, the municipality may be held liable.

*The case was remanded to the Labor arbiter. There is waiver of immunity. EXECUTION OF JUDGEMENT *SUABILITY VS. LIABILITY *The circumstance that a state is suable does not necessarily mean that it is liable. A state can never be held liable if it does not first consent to be sued. SUABILITY is just a matter of a state giving its consent to be sued. *LIABILITY is a matter of applicable law and circumstance of the case. Liability is not conceded by the mere fact that the state has allowed itself to be sued. When the state does waive its sovereign immunity, it is only giving the plaintiff the chance to prove, if it can, that the defendant is liable.

Q. Assume that you are allowed by the State to sue. After trial, judgement was rendered in your favor, holding the State liable. Judgement thereafter attained finality. Can you garnish or levy government funds to execute the judgement? A. No. It will paralyze the operations of the government. Waiver extends only up to the rendition of judgement. Execution requires another waiver. The disbursement of public funds requires an appropriate appropriation law. Q. Remedy?

*Waiver merely gives the claimant the opportunity to prove that the state is liable.

A. To make representation with the proper legislative authority for the enactment of an appropriation law necessary to satisfy the judgement.

MUNICIPALITY OF SAN FERNANDO LA UNION VS. JUDGE FIRME Q. What if the legislative authority refuses to enact the law? *San Fernando owned a dump truck being driven by its official driver, while hauling gravel, it collided with a jeep, killing the latter‘s passenger. The heirs sued the municipality for damages. The municipality moved to dismiss on the ground of immunity of state from suit. Without resolving the motion, Judge Firme proceeded to resolve the case and held the municipality liable since its charter expressly provides that it may sue and be sued. SC: Suability is not the same as liability. Municipality can invoke defensesthat at the time the accident happened, it was engaged in the performance


A. Go to the courts and ask for MANDAMUS to compel the legislative authority to enact the required law. True, the duty to appropriate is discretionary. The exception however, as in this case, is when there is already a money judgement against the government, the discretionary duty becomes ministerial. The state must be the first to respect and obey the decisions of the Courts. (Municipality of Makati vs. IAC) SUITS AGAINST GOVERNMENT AGENCIES AND INSTRUMENTALITIES

Distinguish: 1.

INCORPORATED AGENCIES: These are agencies with separate charters creating them.

-They have personality separate and distinct from the Philippine government. -The test of suability will depend whether or not its charter allows it to sue and be sued.

EXCEPTIONAL CASES: The doctrine of State Immunity from Suit cannot serve as an instance to perpetuate injustice on a citizen.

Ex. SSS, GSIS, PCSO, Phil. Postal Corporation 2.

UNINCORPORATED AGENCIES: charter.

These

*This case does not qualify as a suit against the State. xxx While the Republic in this case is sued by name, the ultimate liability does not pertain to the government. Although the military officers and personnel were discharging their official functions when the incident occurred, their functions ceased to be official the moment they exceeded their authority. Based on the commission findings, there was lack of justification by the government forces in the use of firearms. Moreover, the members of the police and military crowd dispersal units committed a prohibited act under BP 180 as there was unnecessary firing by them in dispersing the marchers.

agencies

have

no

*However, this should not be invoked indiscriminately because the circumstances obtaining in the following cases are peculiar.

-They do not have separate personality.

AMIGABLE VS. CUENCA

-A suit against them is really a suit against the government.

*Amigable owned a lot in Cebu City. There is no annotation in favor of the government in the TCT. Then without prior appropriation or negotiated sale, the government used a portion of the said lot for the construction of roads. Amigable then filed a complaint against the Republic, and Cuenca, in the latter‘s capacity as Commissioner of Public Highways.

-Test of suability depends upon whether or not it is performing a governmental or proprietary function. SUIT AGAINST PUBLIC OFFICIALS Q. When do you consider a suit against public officials as a suit against the state itself? A. The suit must be regarded as one against the State where the satisfaction of judgement against the public official concerned will require the State itself to perform a positive act such as appropriation of the amount necessary to pay the damages awarded to the plaintiff. (LANSANG VS. GARCIA) *The official was charged in his official capacity in the performance of official duties. *In this case, the official was acting only as an agent of the State. *However, this rule does not apply if: -Acts were unlawful or illegal -Acts were done in a personal capacity REPUBLIC VS. SANDOVAL


SC: Where the government takes away property from a private landowner for public use without going through the legal process of expropriation or negotiated sale. The aggrieved party may properly maintain a suit against the government without thereby violating the doctrine of governmental immunity from suit without its consent. REASON-MINISTERIO VS. CFI OF CEBU *The doctrine of governmental immunity from suit cannot serve as an instrument of perpetration of injustice on a citizen. Had the government followed the procedure indicated by the governing law (Rule 87) at the time, a complaint would not have been filed by it and only upon payment of compensation fixed by the judgement or after tender of the party entitled to such payment of the amount fixed. May it ―have the right to enter in and upon the land so condemned, to appropriate the same to the public use defined in the judgement.‖ *Actually, in Amigable and Ministerio cases there is an implied waiver. This implied waiver lies in the failure to commence the proper action. The action filed by the petitioners amount to a counterclaim, had the government fled

the proper action. It only became a petition because the government did not follow the legal procedure.

citizens. [This is the first time that there came to be Filipino citizens. It was an ―en masse citizenship‖ because of a change of sovereignty].

CITIZENSHIP

(2) Rosalind is a Filipino- Philippine law on citizenship adheres to the principle of jus sanguinis, where a child follows the nationality of the parents regardless of the place of his/her birth. Hence, Rosalind‘s father is a Filipino, she is a Filipina. Her being born in Australia is not tantamount to her losing her Philippine citizenship. Even if Australia follows jus soli, it only results to her possessing dual citizenship.

(ARTICLE IV, 1987 CONSTITUTION) The following are the citizens of the Philippines (Sec. 1) 1. Those who are citizens of the Philippines at the time of the adoption of the 1987 Constitution. Q. When was the 1987 Constitution adopted? A. 02 Feb. 1987- at the time of the plebiscite *Not 11 Feb. 1987=When Pres. Aquino declared its ratification.

(3) Effect of holding an Australian passport- mere holding of an Australian passport does not mean renunciation of Philippine citizenship. In order to lose Philippine citizenship by renunciation, such renunciation must be express—the person renouncing must perform a positive act. (See Mercado vs. Manzano and Aznar vs. Comelec) 3. Those born before 17 January 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority

2. Those whose fathers or mothers are citizens of the Philippines. *Note that the provision says ―OR‖- not ―and‖

3 Requisites for the application of this provision: (1) They were born before 17 Jan. 1973.

*This means that as long as 1 of your parents is a Filipino, you are a Filipino.

(2) Their mother is a Filipino.

*This is in accordance with our adherence to the principle of jus sanguinis.

(3) They elect Philippine citizenship upon reaching the age of majority.

*This results in complications when the country where you are born applies the principle of jus soli.

*History of the provision:

*Complications arise with respect to the matter of dual allegiance. (See Sec. 5) VALLES VS. COMELEC (337 SCRA 543, 09 Aug. 2000) *Rosalind Lopez was born in 1934, in Australia to a Filipino-father, who was born in 1879, and an Australian-mother. When she came to the Philippines, she was holding an Australian passport and was registered as an alien in the BID. Then, Rosalind ran for governor. SC: Rosalind is a Filipino citizen. (1) Her father is a Filipino- Her father is a Spanish subject. In 1898, when the Spanish ceded the Philippines to the US, under the Jones Law and the Philippine Bill of 01 July 1902, all inhabitants of the Philippines who were Spanish subjects are deemed to be Philippine


-Under the 1935 Constitution, legitimate minor children follow the citizenship of their father. -Thus one with an alien father and a Filipina, mother, would, during minority, be an alien. -Hence, he is given, upon reaching the age of majority, the option to elect. -Note that this is the reason why the provision applies only to those born of ―Filipino mothers‖. -One with a Filipino-father and an alien mother would still be a Filipino, since he follows his father‘s citizenship.

*These are Natural-Born Citizens (See Sec. 2) *When Should Election Be Made- ―Reasonable Time from Reaching Age of Majority‖—RE: Application for Admission to the Philippine Bar, Vicente D. Ching (Bar Matter No. 914, 01 Oct.1999) *Ching was born in 1964, of Chinese father and Filipina mother. Ching now seeks to elect Philippine citizenship so he can be admitted to the Philippine Bar. SC: The 1935 Constitution only states that Philippine citizenship should be chosen upon age of majority. CA 625 states the child should be given a reasonable time to elect Philippine citizenship. This reasonable time has been construed to be 3 years upon reaching the age of majority. Here, Ching seeks to elect only 14 years after reaching the age majority. This is way beyond the contemplated period for electing Philippine citizenship. One who is privileged to elect Philippine citizenship has only an inchoate right to such citizenship—as such, he should avail of the right with fervor, enthusiasm and promptitude. 4. Those who are naturalized in accordance with law TECSON VS. COMELEC *FPJ was born in 1939, of a Filipino father and an American mother. His parents got married only in 1940. SC: FPJ is an illegitimate child because his parents got married only after his birth. However, the 1935 Constitution states that ―those whose fathers are citizens of the Philippines‖ acquire Philippine citizenship. Thus, it did not distinguish whether the child is legitimate or illegitimate. The rule is different when it is the mother who is a Filipino. Here, if the child is legitimate—he can elect Philippine citizenship upon reaching the age of majority. If he is illegitimate, he will follow the mother‘s citizenship. The reason for this rule is to ensure Filipino nationality of the child so as not to prejudice. Normally, since he is illegitimate, the mother would have custody and have parental authority.

1. Those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship. 2. Those who elect Philippine citizenship in accordance with par (3), Sec. 1 -In this case, the person has to perform an act to perfect his Philippine citizenship. -Thus, this constitutes an exception to the 1 Natural-Born Citizens.

kind of

BENGSON III VS. HRET (GR 142840, 07 May 2001) *Cruz lost his Philippine citizenship when he rendered service in the US Armed Forces, but re-acquired it through repatriation under RA 2630. He then ran, and won, as Congressman. His qualification was questioned on the ground that he is not a natural-born citizen. SC: He is a natural-born citizen. (1) Effect of Repatriation—Repatriation results in the recovery of the original nationality. Thus, a naturalized Filipino who lost his citizenship will be restored to his prior status as a naturalized Filipino. On the other hand, if he was originally a natural-born citizen before he lost his citizenship, he will be restored to this former status as a naturalborn Filipino. (2) Kinds of Citizens under the Constitution—There are only 2 classes of citizens under the Constitution—(a) natural-born and (b) naturalized in accordance with law. A citizen who is not a naturalized Filipino—one who did not undergo the process of naturalization—is a natural-born Filipino. Noteworthy is the absence in the enumeration of a separate category for persons who, after losing Philippine citizenship, subsequently reacquires it. This is because such whether such persons are natural-born or naturalized depends on the reasons for the loss of their citizenship and the mode prescribed by the applicable law for the reacquisition thereof. Marriage to foreigners—Art. IV, Sec. 4 *‖Citizens of the Philippines who marry aliens shall retain their citizenship, unless by their act or omission they are deemed, under the law, to have renounced it.‖

*Natural-Born Citizens (Sec. 2) *History of the provision: 2 Kinds of Natural-Born Citizens: -This provision was carried over from the 1973 Constitution.


st

-In the 1935 Constitution, there is no similar provision.

Modes to Acquire Philippine Citizenship:

-Thus, women were prejudiced—when they marry a foreigner, they lose their Filipino citizenship.

1. Birth 2. Naturalization

Ex. Biel vs. Director of Public Schools Loss and Re-Acquisition of Philippine Citizenship -A public School teacher was removed from her position because she married her Chinese lover. -However, if the woman just maintains a live-in relationship with a foreigner, she does not lose her Philippine citizenship—there is no marriage. -Thus, they are better situated than those who contracted marriage with foreigners.

-Art. IV, Sec. 3—―Philippine citizenship may be lost or reacquired in the manner provided by law‖. Ways by which Philippine Citizenship may be Re-Acquired: 1. Naturalization 2. Repatriation

-Absurd! Naturalization vs. Repatriation *In relation to Sec. 1 (3) -Under the 1935 Constitution, the children of a Filipina-mother and an alienfather who had a common law relationship are Philippine citizens.

1. As to Nature

-No need to elect. Q. Why? A. Being illegitimate children, they follow the citizenship of their mothers, who remain to be Filipinos since they are not married to aliens. -This is another absurdity. 2. As to process

Naturalization

Repatriation

-A mode of acquisition and reacquisition of Philippine citizenship.

-A mode of reacquisition of Philippine citizenship.

*As a mode acquisition- CA governs

of 473

*As a mode of acquisitionCA governs.

re63

Thus: 1. In 1970, Filipina married a foreigner

-Very cumbersome and tedious.

-Filipina loses Philippine citizenship. -The 1935 Constitution had no provision similar to Art. IV, Sec. 4

*Process is simple—requires only:

2. In 1975, Filipina married a foreigner

1. Take oath of allegiance

-Filipina retains Philippine citizenship.

2. Registration with the Civil Registry

-The 1973 Constitution had a provision similar to Art. IV, Sec. 4.

*Available when the loss of citizenship is due to:


-Simpler process

(1.) Desertion of the Armed Forces (CA 63)

(3.) Service in the US Armed Forces (RA 2630)

naturalized citizens who maintain their allegiance to their countries of origin even after their naturalization. Hence, the phrase ―dual citizenship‖ in RA 7160, Sec. 40 (d) must be understood as referring to ―dual allegiance‖. Hence, persons with mere dual citizenship do not fall under the disqualification.

*See Bengzon III vs. HRET

Situations Where Dual Citizenship Arises:

(4.) Marriage of Filipino woman to an alien, political or economic necessity (RA 8171)

a. Those born of Filipino fathers and/or mothers in foreign countries which follow the principle of jus soli.

3. Direct Act of Congress

b. Those born in the Philippines of Filipino mothers and alien fathers, if by the laws of their father‘s country, such children are citizens of that country.

(2.) Service in the Armed Forces of Allied Forces during WW 2 (RA 965)

*Dual Allegiance—Art. IV, Sec. 5 *‖Dual allegiance of citizens is inimical to the national interest and shall be dealt with in accordance with law.‖

c. Those who marry aliens if by the laws of the latter‘s country the former are considered citizens, unless by their act or omission they are deemed to have renounced their Philippine citizenship.

Q. Is this provision self executing?

Dual Allegiance vs. Dual Citizenship

A. No. It says ―shall be dealt with by law‖. It means a future law. Q. Is there now a law that prohibits dual allegiance?

Dual Allegiance

Dual Citizenship

1. As to how it results

-A situation where a person simultaneously owes, by some positive act, loyalty to 2 or more states.

-Arises when, due to the concurrent application of the different laws of 2 or more states, a person is simultaneously considered a national by said states.

2. As to voluntariness

-Voluntary.

A. Yes. RA 7160, Sec. 40 (d) (Local Government Code) ―The following are disqualified from running for any elective local position: xxx (d) Those with dual citizenship‖ (See Mercado vs. Manzano) MERCADO VS. MANZANO (307 SCRA 630, 26 May 1999)

Involuntary.

*Edu Manzano was born in the US, of Filipino parents. In 1998 he ran for vice-mayor of Makati. His qualification was challenged. Note that RA 7160, Sec. 40 (d) disqualifies those with dual citizenship from running for local elective office.

*RA 9225—Dual Citizenship Law (Citizenship Retention and Re-Acquisition Act of 2003)

SC: He is qualified to run. (1) Manzano has dual citizenship—since his parents are Filipinos, he is a Filipino; since he was born in the US, he is also a US citizen. Thus, he has dual citizenship.

RULE: Natural-born Filipinos who lost their Philippine citizenship by naturalization as citizens of a foreign country shall re-acquire/retain their Philippine citizenship upon taking the Oath of Allegiance. (Sec. 3, RA 9225)

(2) Dual Allegiance is Prohibited, Not Dual Citizenship—what is prohibited by the Constitution is dual allegiance, not dual citizenship. The concern of the Constitutional Commission was not with dual citizens per se, but with

Effect of Re-Acquisition on Civil and Political Rights- the following rights can be exercised, subject to certain conditions:


1. Right to vote- RA 9225 Sec. 5 (1) - must meet requirements of Sec. 1, Art. V and of RA 9189 (Overseas Absentee Voting Act of 2003) 2. Elective Public Office – RA 9225 Sec. 5 (2) – must renounce foreign citizenship before any public officer authorized to administer oath. -Done at the time of the filing of the certificate of candidacy. -Thus, he will lose his dual citizenship- will have just 1 citizenship. 3. Appointive Public Office – RA 9225 Sec. 5 (3) – must also renounce.

Structure of Government

3 Parts of a Written Constitution: (1) Constitution of sovereignty – This refers to thee provisions pointing out the modes or procedure in accordance with which Formal changes in the constitution may be made. Ex:

Article XVIII – ―Amendments or Revisions‖

4. Practice of Profession – subject to guidelines of proper regulatory agency. nd

-Art. 12, Sec. 14, 2 par., 1987 Constitution- ―The practice of all professions in the Philippines shall be limited to Filipino citizens, save in cases prescribed by law.‖ Q. X was born in the USA on Jan. 10, 1973, of a Filipino mother and American father. He studied and worked in the Philippines. Can he run for Mayor? A. (1) Under the 1935 Constitution, which was governing at the time of X‘s birth, he should elect Philippine citizenship upon reaching the age of majority. (2) Under RA 9225, he is also a dual citizen—hence, he should first renounce his American citizenship.

(2) Constitution of Liberty – the series of prescriptions setting forth the fundamental civil and political rights of the citizens and imposing limitations on the power of the government as a means of securing the enjoyment of those rights. Ex:

(3) Constitution of Government – provides for a structure and system of government; refers to the provisions outlining the organization of the Government, enumerating its powers, laying down certain rules relative to its administration and defining the electorate. Ex:

*Res Judicata in Citizenship Cases GR: No res judicata in cases of citizenship. EXCEPTION: Burca vs. Republic (51 SCRA 248, 1973)

Article III – Bill or Rights

Article VI – Legislative Department Article VII – Executive Department Article VIII – Judicial Department Article IX – Constitutional Commissions

When the following requisites concur: 1. When the person‘s citizenship is raised as a material issue in a controversy where said person is a party;

Doctrine of Separation of Powers in a presidential type of government

2. When the Solicitor General or his authorized representative took active part in the resolution thereof; and

The 3 great powers are distributed among the 3 great branches of government:

3. When the finding on citizenship is affirmed by the SC.

Legislative power – Legislative branch / Congress


Article VI, Sec 1 – ―The legislative power shall be vested in the congress of the Philippines…”

GR – ―Potesta delegata non potest delegari‖ – Power delegated may no longer be delegated.

This is also called the POWER OF THE PURSE. XPNs: Instances of permissible delegation – PETAL Executive power – Executive branch / President Article VII, Sec 1 – ―The executive power shall be vested in the President of the Philippines…‖ This also called the POWER OF THE SWORD

Delegation to the People under the systems of initiative and referendum (plebiscite, Art. VI, Sec 1) Delegation to the President of Emergency powers (Art VI, Sec 23) Delegation to the President of Tariff powers (Art VI, Sec 28[2]) Delegation to Administrative Bodies

Judicial power – Judiciary / Supreme Court

Delegation to Local governments (Art. X)

Article VIII, Sec 1 – ―The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.‖ There must always be an EXPRESS delegation! (by Law/Constitution) This is also called the POWER OF JUDICIAL REVIEW

The legislative and the executive branches are called the POLITICAL BRANCHES.

Q. What are the requisites before emergency powers may be delegated to the President? A. Under Article VI. Section 23. there are four:

Corollary to the principle of separation of powers: There must be a war or other national emergency. The delegation shall be for a limited period only Principles of checks and balances The delegation must be pursuant to a declared national policy Each branch of the government is a check of the others so that power will not be concentrated which might lead to abuse and irreparable damage.

The delegation is subject to such restrictions and limitations as Congress may prescribe.

This allows 1 department to resist encroachments upon its prerogatives or to rectify mistakes or excesses committed by the other departments. Ex: veto power of the President. Principle of non-delegation of Powers


 The power is delegated from the Congress to the President (David vs Arroyo)

Q. What is meant by delegation to administrative bodies?

The standard will guide the delegate in the exercise of the delegated power which standards must be determinate/determinable.

A. It is the delegation of quasi-legislative powers to administrative agencies. Q. What is a sufficient standard? refers to the rule making power or power of subordinate legislation or power to promulgate rules and regulations to implement a given law/legislative policy.

A. It is one that defines legislative policy, marks its limits, maps out its boundaries and specifies the public agency to apply it. Ex: (1) Power to organize agencies was delegated to the President

Operative word, ―or‖ meant equivalent terms Standard: to streamline the bureaucracy for economy and sufficiency. The power to ENACT laws still belongs to Congress. (2) Power to issue franchises delegated to LTFRB Standard: For public convenience and security  Tests of valid delegation vs. abdication of power Undue

delegation

to

the

delegate Completeness Test

The standards need not be found in the law delegating the power. Instead, standards may be found in other laws – what is important is that the standards are determinate or at least determinable (Chong Bian vs Ci-Bos)

The law delegating the power must be complete in itself in the sense that the body on whom the power is delegated must have no discretion to exercise the power but to enforce it.

If the delegation meets the tests, it is valid.

The law must be complete in all its terms and conditions, such that there is nothing more to be done by the body but to enforce it.

If there is undue delegation, it is no longer delegation of power but abdication of power in favor of the delegate, which violates the doctrine of separation of powers.

The law must set forth the policy to be executed, carried out or implemented by the delegate.

What is prohibited is undue delegation or a delegation running riot.

Ratio: You cannot expect the Congress to anticipate all.

The delegate must not be authorized to fill in the gaps. Article VI – LEGISLATIVE DEPARTMENT Legislative Power Sufficiency of Standards Test The law must provide for standards that are determinate or at least determinate, which will define the limits of a delegate‘s authority.


Article VI, Sec 1: ―The legislative power shall be vested in the congress of the Philippines, which shall consist of a Senate and a House of

Representatives, except to the extent reserved to the people by the provisions on initiative and referendum.‖

This is no self-executing.

Q. Has the Congress enacted a Law? Q. What power is vested in Congress? A. Legislative Power under Article VI, Sec. 1 (The Power of the Purse).

A. YES. R.A. 6735 (Initiative and Referendum Law) is the implementing provision of Sec 1 Art VI, 1987 Constitution.

Q. Is legislative power exclusively vested in Congress?

3 kinds of Initiative under RA 6735:

A. NO. Unlike in the 1935 constitution where the legislative power is exclusively vested in Congress, under the 1987 constitution, there is a reservation made to the people (initiative and referendum). (Art VI, Sec1).

Initiative on the Constitution declared unconstitutional (Santiago vs. COMELEC)

The legislative power is not exclusively vested in Congress! It is vested in: Congress – made up of 2 houses:

Initiative on Statutes

Senate

Implemented Article VI. Sec 1

House of Representatives

Refers to petitions proposing to enact a national legislation

We have a Bicameral Congress

Valid

The houses are co-equal bodies; hence the terms ―upper house‖ and ―lower house‖ are inaccurate! Initiative on Local Legislation Bicameral Conference Committee refers to petitions proposing to enact, amend, or repeal local ordinances. See Phil. Judges Association vs. Hon. Prado, and Valid. Tolentino vs. Secretary of Finance. Bar Q: What is initiative? What is Referendum? ―…to the extent reserved to the People by initiative and referendum‖ Article VI, Sec. 32 – The Congress shall, as early as possible, provide for a system of initiative and referendum, and the exceptions there from.


A: Initiative is the power of the people to propose amendments to the Constitution on to propose and enact legislations through an election for the purpose (Sec 3(a), RA6735). Referendum is the power of the electorate to approve or reject a legislation through an election called for the purpose (Sec. 3©, RA6735).

Q: May the President enact laws? A: NO. Legislative power is vested in Congress. Legislative power includes the power to ENACT, AMEND, or REPEAL. The power vested on the President is the EXECTIVE POWER or the power to IMPLEMENT laws. PRESIDENT’S PROCESS

PARTICIPATION

IN

THE

Art VI, sec 27 – ―Every bill passed by Congress shall before it becomes a law, be presented to the president. If he approves the same, he shall sign it…‖ The president performs the last operative act for a bill to become a law.

LAW-MAKING

Q: Does the President have any participation in the Law-making process?

When the president prepares a budget which is the basis of the GENERAL APPROPRIATIONS ACT.

When he exercises his veto power

Art VII, Sec 22 – ―The president shall submit to the congress x x x as basis of the general appropriations bill a budget for expenditures and sources of financing, including receipts from existing and proposed revenue measures.‖ 

Article VI, Sec 27. – ―Every bill passed by Congress shall before it becomes a law, be presented to the president. If he approves the same, he shall sign it; otherwise, he shall veto it…‖

NON-LEGISLATIVE POWERS OF CONGRESS (9): [IBAWI PA CE]

Yes, in the following instances: [SBUVS]

When the president vetoes a bill, that bill doesn‘t become a law.

When he calls for a special session

Investigative power / power to conduct investigation (inquiries in aid of legislation) Art VI, Sec 21 – “The senate or the house of representatives or any of its respective committees may conduct inquiries in aid of legislation or in accordance with its duly published rules of procedure…”

Art VI. Sec 15 – ―The president may call a special session at any time‖ Power to declare the existence of a state of War In effect, he will initiate the process When the president certifies as the urgency of the bill to meet a public calamity or emergency. Art VI, sec 26 (2) ―No bill passed by either house shall become a law unless it has passed three (3) readings on separate days x x x except when the president certifies as to the necessity of its immediate enactment to meet a public calamity or emergency.‖ The president hastens the process by dispensing with 3 separate readings on 3 separate days rule.

When the president signs a bill that becomes a law


Art VI, Sec 23 – “The congress by a vote of 2/3 of both houses in joint session assembled, voting separately, shall have the sole power to declare the existence of a state of war.” [*then based on such declaration, delegate emergency powers to the President]

Power to confirm a presidential appointments [through commission on Appointments] Art VII, Sec 16 – “The president shall nominate and with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this constitution.”

Senator Power to punish for contempt - Incidental to the power to conduct inquiries in aid of legislations.

Power to impeach and to try cases of impeachment As a prosecutorial body: Art XI, Sec 3(1) – ―The House of Representatives shall have the exclusive power to initiate all cases of impeachment. As an impeachment Court: Art XI, Sec 3(6) – ―The senate shall have the sole power to try and decide all cases of impeachment x x x ― Power to judge election contests involving their members through the Electoral tribunal Art VI, Sec 17 – “The senate and House of Representatives shall each have electoral tribunals which is the sole judge of all contests relating to the election returns and qualifications of their respective members x x x” Power to concur in Amnesty Proclamation

Representative

(1) Citizenship

Natural born

(2) LIteracy

Able to read and write

(3) Voter

Registered voter

(4) Age

35 years of age on the day of election

25 years of age on the day of election

(5) Residence

2 years residence

1 year in the district he is representing.

(6) Term

6 years, 2 consecutive termlimit

3 years; 3 consecutive term-limit.

Art VII, Sec 4(4) – “Upon receipt of the certificates of canvass, the president of the Philippines shall, not later than 30 days after the day of the election, open al certificates in the presence of the Senate of the House of Representatives in joint and public session, and the Congress, upon determination of the authenticity and due execution thereof in the manner provided by law, canvass the votes.”

Art VIII, Sec 19(2) – ―He shall have the power to grant amnesty with the concurrence of a majority of all the members of the Congress‖ Composition of CONGRESS Senate – 24 senators elected at large; Power to propose amendments to, or revisions of the constitution, when acting as constituent assembly Art XVII, Sec 1(2) – “Any amendment to, or revision of, this constitution may be done by: (1) The congress, upon a vote of ¾ of all its members; x x x”

Term: 6 years Term limit: 2 Consecutive terms House of Representatives Term: 3 years

Power to act as board of canvassers in presidential and vice-presidential elections.

Term limit: 3 consecutive terms Art VI, Sec 5(1) – ―The HOR shall be composed of not more than 250 members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the metropolitan manila area x x x‖


This provision is already Functus Officio!

[other sectors: fisher folks, elderly, handicapped (Sec 5, RA7941)].

Congress has the power to reapportion district every census, under

PUF – LICE – HWY – O

Art VI, Sec 5(4) –

Xpn: Religious sector

Within 3 years following the term of every census, the congress shall make a re-apportionment of legislative districts based on the standards provided in this section.‖

Party list system Implemented by RA7941 (Party-list law) Adopted the German model of the party list system

Qualifications:

1998 elections: first time we had party list election

Marcos vs. COMELEC (248 SCRA 300 [1995])

Borrowed concept from parliamentary system

In her application for candidacy, Imelda wrote ―7 months requirement‖, then amended it and wrote, ―Since birth‖. The SC decided in favor of Imelda.

See: Ang bagong-bayani-OFW labor party vs. COMELEC (June 26, ‗01 En Banc)

Q: What is the nature of the party-list system? Supreme court held that in political law, ―residence‖ is considered as ―domicile‖. Kinds of Congressmen: Art VI, Sec 5(1) – ―The HOR shall be composed of not more than 250 members, unless otherwise fixed by law, who shall be elected from legislative districts x x x and those who, as provided by law, shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations.”

A: The party-list system is a social justice tool designed not only to give more in life to the great masses of our people who have less in life, but also to enable them to become veritable (genuine/real) law makers themselves. It intends to make the marginalized and underrepresented active participants in the mainstream of representative democracy.

District representatives Party-list representatives this absorbed the sectoral representatives Art VI, Sec 5(2) – ―x x x for 3 consecutive terms after the ratifications of this constitution, ½ of the seats allocated to the party-list representatives shall be filled as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector.‖


The party list system is one such tool intended to benefit those who hae less in life. It gives the great masses of our people the genuine hope and genuine power. It is a message to the destitute and the prejudiced, and even to those in the underground (e.g. rebels), that change is possible. It is an invitation for them to come our of their limbo and seize the opportunity.

Q: Is it open to all?

A: No. It is not open to all but only to the marginalized and the underrepresented.

However, it demonstrates the clear intent of the law that NOT all sectors can be represented under the party-list system.

Allowing all individuals and groups, including those which now dominate district elections, to have the same opportunity to participate in the party-list elections would desecrate this lofty. Objective and mongrelize the social justice mechanism into an atrocious veneer for traditional politics (nose bleed!)

While political parties may participate in the party-list system, then must comply with the declared statutory policy of enabling ―Filipino citizens belonging to the marginalized and underrepresented sectors x x x to be enelcted to the HOR. They must show that they represent the interests of the marginalized and the underrepresented.

To make it open to all, without qualifications would not only weaken the electoral chances of the marginalized and the underrepresented – it also prejudices them. To allow the non-marginalized and the overrepresented to vie under the party list system would not only dilute, but also prejudice the chance of the marginalized and underrepresented – contrary to the law‘s intention to enhance it. It would gut the substance of the party-list system. Instead of generating hope, it would create a mirage. Instead of enabling the marginalized, it would further weaken them and aggravate their marginalization.

Uphold Social Justice principle – to give those who have less life, more in law.

Underground group – Rebels (p.27 3A notes)

Guidelines for screening party list participants (8) The political party, sector, organization, or coalition must represent the marginalized and underrepresented sectors identified in Sec 5, RA7941. Sec 5, RA7941 – ―x x x the sectors shall include labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals.‖ This enumeration is NOT exlusive


Sec 5, RA 7941 – ―Any organized group of persons may regilster as a party, organization, or coalition for purposes of the party-list system x x x‖ Sec 7, Art IX-C, 1987 Const. – ―No votes cast in favor of a political party, organization, or coalition shall be valid, except for those registered under the party-list system as provided in this constitution. Sec 8, Art IX-C, 1987 Const. – ―Political parties or organizations or coalitions registered under the party list system shall not be represented in the voter‘s registration boards x x x‖ Sec 5(1), Art VI, 1987 Const. – ―The HOR shall be composed of x x x and those who x x x shall be elected through a party list system of registered national, regional, and sectoral parties or organizations.

The religious sector may not be represented in the party-list system or registered as a political party. Art IX-C Sec 2(5) – ―The COMELEC shall exercise the following powers and functions x x x (5) Register x x x political parties, organizations x x x religious denomination shall not be registered. Art VI, Sec 5(2) – ―x x x from the labor, peasant urban poor x x x and such other sectors as may be provided by law, except religious sector‖ Sec 6(1), RA7941 – ―The COMELEC may x x x refuse or cancel x x x the registration of any national regional or sectoral party, organization or coalition on any of the following grounds: (1) If it is a religious sect or denomination, organization or association organized for religious purposes.

Ex: El Shaddai cannot register and participate in the party-list system The prohibition is on any religious organization registering as a political party. No prohibition against a priest running as a candidate. What is prohibited is the registration of a religious sect as a political party.

It fails to participate in the last 2 preceding elections, or fails to obtain at least 2% of the votes cast under the party list system in the 2 preceding elections for the constituency in which it has registered.

The party must not only comply with the requirements of the law; its nominees must likewise do so x x x The party or organization must not be an adjunct of, or a project organized by, or an entity funded or assisted by the government.

The nominee must also be qualified.

It must be independent of the government

Sec 9, RA 7941 – Qualifications for party list nominees

By the very nature of the party-list system, the party or organization must be a group of citizens, organized and operated by citizens.

Natural-born citizen of the Philippines Registered voter

The participation of the government or its officials in the affairs of a party-list candidate is not only illegal and unfair to others, but also deleterious to the objective of the law.

Resident of the Philippines for a perioud of not less than 1 year immediately preceding the day of the electon.

Ex: MAD – Mamamayan Ayaw sa Droga

Able to read and write Bona fide member of the party or organization which he seeks to represent for at least 90 days preceding the day of the election.

The party or organization must not be disqualified under sec 6, RA 7941: Sec 6, RA 7941 – Ground for refusal and/or cancellation of registration: It is a religious sector denomination, organization or association, organized for religious purposes;

Not only the candidate party or organization must represent marginalized and underrepresented sectors; so also must its nominees. The nominee must also represent the marginalized and underrepresented

It advocates violence or unlawful means to seek its goal; It is a foreign party or organization; It is receiving support from any foreign gov‘t, foreigh political party, foundation, organization, whether directly or through any of its officers or rd members or indirectly through 3 parties for partisan election purposes. It violates or fails to comply with laws, rules or regulations relating to elections;

Surely, the interests of the youth cannot be fully represented by a retiree; neither can those of the urban poor or the working class by an individualist.

While lacking a well-defined political constituency, the nominee must likewise be able to contribute to the formulation and enactment of appropriate legislation that will benefit the nature of the whole.

It declares untruthful statements in its petition; 4 inviolable parameters to determine the winners in a Party-list election It has ceased to exist for at least 1 year;


(As mandated by the Constitution and RA7941) Question! 



Bar

A: Yes. The votes for the disqualified parties should be excluded. (Ang Bagong Bayani OFW vs. COMELEC [June 25, 2003 En Banc])

See VETERANS FEDERATION PARTY vs. COMELEC (October 6, 2000 En Banc)

The twenty (20%) percent allocation The combined member of all party list congressmen shall not exceed 20% of the total membership of the HOR, including those elected under the partylist. Art VI, Sec 5(2) – ―The party-list representatives shall constitute 20% of the total number of representatives including those under the party-list. The two (2%) percent threshold Only those garnering a minimum of 2% of the total valid votes cast for the party list system are qualified to have a seat in the HOR. The base is the total votes cast for the party-list and not the total number of registered voters.

In the case of Labo vs. COMELEC, reaffirmed in the case of Grego vs. COMELEC, the court declred that the votes case for an ineligible or disqualified candidate cannot be considered stray, because this would disenfranchise the voters/majority; valid votes. However, votes cast for a notoriously disqualified candidate may be considered stray and excluded from the canvass. This does not apply to the party-list elections! Because of the express rule in Sec 10, RA 7941 – ―x x x that a vote cast for a party, sectoral organization or coalition not entitled to be voted for shall not be counted x x x‖ The LABO doctrine applies only to SINGLE ELECTIVE POST/ELECTIONS nd rd (e.g. Mayor); In the party-list system, even the 2 , 3 , etc... candidate may get seats.

See RA 7941. Concept and Bases of Congressional Oversight Functions The three (3) seat limit See MAKALINTAL vs. COMELEC Each qualified part, regardless of the number of votes actually obtained, is entitled to a maximum of 3 seats – 1 qualifying and 2 additional seats. Rationale: To avoid domination/monopoly – will go against the purpose of the party-list system. Proportional Representation The additional seats to which a qualified party is entitled to shall be computed in proportion to their total number of votes.

Q: What is the power of oversight? A: Broadly defined, the power of oversight embraces all activities undertaken by Congress to enhance its understanding of and influence over the implementation of legislation it has enacted. Clearly, oversight concerns post-enactment measures undertaken by Congress: to monitor bureaucratic compliance with program objectives; to determine whether agencies are properly administered;

Q: To determine the total votes cast for the party-list system, should the votes tallied to the disqualified candidates be deducted/excluded in computing the 2% threshold?


to eliminate executive waste and dishonesty;

to prevent executive usurpation of legislative authority; and

Sec 21 Art VI (in aid of legislation)

to assess executive conformity with the congressional perception of public interest

Sec 22 Art VI (Question hour)

Q: What is/are the basis of oversight power of Congress? A: The power of oversight has been held to be (1) intrinsic in the grant of legislative power itself and (2) integral to the checks and balances (3) inherent in a democratic system of government.

―Supervision‖ connotes a continuing and informed awareness on the part of congressional committee regarding executive operations in a given administrative area.

Legislative Supervision – third and most encompassing form of oversight power.

Q: what are the categories of congressional oversight functions? [SIS]

Allows congress to the exercise of delegated law-making authority and permits congress to retain that part of delegated authority.

A: Three categories:

Ex: veto power of Congress.

Scrutiny – primary purpose is to determine economy and efficiency of the operation of government activities. Based primarily on the power of appropriation of congress as under the constitution, the ―power of the purse‖ belongs to the congress

Power to create public office / administrative agency – congress has an additional power to supervise - properly implemented congress has review powers over these public offices / administrative agencies.

Ex: Budget hearings – usual means of renewing policy and auditing the use of previous appropriation to ascertain whether they have been disbursed for purposes authorized in an appropriation act.

Ex: GSIS.

Power of confirmation – [through COA,] provides congress an opportunity to find out whether the nominee possesses the necessary qualifications, integrity and probity required for all public servants.

A: It is the power of the congress to disapprove a subordinate law, rules and regulations promulgated/enacted by the executive branch pursuant to a delegation of authority by Congress.

Q: What is legislative veto?

Immunities and privileges of members of Congress Congress may request information and report from the other branches of government. It can give recommendations / pass resolutions for consideration of the agency involved.

Sec 11, Article VI – ―A senator of member of the HOR shall, in all offenses punishable by not more than 6 years imprisonment, be privileged from arrest while the congress is in session. No member shall be questioned nor be held liable in any other place for any speech or debate in Congress or in any committee thereof.‖

Congressional Investigation – a more intense digging of facts.

3 Privileges:

This is an essential and appropriate auxiliary to the legislative functions, even in the absence of an express provision in the Constitution.

(1) Privilege from Arrest (2) Freedom of speech and debate


(3) Freedom from search (see Article 145, RPC)

session is for a fixed period of 100 days. It was patterned after the American Constitution.

Privilege from Arrest Freedom of Speech and Debate Not absolute! Requisites: Limitations: (1) Congress must be in session (2) The offense must be one punishable by imprisonment not exceeding 6 years. ―In session‖

The speech or debate must be made in Congress or in any committee thereof. The congress must be in session.

does not refer to the day to day session refers to the session from the opening to the final/formal adjournment of Congress Art VI, Sec 15 – ―the Congress shall convene once every year on the Fourth Monday of July for its regular session, unless a different date is fixed by Law, and shall continue to be in session for such number of days as it may determine until thirty days before the opening of its next regular session, exclusive of Saturdays, Sundays, and legal holidays x x x ―

Q: In a TV interview, a congressman maligns someone. Can he invoke his freedom of speech? A. NO. It was not made in congress or any of its committee.

Q: In his privileged speech, a congressman made remarks against A. Can A sue him for defamation? A: NO. It is covered by the immunity.

Q: After 15 days of continuous session, congress adjourned. Can this be done?

Q: What is A‘s remedy? A: Ask the house to punish the congressman.

A: YES. Congress has the discretion under Art VI, Sec 15. It is allowed to remain in session provided only that 30 days before the opening of the next session, it shall adjourn (compulsory adjournment).

―In any other place‖ This includes the courts!

the opening of the session is also the time the President delivers his STATE OF THE NATION ADDRESS (SONA) – part of the informing power of the President (Art VII, Sec 23)

Statement made in Congress is a form of privileged communication. This is a valid defense of Slander or Libel!

Art VII, Sec 23 – ―The president shall address the Congress at the opening of its regular session x x x‖ This is a deviation from the 1935 constitution, under which the opening of th the regular session is every 4 Monday of January and the duration of the

Borjal vs. CA: There are 2 kinds of Privileged communication: Absolutely privileged absolutely not actionable even if the author is in bad faith


Ex: Freedom of speech and debate of members of Congress.

conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. x x x‖

Qualifiedly privileged Rules of Court says… Not actionable unless the author acted in bad faith. Rule 114 Sec 4 – Bail, a matter of right; exception: This does NOT include Congress Itself! Osmeňa vs. Pendatun: The Senate expelled Senator Osmeňa from the Senate when he maligned the President in his speech. SC: The Senate‘s act is valid. Congress can punish their members [Art VI, Secc 16(3)]. The freedom of speech and debate cannot be invoked in Congress itself. The constitution says, ―in any other place‖.

All persons in custody shall be admitted to bail as a matter of right, with sufficient sureties, or released on recognizance as prescribed by law or this rule. before / after conviction by the MTC; and before conviction by RTC of an offense not punishable by death, R.P, or life imprisonment. Rule 114 Sec 5 – Bail, when discretionary

People vs. Jalosjos: To allow Jalosjos to attend congressional session will virtually make him a free man; this would be a mockery of the correctional system.

Immunity of Members of the Congress

Upon conviction by the RTC of an offense NOT punishable by death, RP, or LI, admission to bail is discretionary. x x x

Therefore: Matter or Right – before conviction, punishable by penalty lower than reclusion perpetua

arises from a constitutional provision granted in a restrictive sense

Exception: charged with offense punishable by RP or death. cannot be extended by

Intendment Implication Equitable considerations

Q: During pendency of his appeal from conviction of RTC, should he be allowed to post bail? A. NO. Evidence of guild is strong; should wait for decision on appeal inside the penitentiary. 1987 Constitution says… Art III, Sec 13 ―All persons, except those charged with offenses punishable by reclusion perpetua, when the evidence of guilt is strong, shall, before


Matter of Discretion – before conviction punishable by penalty of reclusion perpetua or higher when the evidence of guilt is strong, there will be a hearing to determine whether evidence of guilt is strong.  After conviction, go to Rule 114 sections 4 and 5. Power to Conduct Investigations and Inquiries Sec 21, Art VI – “The senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected.”

Nature of the power to conduct investigations and inquiries

SC: This cannot be allowed. Enrile‘s speech had no suggestion of contemplated legislation. The purpose of inquiry was to find out whether Ricardo Copa violated the law. Thus, there is not intended legislation involved.

non-legislative but integral in the grant of Legislative power Q: Is this subject to Judicial Review? It is investigative. A: General Rule: NO! It is a political question. Arnault vs. Nazareno: In the 1935 Constitution, there is no express provision regarding inquiries in aid of legislation. However, it is intrinsic – to conduct inquiries in aid of legislation. Therefore, even without such provision, this power is present.

Exception: When it is tainted with grave abuse of discretion amounting to lack or excess or jurisdiction. In view of the expanded power of the Courts, the SC can inquire whether the inquiry is in accordance with the limitations under the constitution.

Q: What is the executive privilege? Q: Is the power absolute? A: NO! Section 21 provides for the following limitations:

A: It is the power of the government (the President or Executive Secretary acting in behalf of the president) to withhold information from the public, the couts and the Congress.

It must be in aid of legislation. unless the question is asked, you cannot invoke this privilege It must be made in accordance with duly published rules of procedures It must be invoked (not implied) expressly; must not be a blanket invocation. The rights of persons appearing in, or affected by such inquiries shall be respected.

It is attached to information, and not the person asked.

 The right against self incrimination (Art III sec 17) may be invoked. ―In aid of legislation‖

Q: What are the varieties of Executive privilege?

Bengzon Jr vs. Senate Blue Ribbon Committee

A: (1) State Secrets Privilege – Information is of such nature that its disclosure would subvert crucial military or diplomatic objective.

 Senator Enrile made a privileged speech on the alleged takeover of the SOLOIL Inc. by Ricardo Lopa, a relative of President Auino, and asked the Senate to ―look into the possible violation of the law, particularly with regard to RA3019, the ―Anti-Graft and Corrupt Practices Act‖. The matter was referred to the Senate Blue Ribbon Committee.  Not an inquiry for inquiry‘s sake.


Informer‘s Privilege – the privilege of the Government not to disclose the identity of persons who furnish information of violations of law to officers charged with the enforcement of that law. Generic privilege for internal deliberations – attached to intra-governmental documents reflecting advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated.

Power to Conduct a Question Hour Art VI, Sec 22 – “The heads of departments may upon their own initiative, with the consent of the President, 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 x x x”

information in the legislative process (the power of inquiry being coextensive with the power to legislate)

informed on how department heads are implementing the statutes which it has issued.

*non-appearance will impair the work of Congress and violate Section 7 of the Bill of Rights (right to information in matters of public concern – through their duly elected representatives in Congress)

2 ways to initiate a question hour: Own initiative, with the consent of the President

Q: May members of Cabinet and other top executive officials validly refuse to appear before congressional inquiries without the consent of the President by invoking EO 464 (prohibiting members of the cabinet and other Executive officials from appearing in Congressional Inquiries) promulgated by the President?

Upon request of either house.

Q: What is Question Hour? A: It is a period of confrontation initiated by the parliament to hold the prime minister and other ministers accountable for their acts and the operation of the government. (definition borrowed from a parliamentary government). Senate of the Philippines vs Ermita Sections 21 and 22, therefore, while closely related and complementary to each other, should not be considered as pertaining to the same power of Congress.

Section 21

Section 22

- relates to the power to conduct inquiries in aid of legislation; the aim of which is to elicit information that may be used for legislation.

- pertains to the power to conduct a questions hour; the aim of which is to obtain information in the pursuit of the congress‘ oversight function

- co-extensive with the power to legislate

- in pursuit of Congress‘ oversight function

- attendance compulsory*

- attendance discretionary

is

meant

to

be

- grounded on the necessity of

is

meant

to

be

- congress merely seeks to be


A: If the requirement then to secure presidential consent under EO 464 is limited only to appearances in the Question hour, then it is VALID. For under Section 22, Article VI of the Constitution, the appearance of department heads in question hour is discretionary on their part. However, this cannot be applied to department heads in inquiries in aid of legislation. Congress is not bound in such instances to respect the refusal of the department heads to appear in such inquiry, unless a valid claim of privilege is subsequently made, either by the President himself, or by the Executive secretary (Senate of the Philippines vs. Ermita).

 A claim of privilege, being a claim of exemption from an obligation to disclose information must be clearly asserted. Absent a statement of the specific basis of a claim of executive privilege, there is no way of determining whether it falls under one of the traditional privileges, whether given the circumstances in which it is made. It should be respected. Legislative Contempt – The power to punish for Contempt Nature of the power to punish for contempt General Rule: The power is Judicial in nature. It is an inherent power of the court. Exeption: When exercised by the Congress or any of its committees when conducting inquiries in aid of legislation (legislative contempt), one can be held in detention/sent to prision.

Q: How long can one be held in detention for legislative contempt? A: For as long as he refuses to cooperate, it is not limited to the duration of the session of Congress. Thus, a person holds the key to his own freedom. (Arnault vs. Nazareno) Q: Does the pardoning power of the president apply to cases of Legislative Contempt?

Example: Senate composition: K4 = 10 KNP = 8

A: NO. It is a limitation on the president‘s power to pardon by virtue of the doctrine of separation of powers.

LOP = 4

Bodies Attached To Congress:

LAKAS = 2 Formula to determine seats per party in the Commission on Appointments:

Commission on Appointments (Art. VI, Sec 18) Electoral Tribunals (Art VI, Sec 17)

# of senators of party Commission on Appointments

x 12

Total # of senators Section 18, Art VI – ―There shall be a commission on Appointments consisting of the President of the Senate as ex officio chairman, twelve senators and twelve members of the House of Representatives, elected by each House on the basis of proportional representation from the political parties and parties and parties or organizations registered under the partylist system represented therein. The chairman of the Commission shall not vote, except in case of a tie. The commission shall act on all appointments submitted to it within thirty session days of the Congress from their submission. The commission shall rule by a majority vote of all the members.‖

12 is the # of CoA seats Simply put, it is the # of senators of a Party DIVIDED by 2 Follow the same formula for HOR component – just use the # of congressmen. Therefore: K4 = 5

Organization Q: A: 25

How many  Senate President – ex officio chairman

KNP = 4 members?

 12 Senators  12 Representatives (from the House of Representatives) Q: How are the 24 members chosen? A: based on proportional representation from political parties (including party list) having membership in the senate or House of representatives.


LOP = 2 LAKAS = 1 Q: What if there are decimal places? A: Disregard (drop) the fraction. Otherwise, rounding off would violate the rule on proportional representation! Although some seats would not be filled, it is not mandatory that all seats be filled up. What is necessary is that there be a quorum (Guingona vs. Gonzales)

FACTS: Congressman Camasura was a member of the HRET. There was an electoral contest involving his party-mate and Bondoc. The party instructed Camasura to vote for his party-mate. However, Camasura cast a conscience vote in Bondoc‘s favor. Thus, the party expelled Camasura from HRET on the grounds of ―disloyalty to the party‖ and ―breach of party discipline‖.

Q: What is main function of the Commission on Appointments? A: To act on Presidential Appointments (checks-and-balances) Q: When can CoA meet? nd

A: Only when the congress is in Session. (Art VI, Sec 19. 2 sentence) – ―The commission on Appointments shall meet only while the Congress is in session at the call of its chairman and a majority of all its members, to discharge such powers and functions as are herein conferred upon it” - Thus, ad interim appointments are allowed (see Section 16, 2

nd

par. Art VII)

Electoral Tribunals Section 17, Art VI – ―The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective members. Each Electoral Tribunal shall be composed of nine members. Three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be members of the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its chairman.‖

HELD: The expulsion is VOID. SET/HRET members are entitled to security of tenure to ensure their impartiality and independence. As judge-members of the tribunal, they must be non-partisan; they must discharge their functions with complete detachment; Independence and impartiality, even from the party to which they belong. Thus, ―disloyalty to party‖ and ―breach of party discipline‖ are not valid grounds for expelling a tribunal‘s member. The members are not supposed to vote along party lines – once appointed, the house/senate leadership should not interfere with the tribunal. Although they are attached to congress, yet they are independent of Congress. Q: Can they meet when Congress is not in session? A: YES. Unlike the Commission on Appointments, they shall meet in accordance with their rules, regardless of whether congress is in session!

Q: From the decision of SET or HRET, is there an appeal?

Senate Electoral Tribunal (SET)

A: NO. Sec 17 of Article VI provides that the SET/HRET is the ―sole judge of all contests x x x‖. Hence, from its decision, there is no appeal. Appeal is not a constitutional but merely a statutory right.

House of Representatives Electoral Tribunal (HRET)

Q: Is there any remedy from its decision?

Membership – 9 members

A: YES. A special civil action (an original action – not a mode of appeal) for certiorari under Rule 65 may be filed. This is based on grave abuse of discretion amounting to lack or excess of jurisdiction. This will be filed before the SC.

Two Electoral Tribunals

Judicial Component – 3 Supreme Court Justices; the most senior is the chairman (designated by the CJ) Legislative Component – 6 senators / congressmen chosen on the basis of proportional representation

[The other form of Certiorari is Rule 45, which is a mode of appeal on pure questions of law. This is a mode of appeal unlike the Special Civil action for Certiorari under Rule 65]

Bondoc vs. Pineda  SET/HRET‘s jurisdiction is limited to ―contests relating to the election x x x of their respective members‖


Romualdez-Marcos vs. COMELEC FACTS: In the 1995 elections, Imelda ran for HOR. A disqualification case was filed against her on account of her residence. The case was not resolved before the election. Imelda won the election. However, she was not proclaimed. Imelda now questions the COMELEC‘s jurisdiction over the case.

General Rule: A bill may be introduced and may originate either from the Senate or the HOR. Exceptions: Bills that must originate exclusively with the HOR [APRIL]

Appropriations bill HELD: The COMELEC still has jurisdiction. HRET‘s jurisdiction as the sole judge of all contests relating to the elections, etc..of members of congress begins only after a candidate has become a member of the HOR. Since Imelda has not yet been proclaimed, she is not yet a member of the HOR. Thus, COMELEC retains jurisdiction. (see RA6646, Sec 6, Electoral Reform Law of 1987)

Private bills Revenue or Tariff bills

Bills of Local Application

FACTS: Rudy Fariñas of Ilocos Norte ran for Congressman. A disqualification case was filed against him, which was not resolved before the elections. He won and was proclaimed. COMELEC dismissed the pending disqualification case against Fariñas. This was questioned by Guerrero on the ground that HRET has jurisdiction only if there is a valid proclamation of the winning candidate. Thus, if a candidate does not ratify the statutory requirements, his subsequent proclamation is void and thus, COMELEC still has jurisdiction.

Source:

[Thus, once a winning candidate has been proclaimed, taken his oath of office and assumed office as a member of the HOR, the COMELEC‘s jurisdiction over election contests relating to his election returns and qualifications ends, and the HRET‘s own jurisdiction begins.]

The Legislative Process Filing of the Bill


 Amendment by substitution is allowed.

Bills Increasing the Public Debt

Guerrero vs. COMELEC

HELD: The dismissal (of the case) is incorrect. This is a recognition of the jurisdictional boundaries between COMELEC and HRET. In an electoral contest where the validity of the proclamation of a winning candidate who has taken his oath of office and assumed his post as congressman is raised, the issue is best addressed to the HRET. This avoids duplicity of proceedings and a dash of jurisdiction between constitutional bodies.

…but senate may propose & concur with amendments.

Article VI, section 24 – ―All appropriate, revenue or tariff bills, bills authorizing increase of public debt, bills of local application, and private bills shall originate exclusively in the House of Representatives, but the senate may propose or concur with amendments.” Tolentino vs. Secretary of Finance bill. It intends to rais income for the gov‘t.

EVAT is a revenue

FACTS: There were 2 versions of the EVAT – the HOR and the Senate version. The HOR bill was first filed and the Senate suspended its own deliberations until the HOR version was sent to the Senate. Then, the senate passed its own version. Both versions were sent to the Bicameral Conference Committee. What eventually became the EVAL law was the senate‘s version. HELD: It is not the law, but the revenue bill that is required to originate exclusively in the HOR. What the constitution simply means is that the INITIATIVE for filing revenue, tariff bills, etc…must come from the HOR on the theory that since the HOR members are elected from the districts, they can be expected to be more sensitive to the local needs and problems. A bill originating in the HOR may undergo such extensive changes in the Senate. The result may be a rewriting of the whole. To insist that the revenue statute must be substantially the same as the house bill would deny the senate‘s power to concur and propose amendments. This would violate the coequality of the legislative power between the HOR and the Senate. Thus, the

power of the senate to propose amendments includes the power to propose its own version. Amendments may be amendments by substitution.

[Here, when a statute repeals a former law, such repeal is the effect – not the subject of the law and it is the subject and not the effect that is required to be briefly expressed in the title.]

2 rules: 1) One-subject-one-title rule Tobias vs. Abalos Sec 26(1), Art VI – ―Every bill passed by the Congress shall embrace only 1 subject, which shall be expressed in the title thereof.” Objectives (De Guzman Jr. vs. COMELEC) To prevent hodge-podge or log-rolling legislation; To prevent surprise or fraud upon the legislature by means of provisions in bills of which the title gives no information and which might thus be overlooked and carelessly and unintentionally adopted; and To fairly appraise the people, through such publication of legislative proceedings as usually made, of the subjects of legislation that are being considered, in order that they may have the opportunity of being heard thereon by petition or otherwise, if they shall so desire. In general, the rule seeks to prevent riders – provision which is totally unrelated to the subject matter of the legislation being considered and may be the subject of a separate legislation. This rule is interpreted liberally!

FACTS: San Juan and Mandaluyong used to be municipalities belonging to one (1) legislative district, with one congressman. RA7675 was enacted entitled, ―converting Mandaluyong into a highly urbanized city‖. Section 49 of said law creates a separate legislative district for Mandaluyong. The people approved the law in a plebiscite. Tobias now questions the legality of the law on the ground that it has 2 unrelated subjects: (1) conversion of Mandaluyong into a highly urbanized city, and (2) creation of a separate legislative district for Mandaluyong.

HELD: The creation of a separate legislative district for Mandaluyong is NOT a subject separate from its conversion into a highly urbanized city. Instead, it is a natural and logical consequence of such conversion. This is because of Article VI, Section 5(3), which provides that ―each city with a population of at least 250,000 or each province shall have at least one (1) representative.‖

This, for as long as various provisions are germane to the subject matter – which is expressed in the title – the rule is complied with.

Philippine Judges Association vs. Prado FACTS: RA7354 is entitled, ―law creating the Philippine Postal Corporation‖. In section 35 (Repealing clause), the Judiciary‘s franking privilege was withdrawn. Philippine Judges Association argues that Section 35 is not expressed in the title of the law, and also the title does not reflect the purpose of withdrawing said franking privilege. HELD: The bill‘s title is not required to be an index to the body of the act, or to be comprehensive as to cover every single detail in the act. If the title fairly indicates the general subject and reasonable covers all the provisions of the act, and is not calculated to mislead the legislature or the people, there is sufficient compliance with the constitutional requirement.


2) Three readings on three separate days rule Sec 26(2), Art VI – ―No bill passed by either House shall become a law unless it has passed three readings on separate days, and printed copied thereof in its final form have been distributed to its members three days before its passage, except when the President certifies to the necessity of its immediate enactment to meet a public calamity or emergency. Upon the last reading of a bill, no amendment thereto shall be allowed, and the vote thereon shall be taken immediately thereafter, and the yeas and nays entered in the Journal.‖

General Rule: Each bill must undergo 3 separate readings on 3 separate days. (one in Senate, one in HOR = 6 days/readings all-in-all) First Reading the bill‘s title is read; it is assigned a number, and then referred to the appropriate committee

 What constitutes a public calamity or emergency is a political question into which the courts cannot interfere. While the sufficiency of the factual basis of the suspension of the writ of Habeas Corpus or declaration of martial law is subject to Judicial review because basic rights of individuals may be at hazard, the factual basis of presidential certification of bills, which involves doing away with procedural requirements designed to insure that bill are duly considered by member of congress, certainly should elicit a different standard of review.

no deliberations yet In the committee to which the bill was referred to, it may die a natural death if said committee sits on it.

 After 3 readings, the bill will be sent to the other house where it will undergo the same cumbersome process.

If the members of the committee endorse the bill to the plenary, it will be nd calendared for 2 reading.

 If both houses have different versions of the Bill, said versions will be sent to the Bicameral Conference Committee for reconciliation.

Second Reading BICAMERAL CONFERENCE COMMITTEE (Sec 1, Art VI – Bicameral Congress)

The bill is sent back to the plenary. In the plenary, it will be discussed in its entirety; there will be sponsorship speech, interpellations, deliberations; amendments may also be introduced.

Q: Is this mentioned in the Constitution?

Third Reading

A: NO! But it can be inferred from: rd

Requirement: 3 days before the scheduled 3 reading. Printed copies of the bill will have to be distributed to each member of the house.

Power of each house of Congress to have rules of proceedings under Art VI, Section 16(3) – ―Each house may determine the rules of its proceedings x x x”; and

Here, there are no more deliberations, discussions, or amendments. There is only voting; the yeas and nays must be entered in the journal.

The fact that we have a bicameral Congress – Art VI, Sec 1 – ―The legislative power shall be vested in the Congress x x x which shall consist of a senate and a HoR.” Nature and Functions of the Bicameral Conference Committee

Exception: When the President certifies to the necessity of its immediate enactment to meet a public calamity or emergency. Tolentino vs. Secretary of Finance When the president certifies as to the necessity of the Bill‘s immediate enactment, it need not undergo 3 readings on 3 separate days and printed copies of the Bill need not be distributed to the members 3 days before the rd 3 reading.


Source: Philippine Wages Association vs. Prado Primarily, it is a mechanism for compromising differences between the senate and the HoR; this is because we have a bicameral Congress. It is capable of producing unexpected results which can even go beyond its mandate.

rd

Referred to as the ―3 house‖ of Congress – not correct under our constitution, because there are only two houses.

Q: What is the reason for the doctrine?

See Arroyo vs. De Venecia

A: Separation of Powers. The courts should give due respect because the enrolled bill contains the signatures of the officers of the co-equal branches of Government.

 Referral back to the Senate and the HoR – from the bicameral conference committee, the consolidated bill will be sent back to each House.  There, the consolidated bill will be subject to voting; no more readings

Journal Keeping Requirement Sec 16(4), Art VI – ―Each house shall keep a Journal of its proceedings and from time to time publish the same, excepting such parts as may, in its judgment, affect national security x x x”

If the yeas prevail over the nays – the bill is passed and will be sent to the Senate Predient and the HoR speaker for signing. If the nays prevail over the yeas – another bicameral conference committee will be created until an acceptable version of the bill is created; the court did not say that the bill is killed.

Q: Between the enrolled bill and the Journal, which prevails? A: General Rule: Enrolled bill prevails

Enrolled Bill Doctrine

Exception: Journal prevails as to the matters required by law to be entered into the Journal. They are regarded as conclusive:

Q: What is the enrolled bill doctrine?

The yeas and nays on the 3 and final reading

A: Once a bill has become an enrolled bill, it becomes conclusive upon the courts as to its enactment*, so that the courts will not inquire into whether that Bill was regularly enacted or not.

Art VI. Sec 26(2) – ―Upon the last reading of a bill x x x the vote thereon shall be taken immediately thereafter, and the yeas and nays entered in the Journal.”

* It is the enactment only and NOT its constitutionality or validity, which is subject to judicial review.

The yeas and nays on any question at the request of 1/5 of the members present

Q: What is an enrolled bill?

Art VI, Sec 16(4) – ―Each house shall keep a journal of its proceedings x x x and the yeas and nays on any question shall, at the request of 1/5 of the members present, be entered in the journal.‖

A: It is a bill that contains the signatures of the respective secretaries of both Houses of Congress, of the House Speaker and of the Senate President; and is to be sent to the President for his signature.

rd

The yeas and nays upon re-passing a bill over the President‘s veto.

Secretary of the senate and of the 

Art VI Sec 27(1) – ―In such cases, the votes of each house shall be determined by yeas or nays, and the names of the members voting for or against shall be entered in its journal.‖

 speaker

The president‘s objection to a bill he had vetoed.

Senate president

Art VI Sec 27(1) – ―every bill passed by Congress shall, before it becomes a law, be presented to the President x x x otherwise, he shall veto it and return

In other words, the following are the signatories to the enrolled bill:




the same with his objections to the House where it originated, which shall enter the objections at large in its journal x x x‖

(2) President vetoes the bill become a law

Astorga vs. Villegas

(3) President does not do anything (inaction)  automatically becomes a law thirty (30) days after receipt of the bill.

FACTS: A bill of local application was filed in the  and was there passed rd on 3 reading without amendments. Forthwith, the bill was sent to the Senate for its concurrence. It was approved with minor amendments suggested by Senator Roxas, that instead of the City Engineer, it be the President Protempore of the Municipal Board who should succeed the Vice Mayor in case of the latter‘s incapacity to act as Mayor. However, on second reading, substantial amendments to this were introduced by Senator Tolentino. These were approved in toto by Senate. The amendment recommended by Senator Roxas does not appear in the Journal of the Senate proceedings as having been acted upon. When the Secretary of the Senate sent a letter to the  that the House Bill No. 9266 had been passed by the Senate with amendments, he attached a certification of the amendment, which were the ones actually approved by the senate. The  thereafter signified its approval of the bill and caused copies thereof to be printed. The printed copies were then certified and attested by the secretaries of the  and the senate and the speaker of the  and the Senate president. When the printed copies were sent to the President, he affixed his signature thereto by was of approval. The bill became R.A. 4065. However, Senator Tolentino issued a press statement that the bill signed into law by the President was the wrong version. Consequently, the Senate President withdrew his signature.

bill

does

not

First option: President approves the Bill Sec 27 (1), Art VI – ―Every bill passed by Congress shall, before it becomes a law, be presented to the President. If he approves the same, he shall sign it xxx‖ Second option: President vetoes the bill Sec 27 (1), Art VI – ―Every bill passed by Congress shall, before it becomes a law, be presented to the President x x x otherwise, he shall veto it and return the same with his objections to the House where it originated.‖ Requirements: Sent the bill back to Congress, Together with his objections (veto message)

Q: Can Congress overthrow the veto (―repass the law‖)? HELD: The court went beyond the enrolled bill and looked into the Journal to determine whether there‘s legal insertion or not.

Enrolled bill to the President

A: YES! With a 2/3 vote as provided under Sec 27(1) Art VI – ―If after such reconsideration, 2/3 of all members of such House agree to pass the bill, it shall be sent, together with the objections to the other house by which it shall likewise be considered, and if approved by 2/3 of all members of that house, it shall become a law.‖

Last stage Kinds of Veto

From Congress, the bill will be sent to the President. Q: How A: 3 options:

many

options

does

(1) President approves the bill


the

president

have?

 bill becomes a law

General Veto – Art VI, Sec 27, par 1 Item Veto or Line Veto – Art VI, Sec 27, par 2 ―The President shall have the power to veto any particular item or items in an appropriation, revenue, or

tariff bill, but the veto shall not affect the item or items to which he does not object.” Q: Do Local Chief Executives have veto power? A: NO. General Rule: President may not veto a provision without vetoing the entire bill.

Q: How about a Governor?

The rule is all or nothing; selective veto is not allowed.

A: Yes. There is a vice-governor.

The president may not veto a bill without vetoing the entire bill. The executive must veto a bill in its entirety or not at all. He cannot be an editor crossing our provisions which she dislikes. (Bengzon vs. Drilon)

Q: How about a Mayor?

Exceptions: Selective veto is allowed in 3 kinds o bill (ART)

A. Yes. There is vice-mayor.

Appropriation bills

Chief Executive of Baranggay

Revenue Bills

Chief Executive

Tariff Bills

Sangguniang Baranggay, presiding officer

Grounds for Vetoing Ordinance by the Chief Executive

Lupong Tagapamayapa

Sec. 55 of LGC par. A

Can carry firearms

[UP]

Ultra-vires/ Q: Is the Chief executive of Baranggay an agent, or a person-in-authority?

prejudicial to public welfare Sec 55 of LGC par. B: on Item/line veto:

[PAL]

Appropriation Ordinance

A: Person-in-authority (recall Crim Book II – can be subject to direct assault) N.B.: Policeman – agent of person-in-authority

Adopting a local development plan

 Sec. 388 LGC

Ordinance Authorizing Payment of money/creating Liability

Punong Baranggay Sangguniang Baranggay members authority

Q: Under the LGC, can Punong-Baranggay veto an ordinance? Lupong taga-pamayapa A: NO. He is part of the ordinance-making (or legislative process) body as the presiding officer of the sessions of Sangguniang Baranggay.


Persons-in-

Doctrine of Inappropriate Provisions

Third option: President does not do anything (inaction)

 Provisions in an appropriation bill must relate to some particular provision therein (see Art VI, Sec 25(2)). If it does not, it becomes an inappropriate provision and will be treated as an item. Thus, it can be subject to the item veto (Gonzales vs. Macaraig)

Sec 27 (1), Art VI [last sentence] – ―x x x The president shall communicate his veto of any bill to the House where it originated within thirty days after the ate of receipt thereof; otherwise, it shall become a law as if he had signed it.‖

Gonzales vs. Macaraig

Q: Is ‗pocket veto‘ valid or practiced in our jurisdiction?

FACTS: the General Appropriations Bill contained a provision prohibiting the President from augmenting the funds of one department from the other. President Aquino vetoed that provision. Congress argued that what she vetoed was a provision, not an item. Thus, she effectively vetoed the entire bill since the item veto refers to items and not to provisions.

A: NO. There is not such thing as ‗pocket veto‘ in the Philippines. Unlike in the US – if within 10 days, the president fails to act on the Bill and Congress adjourns, the bill does not become a law. In our jurisdiction, the bill automatically becomes a law if the President does not act within 30 days after receipt of the Bill.

HELD: The Court sustained the validity of the exercise by the President of her veto power, invoking the doctrine of inappropriate provision.

Section 25, par 2, Art VI – ―No provision or enactment shall be embraced in the general appropriations bill, unless it relates specifically to some particular appropriation therein. Any such provision or enactment shall be limited in its operation to the appropriation to which it relates.‖

Example of Bills which lapsed into law by the President‘s inaction: Bar Flunker‘s Act – President Quirino Changing the name of Manila Int‘l Airport to Ninoy Aquino Int‘l Airport – President Aquino

Q: What if the President does not veto the inappropriate item? A: It becomes a law/ rider which may be a separate subject of legislation. Q: May the President veto a LAW? A: NO. What the president may validly veto is ONLY a BILL and neither the provisions of LAW 35 years before his term nor a final and executory judgment of the Supreme Court. (Bengzon vs. Drilon)

Doctrine of Qualified Political Agency (Alter Ego Doctrine) Members of the Cabinet are considered acts/decisions of the President UNLESS reprobated by the latter.

Item vs. Provision in an appropriation bill

Members of the Cabinet are considered alter ego of he President.

 An item is a specific appropriation of money, not some general provision of law that happens to be in an appropriation bill.

EXECUTIVE DEPARTMENT


- 6 years, to begin at noon of June 30 next following the day of the election and to end at noon of the same date 6 years thereafter. EXECUTIVE POWER ARTICLE VII, Sec. 1: ―The executive power shall be vested in the President of the Philippines.‖

- no re-election; regardless of whether or not President finished his term. - ―The President shall not be eligible for any re-election.‖ (Sec. 4)

Q: What power belongs to the President?

QUALIFICATIONS AND TERM OF OFFICE OF THE VICE PRESIDENT

A: Power of the Sword. (Power of the Purse belongs to the Congress.)

- same as the President st

ARTICLE VII, Sec. 3, 1 par. – ―There shall be a Vice President who shall have the same qualifications and term of office xxx as the President." FAITHFUL EXECUTION CLAUSE ARTICLE VII, Sec. 17, 2 faithfully executed.‖

nd

sentence: ―xxx he shall ensure that the laws be

QUALIFICATIONS OF PRESIDENT – ARTICLE VII, Sec. 2 (1) natural-born citizen

- may be re-elected once! ARTICLE VII, Sec. 3, 2 two successive terms.‖

nd

par. – ―No Vice President shall serve for more than

- no longer an idle official nd

ARTICLE VII, Sec. 3, 2 par. – ―The vice President may be appointed as a Member of the Cabinet. Such appointment requires no confirmation.‖

(2) registered voter (3) able to read and write

PRESIDENTIAL SUCCESSION

(4) at least 40 years of age on the day of the election

ARTICLE VII, Sec 8 – ―In case of death, permanent disability, removal from office or resignation of the President, the Vice President shall become the President to serve the unexpired term.‖

(5) resident of the Philippines for at least 10 years immediately preceding the election

4 INSTANCES: - Enumeration is exclusive! (1) Death - The Constitution specifically provided that the Congress cannot add nor subtract from the list.

(2) Permanent disability (3) Removal

TERM OF OFFICE OF THE PRESIDENT – ARTICLE VII, Sec. 4


- The President can only be removed by means of impeachment.

- ARTICLE XI, Sec. 2 : the list of impeachable officer is exclusive! (1) President (2) Vice President (3) Members of the Supreme Court (4) Members of the Constitutional Commission (5) Ombudsman - Hence, the provision in the law creating the Sandiganbayan (1980) is already doubtful! (The law creating Sandiganbayan provides that SB Justices may only be removed by impeachment.)

- TOTALITY OF CIRCUMSTANCES TEST AND CONSTRUCTIVE RESIGNATION – Estrada did not write any formal letter of resignation before leaving Malacanang. Thus, whether or not he resigned is to be determined from his acts and omissions before, during, and after January 20,2001 or by the totality of prior, contemporaneous and posterior facts and circumstantial evidence bearing a material relevance on the issue using this test, his resignation cannot be doubted. In his final statement, he (a) acknowledged Arroyo‘s oath-taking as President; (b) emphasized he was leaving Malacanang for the sake of peace and order – not because of some inability; (c) expressed his gratitude to the people for the opportunity to serve them, etc.

- Grounds: (a) culpable violation of the Consitution (b) treason (c) bribery (d) graft and corruption (e) high crimes (f) betrayal of public trust Q: Was Estrada impeached? A: Yes!

Note; In the Law Public Officers, an essential element of resignation is the acceptance by the proper authority. - This element cannot be applied in the instances when the President resigns. - The President is the highest officer of the land, hence, there is no one to act on his resignation. - Unique situation so SC applied a unique solution. (Concept of Constructive Resignation)

Q: But was he removed through impeachment? A: No! (remember, a vice president can only be removed by impeachment) POWERS OF THE PRESIDENT I. SPECIFIC POWERS FOUND IN ARTICLE VII (4) Resignation (1) Appointing Power Estrada vs. Desierto (Did Erap resign?) - Elements of Resignation (a) there must be an intent to resign, which is coupled with: (b) act of relinquishment - Form of Resignation: the validity of a resignation is not governed by any formal requirement as to form – it can be oral or written; express or implied as long as the resignation is clear, it must be given effect.


- Carries with it the power of removal - ARTICLE VII, Sec. 16

(2) Power of Control - ARTICLE VII, Sec. 17 – ―The President shall have control of all the executive departments, bureaus, and offices xxx.‖

- With respect to local governments, the President merely has power of general supervision. (ARTICLE X, Sec. 4)

- ARTICLE VII, Sec. 21 – ―No treaty or international agreement shall be valid and effective unless concurred in by at least 2/3 of all the Members of the Senate.‖ (7) Budgetary Power

(3) Military Powers - ARTICLE VII, Sec. 18 - There are actually 3: (a) calling-out power as the commander-in-chief of all the armed forces

- ARTICLE VII, Sec. 22 – ―The President shall submit to the Congress within 30 days from the opening of every regular session, as the basis of the general appropriations bill, a budget of expenditures and sources of financing, including receipts from existing and proposed revenue measures.‖

(b) power to declare martial law (c) power to suspend the privilege of writ of habeas corpus (4) Pardoning Power ARTICLE VII, Sec. 19 – ―Except in cases of impeachment, or as otherwise provided in this Constitution, the President may grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by final judgment. He shall also have the power to grant amnesty with the concurrence of a majority of all Members of the Congress.‖

(8) Informing Power - SONA - ARTICLE VII, Sec. 23 – ―The President shall address the Congress at the opening of its regular session. He may also appear before it at any other time.‖

- 5 matters mentioned: (a) reprieves (b) commutations (c) pardons (d) remit fines and forfeitures (in these 4, conviction by final judgment is a requirement) (e) amnesty - require concurrence of the majority of Congress - conviction by final judgment is not a requirement - if case is still pending, may extend amnesty (5) Borrowing Power - ARTICLE VII, Sec. 20 – ―The President may contract or guarantee foreign loans on behalf of the Republic of the Philippines with the prior concurrence of the Monetary Board, and subject to limitations as may be provided by law xxx.‖ (6) Treaty-Making Power


II. SPECIFIC CONSITUTION

POWERS

FOUND

SOMEWHERE

ELSE

IN

THE

(1) Power of general supervision over local governments - ARTICLE X, Sec. 4 – ―The President of the Philippines shall exercise general supervision over local governments xxx.‖

(2) Veto Power - ARTICLE VI, Sec. 27

(3) Power to call Congress to special session - ARTICLE VI, Sec. 15 – ―The President may call a special session at any time.‖

III. OTHER POWERS (1) Impoundment Power - refusal of the President, for whatever reason, to spend funds made available by Congress. It is the failure to spend or obligate budget authority or any type. (PHIILCONSA VS. ENRIQUEZ) - 3 principal sources: (a) authority to impound given by Congress (b) executive power – president as the commander-in-chief (c) faithful execution clause (2) Unstated Residual Powers

Structure of ARTICLE VII, Sec. 16: 2 Paragraphs (1) list of officers who are to appointed by the President (2) ad interim appointments FIRST SENTENCE, FIRST PARAGRAPH Q: Will all appointments of the President require confirmation of the Commission on Appointments? A: Not all appointments require confirmation under the present Constitution. st Only those officers enumerated in the 1 sentence require confirmation. (Sarmiento vs. Mison)

- powers which are not found in the Constitution, but he may validly exercise. (Marcos vs. Manglapuz). - reserved powers of the president

- Under the 1935 Constitution, all appointments need confirmation. - Under the 1973 Constitution, all appointments no longer need confirmation (because Congress was then abolished by President Marcos).

Q: How do you define executive powers? A: Executive power is neither legislative nor judicial. (This implies that it is very broad.) APPOINTING POWER

- Experience shows that when all appointments required Confirmation, it became a venue for horse-trading and similar malpractices. On the other hand, placing absolute power to make appointments in the President with hardly any check by the legislature, as what happened under 1973 Constitution, leads to abuse of such power. Thus, was perceived the need to establish a ―middle ground‖ between the 1935 and 1973 Constitution.

- ARTICLE VII, Sec. 16 - correlate with Law on Public Officers 4 INSTANCES WHERE CONFIRMATION IS REQUIRED (1) Heads of executive departments Nature of Appointing Power - appointment of cabinet secretaries requires Confirmation - vested in the President; executive in nature - subject only to well-known exceptions - carries with it the removal power (power to hire carries with it the power to fire)


- EXCEPTION: Vice-president may be appointed as a member of the Cabinet and such appointment requires no confirmation. (ARTICLE VII, Sec. 3, Par. 2)

(2) Ambassadors, other public ministers and consuls

commission. The authority of local executives over the police units in their jurisdiction shall be provided by law.

- those connected with the diplomatic and consular services of the country.

(3) Officers of the armed forces from the rank of colonel or naval captain

- To so distinguish the police force from the armed force, Congress enacted RA. 6975. Thereunder the police force is different from and independent of the armed forces and the ranks int eh military are not similar to those in the PNP.

Q: What about officers of PNP of equivalent ranks? A: No. MANALO VS. SISTOZA - President Aquino promoted 15 police officers by appointing them to positions in the PNP with the rank of Chief Superintendent to Director. Without their names submitted to the Commission on Appointments for confirmation, the said police officers took their oath and assumed their respective positions. Manalo questioned this on the ground that both under Sec. 16, ARTICLE VII of the 1987 Constitution and RA. 6975 (Local Govt Act of 1990) require their appointments to be submitted for confirmation and that PNP is akin to the AFP.

- Present PNP is no longer part of the AFP; is a civilian institution placed under DILG. Unlike PCINP, which is a part of AFP, it is in fact armed forces.

(4) Other officers of the government whose appointments are vested in him in this Constitution EX: Chairmen and members of CSC, Comelec, COA (by express provision) Regular members of JBC (ARTICLE VII, Sec. 8, Par. 2)

SC: Only presidential appointments belonging to the first group require confirmation by the Commission on Appointments. The appointments of police officers who are not within the first category need not be confirmed by the Commission on Appointments. Consequently, unconstitutional are Sections 26 and 31 of RA. 6975 which empowers the Commission on Appointments to confirm the appointments of public officials whose appointments are not required by the Constitution to be confirmed.

EXCEPTION: Judges, Justices, Ombudsman (by the creation of the JBC, their appointments no longer require confirmation) Sectoral representatives in Congress (Teresita Quintos deles et al vs. Commision on Constitutional Commission)

SECOND SENTENCE INSTANCES WHEN CONFIRMATION IS NO LONGER REQUIRED - The PNP is separate and distinct from the AFP. The Constitution no less, sets forth the distinction. Under Sec. 4, ARTICLE XVII, ―the armed forces of the Philippines shall be composed of a citizen armed force which shall undergo military training and service, as may be provided by law. It shall keep a regular force necessary for the security of the state.‖ On the other hand, Sec. 6 of the same article ordains that: ―The state shall establish and maintain one police force, which shall be national in scope and civilian in character to administered and controlled by a national police


(1) All other officers of the government whose appointments are not otherwise provided by law

(2) Those who he may be authorized by law to appoint

The Congress may, by law, vest the appointment of other officers lower in rank in the president alone, in the courts, or in the heads of departments, agencies, commissions or boards.

- SC clarified that this list is EXCLUSIVE. Congress by a mere legislative act may not validly amend the constitution by adding or deducting anything from that list SECOND PARAGRAPH: AD INTERIM APPOINTMENTS

SARMIENTO VS. MISON

Q: What are ad interim appointments?

- It is evident that the position of Commissioner of Bureau of Customs (a bureau head) is not one of those within the first group of appointments where the consent of the Commission on appointments is required.

A: AD INTERIM literally means ―in the meantime‖ or ―for the time being‖. - These are appointments made by the President when Congress is not in session. - Sec. 16, ARTICLE VII, Par. 2 should be correlated to Sec. 19, ARTICLE VI – ―xxx The Commission on Appointments shall meet only while the Congress is in session xxx‖.

MARY CONCEPCION BAUTISTA VS. SALONGA - The appointment of the chairman and members of the Commission on Human Rights is not specifically provided for in the Constitution itself. Unlike the Chairmen and Members of the CSC, the Comelec and the COA, whose appointments are expressly vested by the Constitution in the President with the consent of the Commission on Appointments. The Human Rights pursuant to the second sentence in Sec. 16, ARTICLE VII, that is, without the Confirmation of the Commission on Appointments because they are among the officers of the government whom he may be authorized by law to appoint. And Sec. 2(c) EO. 135 (5 May 1987) authorizes the President to appoint the chairman and members of the Commission on Human Rights.

- RATIONALE: Commission on Appointments meets when Congress is in session so that even if Congress is not in session, the President is not precluded from making an appointment. Q: What are regular appointments? A: These are appointments made by the President when Congress is in session. Q: What is the real distinction between the two?

CALDERON VS. CARALE - Calderon questions the constitutionality and legality of the permanent appointments extended by the President to respondents chairman and members of the NLRC without submitting the same to the Commission on Appointments for confirmation pursuant to ARTICLE 215 of the Labor Code, as amended by RA. 6715 (Herrrera-Veloso Law or the Act amending the Labor Code reorganizing the NLRC)

A: The real distinction between ad interim and regular appointment lies in the effectivity of the appointment. AD INTERIM takes effect immediately

does not take effect immediately; takes effect only upon confirmation by the Commission on Appointments

there is risk of losing both positions (upon assumption of new office), he loses his former position

no risk involved (appointee cannot assume until appointment is confirmed)

actually, the President appoints, subject only to the resolutory condition that it be confirmed later on

actually, the President does not appoint; he merely nominates subject to confirmation by the

nd

SC: The NLRC Chairman and Commissioners fall within the 2 sentence of Sec. 16, ARTICLE VII of the Constitution more specifically under the ―third group‖ of appointees – those whom the President may be authorized by law to appoint. Undeniably, the chairman and members of the NLRC are not st among the officers mentioned in the 1 sentence of Sec. 16, ARCTICLE VII whose appointments require confirmation by the Commission on Appointments. To the extent that RA. 6715 requires confirmation by the Commission on Appointments of the appointments of respondent chairman and members of NLRC, it is unconstitutional.


REGULAR

by the Commission on Appointments

Commission on Appointments c) where the appointee is confirmed to serve the unexpired term of someone who died or resigned and the appointee completes the unexpired term;

MATIBAG VS. BENIPAYO Benipayo, Tuason, and Borra were appointed Chairman and Commissioners respectively of the COMELEC by the President when Congress was not in session. These ad interim appointments were bypassed by the Commission on Appointments. However, they were subsequently re-appointed by the President to the same positions. Upon assumption to office, Benipayo transferred Matibag to another department. Matibag now questions the validity of the appointments on the grounds that: (1) the ad interim appointments violate ARTICLE IX-C, Sec. 1, Par. 2 – ―In no case shall any member be appointed or designated in a temporary or acting capacity (Matibag is of the impression that such ad interim appointments are temporary because they are revocable at the will of the President); and (2) even assuming they are valid, their re-appointment violates ARTICLE IX-C, Sec. 1, Par. 2 – ―The chairman and the commissioners shall be appointed xxx for a term of seven years without reappointment.‖

d) where the appointee has previously served a term of less than seven years, and a vacancy arises from death or resignation.

- 2

nd

issue is of first impression! (not yet asked in the bar)

- In any of these four situations, it presupposes that the appointment had already been confirmed by the Commission on Appointments. It will not apply in this case where the appointments were by-passsed.

Q: What if the appointments were actually disapproved and not simply bypassed, can they still be validly reappointed? A: No. The disapproval is actually a judgment on the merits of their qualification. The principle of checks and balances will come into play.

SC: (1) An ad interim appointment is permanent in character (Summers vs. Ozaeta). The Consitution imposes no condition on the effectivity of an ad interim appointment and thus an ad interim takes effect immediately. PIMENTEL VS. ERMITA - The Constitution itself makes ad interim permanent appointment. - An ad interim appointment is not descriptive of the nature of the appointment, that is, it is not indicative of whether the appointment is temporary or in an acting capacity, rather it denotes the manner in which the appointment was made. (Marohombsar vs. CA)

- The cabinet secretaries were appointed as acting secretaries of their respective departments while Congress is in session. Thus, the Senators filed a petition to compel the president to extend regular appointments.

(2) There are four situations where ARTICLE IX-C, Sec. 1, Par. 2 will apply:

SC: Nature of the Power to Appoint

a) where an ad interim appointee to the Comelec, after confirmation by the Commission on appointment, serves his full seven-year term;

- The power to appoint is essentially executive in nature, and the legislature may not interfere with the exercise of this power except in those instances when the Constitution expressly allows it to interfere.

b) where the appointee, after confirmation, swerves a part of his term and then resigns before his seven-year term of office ends;


- Appointment is discretionary.

- The essence of an appointment in an acting capacity is its temporary nature. It is a stop-gap measure intended to fill an office for a limited time until the appointment of a permanent occupant to the office. In case of vacancy in a n office occupied by an alter ego of the President, such as the office of a department secretary, the President must necessarily appoint an alter ego of her choice as acting secretary before the permanent appointee of her choice could assume office. - Hence, the President cannot be compelled especially since the positions of cabinet secretary require trust and confidence.

Distinctions between Ad Interim and Acting Appointments Ad Interim

Acting Appointments

(2) Office of the Ombudsman (3) Secretaries (4) Undersecretaries (5) Chairmen or heads of bureaus or offices, including GOCC‘s and their subsidiaries (2) ARTICLE VII, Sec. 15 – ―Two months immediately before the next presidential elections and up to the end of his term, a President or acting President shall not make appointments except temporary appointment to executive positions when continued vacancies therein will prejudice public service or endanger public safety.‖ - This applies only to a presidential election: every 6 years.

extended only during a recess of Congress

extended anytime there is a vacancy

Q: To what kind of appointment is this directed against?

permanent in nature

merely temporary

A: This is directed against 2 types of appointments: (In Re: Valenzuela and Vallaria)

requires confirmation by Commission on Appointments

the

does not require such confirmation

(1) those made for buying votes (to influence the outcome of Presidential elections)

Note: Mootness of the Petition – When the Congress adjourned, GMA extended ad interim appointments but this is an exception because the case is capable of repetition yet evading review.

- refers to those appointments made within the 2 months preceding a Presidential election and are similar to those which are declared election offenses in the Omnibus Election Code.

LIMITATIONS ON THE APPOINTING POWER OF THE PRESIDENT

(2) those made for partisan considerations (the so-called ―midnight appointments‖)

(1) ARTICLE VII, Sec. 13, Par. 2 – ―The spouse and relative by consanguinity or affinity within the fourth civil degree of the President shall not, during his tenure be appointed as member of the Constitutional Commissions, or the Office of the Ombudsman, or as secretaries, undersecrataries, chairmen or heads of bureaus or offices, including government-owned or controlled corporations and their subsidiaries.‖ (nepotic appointments)

- refers to appointments made after election day but before the term of the next president begins (30 June).

- This is a prohibition against NEPOTISM on the President.

- Hence, this provision contemplate not only midnight appointments (appointments made for partisan considerations where an outgoing President fells up all vacant positions thereby preempting an incoming president of his prerogative) but also appointments presumed made for the purpose of influencing the outcome of the Presidential election.

Q: To what positions?

AYTONA VS. CASTILLO

A: (1) Constitutional Commissions – COA, Comelec, CSC

- After the proclamation of Diosdado Macapagal as duly elected President, President Carlos P. Garcia, who was defeated in his bid for reelection,


became no more than a ―caretaker‖ administrator, whose duty was to prepare for the orderly transfer of authority to the incoming President. IN RE: HON. MATEO VALENZUELA AND HON. PLACIDO VALLARTA - Before the 11 May 1998 elections, President Ramos appointed on 30 March 1998 2 gentlemen as RTC judges. On 14 May 1998, already after the elections, their appointments were transmitted to the Office of the Chief Justice. However, the 2 were able to secure advance copies of their appointments so they were able to take their oaths and assumed office.

(3) ARTICLE VII, Sec. 13, Par. 1 – ―The President, Vice President, the Members of the Cabinet and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during said tenure, directly or indirectly, practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege, granted by the Government or any subdivision, agency or instrumentality thereof, including government-owned and controlled corporations or their subsidiaries. They shall strictly avoid conflict in the conduct of their office.‖ - This is a prohibition against HOLDING MULTIPLE POSITIONS.

SC: The questioned appointments are void. They were unquestionably made during the period of the ban. Consequently, they come within the prohibition relating to appointments which are considered to be for the purpose of buying votes or influencing the elections. - The only exception is temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety. However, this case does not even fall within the exception. Their appointments are not temporary and not to an executive but to the judiciary.

Q: Directed against whom? A: (1) President (2) Vice President (3) Member of the Cabinet and their deputies or assistants

Q: How do you detect if it‘s a midnight appointment or for purpose of votebuying?

- applies to private employment

A: If the appointment was made within 2 months immediately preceding the presidential election, then the purpose is for vote-buying or to influence the outcome of the elections. IF the appointment was made after the Presidential election but before the outgoing president‘s term end (his term ends noon of June 30), then it is midnight appointment.

- the idea is for them to focus in their functions

DE RAMA VS. CA

EX: The Vice President may be appointed as a Member of the Cabinet xxx. (ARTICLE VII, Sec. 3, Par. 2)

- Ma. Evelyn S. Abeja was a municipal Mayor. When her term is about to end, she filled up all the positions before she vacated her position. When her successor sit, there was no more vacancy and all the appointments were nullified by the latter on the ground that they were midnight appointments.

The Secretary of Justice is an ex-officio Member fo the Judicial and Bar Council (ARTICLE VIII, Sec. 8, Par. 1)

SC: The records reveal that when De Rama brought the matter of recalling the appointments of the 14 respondents before the CSC, the only reason he cited to justify his action was that these were ―midnight appointments‖ that are forbidden under ARTICLE VII, Sec. 15 of the Constitution. However, the CSC ruled and correctly so, that the said prohibition applies only to presidential appointments. In truth and in fact, there is no law that prohibits local elective officials from making appointments during the last days of his or her tenure.


Q: What are the exceptions? A: (1) unless otherwise provided in this Constitution

(2) If they will hold that other office in an ex-officio capacity. (Civil Liberties Union vs. Exec. Sec.) CIVIL LIBERTIES UNION VS. EXECUTIVE SECRETARY President Aquino issued EO 284 allowing member of cabinet to hold not more than 2 other positions in the government including government-owned and controlled corporations. EO 284 was issued when President Aquino still exercises legislative powers. The idea was to have them earn more.

Pursuant to EO 284, President Aquino appointed member of her Cabinet to other positions. Civil Liberties Union questioned this on the ground that as Members of the Cabinet, they are prohibited from holding other positions under ARTICLE VII, Sec. 13. On the other hand, the Solicitor General contends that they are covered by ARTICLE IX-B, Sec. 7, Par. 2 because they are appointive officials. As members of cabinet, they can hold other office if a law allows it, in this case, there is a law, EO 284. SC: The contention of Civil Liberties Union is correct. Section 7, ARTICLE IX-B, Par. 2 (―Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries.‖) is meant to lay down the general rule applicable to all appointive public officials and employees while Section 13, ARTICLE VII is meant to be the exception applicable only to the President, Vice President, Members of the Cabinet and their deputies and assistants. - The evident purpose of the framers of the 1987 Constitution is to impose a stricter prohibition.

ground that Elma, as a member of cabinet, he is prohibited from holding 2 positions under ARTICLE VII, Section 14. SC: The prohibition in Section 13, ARTICLE VII of the 1987 Constitution does not apply to Elma since neither the PCGG Chairman nor the CPLC is a cabinet secretary, undersecretary, or assistant secretary even if the former may have the same rank as the latter positions. Even if Section 13, ARTICLE VII is not applicable, Elma still could not be appointed concurrently to the offices of the PCGG Chairman and CPLC because neither office was occupied by him in an ex-officio capacity and the primary functions of one office do not require an appointment to the other post. Moreover, even if the appointments in question are not covered by Section 13, ARTICLE VII of the 1987 Constitution, said appointments are still prohibited under Section 7, ARTICLE IX-B, which covers all appointive and elective officials, due to the incompatibility between the primary functions of the offices of the PCGG Chairman and the CPLC. - PRINCIPLE OF INCOMPATIBLE OFFICE : one which may not be held by a member during his term without forfeiting his seat. EX: Fiscal and PAO

- Section 13, ARTICLE VII is a new provision not found in 1935 and 1973 Constitution.

Treasurer and Auditor Congressman and Cabinet Secretary

- This was a reaction to what happened during the Marcos Regime. There was proliferation of newly created agencies, instrumentalities, and government-owned or controlled corporations created by presidential decrees and other modes of presidential issuances where cabinet members, their deputies and assistants were designated to head or sit as member of the board with the corresponding salary, emoluments, per diems, allowances, and other perquisites of the office. This practice of holding multiple offices or positions in the government soon led to abuses by unscrupulous public officials who took advantage of this scheme for purposes of self-enrichment.

ARTICLE VI, Sec 13 – ―No Senator or Member of the House of Representatives may hold any other office or employment in the Government, or any subdivision, agency, or instrumentality thereof, including GOCC‘s or their subsidiaries, during his term without forfeiting his seat. Neither shall he be appointed to any office which may have been created or emoluments thereof increased during the term for which he was elected.‖

- EO 284 was declared null and void!

referred to in the first sentence

referred to in the second sentence

PUBLIC INTEREST CENTER, INC. VS. ELMA

one which may not be held by a member during his TERM of office without forfeiting his seat.

one which is forbidden by law even if he is willing to forfeit his seat.

Magdangal B. Elma was appointed by the President as Chairman of the PCGG. At the same time, he was appointed as Chief Presidential Legal Counsel. At that time, PCGG was placed directly under the Office of the President and PCGG Chairman has the same rank, position, and salary as that of a cabinet secretary. Public Interest center questioned this on the


INCOMPATIBLE OFFICE

TERM: provided by law TENURE: actual stay in office -not necessary for him to resign before he accepts the other office; It

FORBIDDEN OFFICE

CONTROL

is automatic.

a member may be validly appointed but he forfeits his seat.

he may not be validly appointed

more of an inhibition

more of a prohibition

Q: Congressman X was appointed as Secretary of DENR, can he validly accept the appointment?

Q: Congress created a new office, Urban Poor Commission. It appropriated P10B. Congressman X resigned and applied for that position. Can he be validly appointed?

A: Yes.

A: No. It was created during the term in which he was elected. Even if he is willing to resign, He cannot still be appointed because it is a forbidden office.

exercised over all executive departments bureaus, and offices

GENERAL SUPERVISION exercised over local governments ARTICLE X, Section 4 – ―The President of the Philippines shall exercise general supervision over local governments xxx‖ ARTICLE II, Section 25 – ―The State shall ensure the autonomy of local governments.‖

Q: What is CONTROL? A: (1) to direct the performance of a duty; (2) to restrain the commission of acts; (3) to review, reverse, revise, alter, or modify the decisions of his subordinates; or (4) to substitute his own decision over that of his subordinates.

Q: Can he still go back to his former position? Q: Does the President have CONTROL over local government units? A: No! - In this case, the function of CPLC is to review decisions of officers under the Office of the President and among them is the PCGG.

CONTROL POWER ARTICLE VII, Sec. 17 – ―The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed.‖

A: No. His power is limited to GENERAL SUPERVISION. The power of supervision means ―overseeing or the authority of an officer to see that the subordinate officers perform their duties. If the subordinate officers fail or neglect to fulfill their duties, the official may take such action or step as prescribed by law to make them perform their duties. The President‘s power of general supervision means no more than the power of ensuring that laws are faithfully executed or that subordinate officers act within the law. (JOSON VS. TORRES) - Hence, the President‘s power of general supervision means to oversee; to see to it that the local governments and their officials perform their functions in accordance with law. No more than that. - Control is said to be the very heart of the power of the President. (Joson vs. Torres) Q: What is an EXECUTIVE DEPARTMENT, BUREAU, OR OFFICE?


A: EO 292 : ADMINISTRATIVE CODE OF 1987: DEPARTMENT: any of the executive departments created by law. Ex: Depatment of Finance BUREAU: a principal subdivision of a department. Ex: Bureau of Internal Revenue and Bureau of Customs OFFICE: a major functional unit of a department or bureau. Ex: Office of the Secretary of Finance, Regional Office of BIR

There were 10 administrative charges against Mayor Ganzon of Iloilo in the Office of the President. The Office of the President investigated. DILG Secretary, as the President‘s alter ego, preventively suspended Ganzon. Ganzon questioned this contending that the Constitution has left the President mere supervisory powers which supposedly excludes the power of investigation and denied her control which allegedly embraces disciplinary authority. According to him, the President may not validly investigate and much more cannot place him under preventive suspension which is an incident of the power to investigate.

- All of these are under the control of the President. DOCTRINE OF QUALIFIED POLITICAL AGENCY or ALTER EGO

SC: The impression of Ganzon is mistaken. Legally, supervision is not incompatible with disciplinary authority. Investigating is not inconsistent with overseeing although it is a lesser power than ―altering‖.

The acts, decisions of the members of the cabinet, heads of bureaus and offices, being alter ego of the President, rendered or performed in the regular course of business are deemed to the acts of the President, unless reprobated by him.

- How can you expect the President to determine that the following performs their powers and functions in accordance with law if you will deny him the power to investigate.

PIMENTEL VS. AGUIRRE

- The power to investigate is an incident of the power of control.

Allegedly, we were experiencing economic difficulties then so President Estrada issued AO 43, amending Section 4 of AO 372, by reducing to five percent the amount of Internal revenue Allotment (IRA) to be withheld from the LGU‘s. Pimentel, Jr. et al. contends that in issuing AO 43, the President was in effect exercising the power of control over LGU‘s while the Constitution vests in the President, however, only the power of general supervision over LGU‘s. Also, they argued that the directive is in contravention of Section 286 of the LGC and of Section 6, Article X of the Constitution providing for the automatic release to each of these units its share in the national internal revenue.

MILITARY POWERS ARTICLE VII, Sec 18 – 3 DISTINCT MILITARY POWERS OF THE PRESIDENT (1) Calling out power as the Commander-in-chief of the Armed Forces of the Philippines (2) Power to proclaim martial law (3) Power to suspend the privilege of the writ of habeas corpus

SC: Such withholding clearly contravenes the Constitution and the law. The Constitution vests the President with the power of supervision, not control, over LGU‘s. Such power enables him to see to it that LGU‘s and their officials execute their tasks in accordance with law. While he may issue advisories and seek their cooperation in solving economic difficulties, he cannot prevent them from performing their tasks and using available resources to achieve their goals. He may not withhold or alter any authority or power given them by law. Thus, the withholding of a portion of internal revenue allotments legally due them cannot be directed by administrative fiat. GANZON VS. CA


INSTANCES WHEN THE PRESIDENT MAY CALL OUT AFP – To suppress (1) lawless violence (2) invasion (3) rebellion INSTANCES WHEN THE PRESIDENT MAY DECLARE MARTIAL LAW or SUSPEND THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS (1) invasion } } when public safety requires it

(2) rebellion }

- Ninoy Aquino questioned the assumption of jurisdiction of the military tribunals

Other Limitations

-

predictably, he was sentenced to death by musketry (firing

squad) - For a period not exceeding 60 days - sentence was not carried out but he died just the same - Expressly been made subject to judicial review under ARTICLE VII, Sec. 18, Par. 3 – ―The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of Martial Law or the suspension of the privilege of the writ of habeas corpus or the extension thereof, and must promulgate its decision thereon within thirty days from its filing.‖ (LANSANG VS. GARCIA) - Within 48 hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. - The Congress, voting jointly, by a vote of at least a majority of all its members in regular or special session,, may revoke such proclamation or suspension, which revocation shall not be set aside by the President.

- Several Filipinos abroad were against the decision in Aquino vs. Commission – they were known as Olaguer group. - They were out to embarrass the Marcos Government. - Unfortunately, the Lovely brothers, among their con-conspirators accidentally detonated a bomb. - They did not die and the group was arrested. - All were sentenced to die by musketry. - While the case was pending before the SC, EDSA I happened.

- Upon the initiative of the President, the Congress, may in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.

- Justice Teehankee, the lone dissenter in the Aquino case, became the Chief Justice of SC and he penned the Olaguer doctrine.

- The Congress, if not in session, shall, within 24 hours following such proclamation or suspension, convene in accordance with its rules without need of a call.

- ARTICLE VII, Sec. 18, Par. 5 – ―The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion.‖

- A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, NOR authorize the conferment of jurisdiction on military courts and agencies over civilians, where civil courts are able to function, (OLAGUER DOCTRINE) Nor automatically suspend the privilege of the writ.

- In connection with ARTICLE III, Sec. 13 – If the offense is bailable, one can still post bail because under this – ―The right to bail shall not be impaired even if the privilege of the writ of habeas corpus is suspended.‖

OLAGUER DOCTRINE

- ARTICLE VII, sec. 18, Par. 6 – ―During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within 3 days, otherwise he shall be released.‖

- Superseded AQUINO VS. COMMISSIONER - during martial law, military courts may assume jurisdiction over civilians


PARDONING POWER ARTICLE VII, Sec.19 – ―Except in cases of impeachment, or as otherwise provided in this Constitution, the President may grant reprieves,

commutations, and pardons and remit fines and forfeitures, after conviction by final judgment. He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress.‖ FIVE MATTERS COVERED (1) (2) (3) (4) (5)

(2) judicial admissions (3) presumptions - Under Section1, Rule 129 of the Rules of Court, one of the matters which the courts must take judicial notice of is the official acts of the legislative, executive and judicial departments of the Philippines. - Hence, amnesty, which is an official act of the President, no longer requires proof.

To grant reprieves To grant commutations To grant pardons To remit fines and forfeitures To grant amnesty

- On the other hand, pardon, being a private act of the President, requires proof and the convict who was granted such pardon has the burden of proof.

LIMITATIONS OF THE PARDONING POWER AMNESTY (1) does not apply in cases of impeachment (ARTICLE VII, Sec. 19) - segregated from the 4 others - concurrence of the majority of all member of congress is required - conviction by final judgment is not required unlike the 4 others

(2) there must first be conviction by final judgment (ARTICLE VII, Sec. 19) (3) not applicable to legislative contempt

PARDON

AMNESTY

concurrence of congress is not required

concurrence of congress is required

conviction required

is

may be granted even without prior conviction by final judgment

not

erases whatever shade of guilt there was

usually extended to individuals convicted of common crimes

extended to group of individuals charged of political offenses

private act of the President

official act of the President

by

final

judgment

may mean forgiveness forgetfulness

but

- Important to know distinction because of judicial notice - Under the law on evidence, there are 3 things which need not be proven: (1) those matters which the court must take judicial notice of


(4) not applicable to election offenses without favorable recommendation of Comelec (ARTICLE IX-C, Sec. 5)

REPRIEVE – suspension or stay of execution of a death convict Probation – suspension of penalty COMMUTATION – reduction of penalty by 1 degree from death to RP Q: Is pardon available to those guilty of administrative offenses? A: Yes. Pardon is available not only to those guilty of criminal offense but also to those guilty of administrative offense. Section 19, ARTICLE VII makes no distinction between criminal offense and administrative offense except with respect to impeachment. If persons convicted of heinous crimes where evidence of guilt is beyond reasonable doubt are entitled to pardon, why do we have to deny the same to those convicted of administrative offenses where only substantial evidence is required? (LLAMAS VS. ORBOS)

MONSANITO VS. FACTORAN – Not entitle to be reinstated; no backwages The Assistant Municipal Treasurer was convicted of malversation through falsification of public document. Later, he was granted absolute pardon by the President, when he was released, he demanded to be reinstated to his former position and be paid backwages. SC: Pardon granted after conviction frees the individual from all the penalties and legal disabilities and restores him to all his civil rights. But unless expressly grounded on the person‘s innocence (which is rare), it cannot bring back lost reputation for honesty, integrity, and fair dealing. This must be constantly kept in mind, lest we lose track of the true character and purpose of the privilege. Pardon does not ipso facto restore a convicted felon to public office necessarily relinquished or forfeited by reason of the conviction although such pardon undoubtedly restores his eligibility for appointment to that office. - The very essence of a pardon is forgiveness or remission of guilt. Pardon implies guilt. It does not erase the fact of the commission of the crime and the conviction thereof. It does not wash out moral stain. It involves forgiveness not forgetfulness. - A pardon looks to the future. It is not retrospective. It makes no amends for the part. It affords no relief for what has been suffered by the offender. - Hence, she is excused from serving sentence; but in the eyes of the law, she is still a convict. Unless the grant expressly so provides, she cannot be reinstated. And since she is not entitled to be reinstated, with more reason that she is not entitled to backwages. - It does not impose upon the government any obligation to make reparation for what has been suffered since the offense has been established by judicial proceedings, that which has been done or suffered while they were in force is presumed to have been rightfully done and justly suffered and no satisfaction for it can be required.

based on lack of proof beyond reasonable doubt but based on an express finding that he was innocent of the crime charged. Garcia sought reinstatement to his former position in view of his acquittal in the criminal case. Bureau of Telecommunications denied his request. Hence, Garcia pleaded to the President for executive clemency. Acting on the favorable endorsements of the then Ministry of Transportation and Communications and the CSC, the President granted Garcia executive clemency. Then Garcia filed with COA a claim for payment of backwages. This was denied by COA on the ground that executive clemency granted to him did not provide for the payment of back salaries and that he has not been reinstated in the service. SC: Garcia should not be considered to have left his office for all legal purposes, so that he is entitled to all the rights and privileges that accrued to him by virtue of the office held, including backwages. If the pardon is based on the innocence of the individual, it affirms this innocence and makes him a new man and as innocent as if he had not been found guilty of the offense charged. When a person is given pardon because he did not truly commit the offense, the pardon relieves the party from all punitive consequences of his criminal act, thereby restoring him his clean name, good reputation and unstained character prior to the finding of guilt. - The bestowal of executive clemency on Garcia in effect completely obliterated the adverse effects of the administrative decision which found him guilty of dishonesty and ordered his separation from the service. This can be inferred from the executive clemency itself exculpating Garcia from the administrative charge and thereby directing his reinstatement, which is rendered automatic by the grant of the pardon. This signifies that petitioner need no longer apply to be reinstated to his former employment. He is reinstated to his office ipso facto upon the issuance of the clemency. His automatic reinstatement entitles him to backwages. - He is entitled to full backwages for 8 years. Verily, law, equity, and justice dictate that Garcia be afforded compassion for the embarrassment, humiliation, and above all injustice caused to him and his family by his unfounded dismissal. This is a little measure. SC even commended him for protecting government property.

GARCIA VS. COA Garcia was an employee of the Bureau of Telecommunications. Several properties of BT were lost. He was summarily dismissed from the service on the ground of dishonesty. It became final subsequently. A criminal case for qualified theft was filed against Garcia based on the same facts obtaining in the administrative actions. After a full blown trial, Garcia was acquitted not


ESTRADA VS. DESIERTO Leo Echegaray was convicted of qualified rape. At that time, the death penalty is still in effect. On the date he is to be executed by lethal injection, the SC issued a TRO. This was criticized on the ground, among others, that

it encroached on the power of the President to grant reprieve under Sec. 19, ARTICLE VII of the 1987 Constitution.

LIMITATIONS ON THE BORROWING POWER: (1) There must be prior concurrence of the Monetary Board.

SC: Sec. 19, ARTICLE VII of the 1987 Constitution is simply the source of power of the President to grant reprieves, commutations, and pardons and remit fines and forfeiture after conviction by final judgment. This provision, however, cannot be interpreted as denying the power of the courts to control the enforcement of their decisions after the finality. In truth, an accused who has been convicted by final judgment still possesses collateral rights and these rights can be claimed in the appropriate courts. The suspension of such a death sentence is indisputably an exercise of judicial power. It is not usurpation of the presidential power of reprieve though its effect is the same – the temporary suspension of the execution of the death convict. The powers of the Executive, Legislative, and the Judiciary to save the life of a death convict do not exclude each other for the simple reason that there is no higher right than the right to life. Q: Discuss the nature of a CONDITIONAL PARDON. A: A CONDITIONAL PARDON is in the nature of a contract between the sovereign power of the Chief Executive and the convicted criminal to the effect that the former will release the latter subject to the condition that if he does not comply with the terms of the pardon, he will be recommitted to prison to serve the unexpired portion of the sentence or an additional one. By the pardonee‘s consent to the terms stipulated in this contract, the pardonee has thereby placed himself under the supervision of the Chief Executive or his delegate who is duty-bound to see to it that the pardonee complies with the terms and conditions of the pardon. (In Re: Wilfredo Sumulong Torres) Q: Is the grant or revocation of conditional pardon by the President subject to judicial review?

(2) Subject to such limitations as may be provided by law.

TREATY-MAKING POWER ARTICLE VII, Sec. 21 – ―No treaty or international agreement shall be valid and effective unless concurred in by at least 2/3 of all the Members of the Senate.‖

Q: Who has the power to ratify treaties? A: The power to ratify is vested in the President and not in the legislature. The role of the Senate is limited only to giving or withholding its consent or concurrence to the ratification. (Bayan vs. Zamora)

- What requires concurrence is a treaty or international agreement NOT an executive agreement.

Q: Is an EXECUTIVE AGREEMENT INTERNATIONAL AGREEMENT?

equally

binding

as

an

BORROWING POWER

A: Yes. In international law, there is no difference between treaties and executive agreements in their binding effect upon states concerned as long as the functionaries have remained within their powers. International law continues to make no distinction between treaties and executive agreements. They are equally binding obligations upon nations.

ARTICLE VII, Sec. 20 – ―The President may contract or guarantee foreign loans on behalf of the Republic of the Philippines with the prior concurrence of the Monetary Board, and subject to such limitations as may be provided by law xxx.‖

- The distinction between TREATY and EXECUTIVE AGREEMENT is more of a municipal law – whether concurrence of the Senate is required or not.

A: No! This exercise of presidential judgment is beyond judicial scrutiny. (In Re: Wilfredo Sumulong Torres)


Q: How to determine whether an agreement is executive or international?

A: Petitioners‘ contention on this point was upheld.

A:

- Section 21, ARTICLE VII deals with treaties or international agreements in general, in which case, the concurrence of at least 2/3 of all the Members of the Senate is required to make the subject treaty or international agreement valid and binding on the part of the Philippines. This provision lays down the general rule on treaties or international agreements and applies to any form of treaty with a wide variety of subject matter, such as, but not limited to, extradition or tax treaties or those economic in nature. All treaties or international agreements, entered into by the Philippines, regardless of subject matter, coverage, or particular designation or appellation, requires the concurrence of the Senate to be valid and effective.

INTERNATIONAL

EXECUTIVE

- involves major policy that policy - more or less permanent and of duration

-

involves implementation of

more or less temporary longer and of short duration

Q: Is VFA a treaty? A: Yes. The President himself considered it as a treaty. He referred the VFA to the Senate for concurrence. Q: What are the conditions before foreign military bases, troops, or facilities may be allowed in the Philippines pursuant to ARTICLE XVIII, Sec. 25 of the 1987 Constitution? A: Sec. 25, ARTICLE XVIII disallows foreign military bases, troops or facilities in the country unless the following conditions are sufficiently met: (a) it must be under a treaty; (b) the treaty must be duly concurred in by the Senate and when so required by Congress, ratified by a majority of the votes cast by the people in a national referendum; and (c) recognized as a treaty by the other contracting state

BAYAN VS. ZAMORA The President entered into a VFA with the US under which American troops will be allowed to enter the Philippines to conduct joint military exercises with members of the Philippine armed forces. He subsequently transmitted said VFA to the Senate for concurrence invoking his treaty-making power under Section 21, ARTICLE VII of the 1987 Constitution. Petitioners, who are opposed to the VFA, challenged the constitutionality of said VFA contending that it was grave abuse of discretion on the part of the President to transmit the same to the Senate invoking Section 21, ARTICLE VII of the Constitution as the controlling provision should have been Section 25, ARTICLE XVIII. Q: Which Constitutional provision was upheld?


- In contrast, Section 25, ARTICLE XVIII is a special provision that applies to treaties which involve the presence of foreign military bases, troops, or facilities in the Philippines. Under this provision, the concurrence of the Senate is only one of the requisites to render compliance with the constitutional requirement and to consider the agreement binding on the Philippines. - Undoubtedly, section 25, ARTICLE XVIII which specifically deals with treaties involving foreign military bases, troops, or facilities should apply in the instant case. It is a finely-imbedded principle in statutory construction that special provision or law prevails over a general one. To a certain extent and in a limited sense, however the provisions of Section 21, ARTICLE VII will find applicability with regard to the issue and for the sole purpose of determining the number of votes required to obtain the valid concurrence of the Senate. Q: The nature of the petition filed was for certiorari and prohibition. Did it constitute grave abuse of discretion on the part of the President when he submitted the VFA to the Senate invoking Section 21 instead of Section 25? A: No! The President, in ratifying the VFA and in submitting the same to Senate for concurrence, acted within the confines and limits of the powers vested in him by the Constitution. It is of no moment that the President, in the exercise of his wide latitude of discretion and in the honest belief that VFA falls within the ambit of Section 21, ARTICLE VII of the Constitution referred to the Senate for concurrence. Certainly, no abuse of discretion much less a grave, patent and whimsical abuse of judgment, may be imputed to the President in his act of ratifying the VFA and referring the same to the Senate for the purpose of complying with the concurrence requirement embodied in the fundamental law. In doing so, the President merely performed a constitutional task and exercised a prerogative that chiefly pertains to the functions of his office.

BUDGETARY POWER ARTICLE VII, Sec. 22 – ―The President shall submit to the Congress within 30 days from the opening of every regular session, as the basis of the general appropriations bill, a budget of expenditures and sources of financing, including receipts from existing and proposed revenue measures.‖

independence

- Correlate with Section 25(1), ARTICLE VI – ―Congress may not increase the appropriations recommended by the President for the operation of the Govt as specified in the budget. The form, content, and manner of preparation of the budget shall be prescribed by law.‖ - The most that Congress could do is to trim down or slash the budget! INFORMING POWER ARTICLE VII, Sec. 23 – ―The President shall address the Congress at the opening of the regular session. He may also appear before it at any other time.‖

VOTING - Only the members present and who participated in the deliberations on the issues in the case shall vote. - All cases xxx which shall be heard en banc xxx shall be decided with the concurrence of a majority of members who actually took part in the deliberations on the issues in the case and voted thereon. - Cases or matters heard by division shall be decided or resolved with the concurrence of a majority of Members who actually took part in the deliberations on the issues in the case and voted thereon and in no case, without the concurrence of a t least 3 such members.

JUDICIAL DEPARTMENT JUDICIAL POWER

probity and independence

QUORUM = 8 MAJORITY = 5

- When the required number is not obtained, the case shall be decided en banc.

ARTICLE VIII, Sec. 1 TYPES OF POLITICAL QUESTIONS

- No doctrine or principle of law laid down by the court in a decision rendered en banc or in a division may be modified or reversed except by the court sitting en banc.

THREE IMPORTANT FUNCTIONS OF THE COURT REQUISITES FOR THE EXERCISE OF JUDICIAL REVIEW COMPOSITION OF THE SUPREME COURT – Section 4, ARTICLE VIII - 15 Justices: Chief Justice and 14 associate Justices - May sit en banc or, in its discretion, in divisions of 3, 5, or 7 members - In practice, sits in division of 5 - First division: Chief Justice = Chairman st - Second division: 1 most senior = Chairman nd - Third division: 2 most senior = Chairman QUALIFICATION – Section 7, ARTICLE VIII OF MEMBERS OF SUPREME OF ANY LOWER COLLEGIATE COURT COURT (1) natural born citizen of the Phils. (1) citizen of the Phils. (2) at least 40 years of age (2) member of the Bar (3) must have been for 15 years or (3) possesses the qualifications more a judge of a lower court or prescribed by Congress engaged in the practice of law in the Phils (4) must be a person of proven (4) must be a person of proven competence, integrity, probity and competence, integrity Political Law Review Notes (Atty. Edwin Sandoval) Prepared by: Atty Joan P. Gamboa

Q: What cases are to be heard by the Supreme Court en banc? A: (1) Cases in which the constitutionality or validity of any treaty, international or executive agreement, law, executive order, or presidential decree, proclamation, order, instruction, ordinance or regulation is in question; (2) Criminal cases in which the appealed decision imposes the death penalty; (3) Cases raising novel questions of law; (4) Cases affecting ambassadors, other public ministers and consuls; (5) Cases involving decisions, resolutions, or orders of the CSC, Comelec, and COA; (6) Cases where the penalty to be imposed is the dismissal of a judge, officer or employee of the judiciary, disbarment of a lawyer, or either the

suspension of any of them for a period of more than one (1) year or a fine exceeding P10,000 or both;

(7) A representative of the private sector

]

- Term: (7) Cases where a doctrine or principle laid down by the court en banc or in division may be modified or reversed; (8) Cases assigned to a division which in the opinion of at least (3) members thereof merit the attention of the court en banc and are acceptable to a majority of the actual membership of the court en banc; and (9) All other cases as the court en banc by a majority of its actual membership may deem of sufficient importance to merit its attention. CONSTITUTIONAL PROVISIONS THAT TEND TO STRENGTHEN THE INDEPENDENCE OF THE JUDICIARY (1) ARTICLE VIII, Sec. 9 – ―The Members of the Supreme Court and judges of lower courts shall be appointed by the President from a list of at least three nominees prepared by the Judicial and bar Council for every vacancy. Such appointments need no confirmation.‖

JUDICIAL AND BAR COUNCIL (Section 8, Article VIII) Functions:

The regular members of the Council shall be appointed by the President for a term of 4 years with the consent of the Commission on Appointments.

(2) ARTICLE VIII, Sec. 3 – ―The Judiciary shall enjoy fiscal autonomy. Appropriations for the Judiciary may not be reduced by the legislature below the amount appropriated for the previous year and after approval, shall be automatically and regularly released.‖

Q: What is fiscal autonomy? A: Fiscal autonomy contemplates a guarantee of full flexibility to allocate and utilize their resources with the wisdom and dispatch that their needs require. It recognizes the power and authority to levy, assess and collect fees, fix rates of compensation not exceeding the highest rates authorized by law for compensation and pay plans of the govt and allocate and disburse such sums as may be provided by law or prescribed by them in the course of the discharge of their functions. Fiscal autonomy means freedom from the outside control.

-principal function of recommending appointees to the judiciary -may exercise such other functions and duties as the SC may assign to it

STATE PRINCIPLES AND POLICIES ARTICLE II (AND RELATED PROVISIONS), 1987 CONSITUTION

Composition: I.

General Considerations:

(1) Chief Justice- as ex officio Chairman (2) Secretary of Justice

} as ex officio members

(3) A representative of the Congress

}

(4) A representative of the Integrated Bar ]as regular members (5) A professor of law (6) A retired member of the SC


Tañada v. Angara – By its very nature, Art. II are policies and principles that may guide the Legislature in the enactment of laws and the courts in its interpretation

] ]

Hence, as a general rule, these provisions are non-self-executing BUT – a provision that is complete in itself, and provides sufficient rules for the exercise of rights, is self-executing Thus, certain provisions under Art. II are self-executing

Eg.: Sec. 16 (See Oposa v. Factoran) The 1st sections are entitled ―Principles‖, while the rest are entitled ―Policies‖

Also, the President can only use military powers in case of invasion, rebellion, etc. He has no power to declare war. BUT, does not that when we are attacked, we cannot engage in war!

However, there seems to be no clear distinction between what are ―Principles‖ and what are ―Policies‖.

Constitution only renounces offensive war, not defensive war This is one of the Rights of States: 1. Sovereignty and Independence 2. Property and Jurisdiction 3. Equality 4. Existence and Self-Defense 5. Diplomatic Intercourse

Sec. 1, Art. Ii – “The Philippines I a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them.

II.

This is prescriptive of the kind of government that we should have – it should be ―democratic‖ and ―republican‖. We cannot have any other kind of government Note that in International Law, it is not concerned with the kind of government. What is essential is that there is a government, since it is an essential element of the State.

This is constituent with the policy of the UN, of which we are a member. ―Adopt: the generally accepted principles of international law as part of the law of the land‖ Reaffirms the Doctrine of Incorporation

―Republican‖ – hence, we have a representative type of government – we elect our leaders.

Examples of generally accepted principles of International Law 1. Pacta sunt servanda 2. Rebus sic stantibus 3. State Immunity from Suit 4. Sovereign Equality if States

Thus, we have Art. V on Suffrage, and Art. IX-C on COMELEC Relate to Art. XI, Sec 1 – ―Public office is a public trust. Public officers and employees must at all times be accountabels to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives.‖ Because sovereignty resides in the people, public office is a public trust. Hence, there is the sense of accountability. III. Sec. 2, Art II – “ The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adhere to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations” War is renounced as an instrument of national policy. Thus, no one has the power to declare war BUT: Congress can declare a ―State of War‖


Sec. 3, Art II – “Civilian authority is at all times, supreme over the military. The AFP is the protector of the people and the State. Its goal is to secure the sovereignty of the State snd the integrity of the national territory.

IV.

This is known as the “Civilian Supremacy Clause” It is expressly stated that it is SUPREME over the military Role of the AFP: 1. Secure State sovereignty 2. Secure integrity of the national territory Q:

The provision says the AFP is the ―protector of the people and the State‖ Does this justify a coup d‘ etat?

A: NO! This clause should not be lifted out of context. Look st at the 1 sentence of the provision – that the civilian authority is supreme

over the military. Thus, the AFP‘s role must be understood within the context of civilian supremacy.

Service to the State Q:

It states that the government may call upon the people to defend the State. Does this amount to involuntary servitude?

A:

NO! This is an exception to the rule n involuntary

INTEGRATED BAR OF THE PHILS. v. ZAMORA FACTS : Estrada issued an LOI deploying the marines all over Metro Manila HELD: (1) Civilian Supremacy Clause not Violated – The calling of the marines in this case constitutes permissible use of military assets for civilian enforcement. The limited participation of the Marine is evident in the provisions of the LOI, which provides the metes and bounds of their authority. The local police forces are in charge of the visibility patrols – the real authority belongs to the PNP, the Metro Manila Police Chief is the overall leader of the PNP-Philippine Marines joint visibility patrols. (2) Deployment of Marines to assist the PNP does not unmake the civilian character of the PNP – the Marines render only assistance in conducting the patrols. There is no insidious incursion of the military in civilian affairs. In fact, military assistance to civilian authorities is rendered in the following actuations: elections, administration of the Philippine Red Cross, relief and rescue operations during calamities and disasters, amateur sports, promotion and development, development of the culture and the arts, conservation of natural resources, implementation of the agrarian reform program, enforcement of customs laws, composite civilian-military law enforcement activities, conduct of licensure examinations, conduct of nationwide tests for elementary and highschool students, anti-drug enforcement activities, sanitary inspections, conduct of census work, administration of the Civil Aeronautics Board, assistance in installation of weather forecasting devices, and peace and order policy formulation in LGUs. V.

Sec. 4, Art. II – “The prime duty of the Government is to serve and protect the people. The Government may call upon the people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions provided by law, to render personal military on civil service.”

servitude: Exceptions to the rule on involuntary servitude: 1. Military service to defend the State 2. Penal punishment 3. Assumption of jurisdiction of DOLE in labor cases 4. Mariners and pilots 5. Minor children under the patria potestas of parents Note that the provisions says ―PERSONAL service‖ Thus, one cannot hire mercenaries to take one‘s place. VI.

Sec. 16, Art. II – “The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.” Q: This refers to a right of the people. Why is this found in Art. II and not in Art. III (Bill of Rights)? A: This right belongs to a different category of rights! – Oposa v. Factoran (224 SCRA 792, 1993) HELD: While this right is found under the Declaration of Principles and State Polivies, it does not follow that it is less important than any of the c ivil and political rights under the Bill of Rights. This right belongs to a different category of rights, since it concerns nothing less than self preservation and self- perpetuation, the advance of which may be said to predate all governments and Constitutions, since they are presumed to exist from the inception of humankind.

Q:

What is the Government‘s Duty?

This is self-executing provision! (Oposa v. Factoran)

A:

To serve and protect the people

Thus, its violation gives rise to a cause of action.


In relation to the Preferential Right of Subsistence Fishermen to the Use of Communal Marine and Fishing Resources

MANILA PRINCE HOTEL v. GSIS (GR. 118295, 02 May 1997, 267 SCRA 402)

Art. XIII, Sec. 7 – ― The State shall protect the rights of subsistence fishermen, especially of local communities, to the preferential use of communal marine and fishing resources, both inland and offshore.‖

FACTS: The Manila Hotel, which was previously owned by a US Corporation, was then owned by GSIS. Pursuant to the policy of Privatization, the GSIS held it up for bidding. The Filipino Corporation lost. However, it offered to match the bid of the winning foreign corporation.

TANO v. SOCRATES (GR. 110249, 21 Aug. 1997) FACTS: The Province of Palawan and City of Pierto Princesa enacted ordinances prohibiting the catching and exportation of live tropical fishes. Some fishermen were apprehended for violating said ordinances, They now challenge the constitutionality of said ordinances, invoking their preferential rights as subsistence fishermen to the use of our communal marine resources. HELD: The preferential rights of subsistence fishermen to the use of marine resources is not absolute. Marine resources, per the Regalian Dontrine and under Art. XII, Sec. 2, belongs to the State, and their exploration, development and utilization shall be under the State‘s full control and supervision. It is a policy enshrined in the Constitution that the State has the duty to protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature. The ordinances are meant precise to this, so that the enjoyment of our resources may be guaranteed for the present and future generations. The right to a balanced and healthful ecology carries with it a correlative duty to refrain from impairing the environment. VII.

Provisions on Economic Policy 1.

Art. XII, Sec. 10(2) – ―In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos‖ This is known as the ―Filipino First Policy‖


HELD: (1) Art. XI, Sec. 10 (2) is a self-executing provision. It is a mandatory, positive command that is complete in itself and which needs no further guidelines or implementing laws or rules for its enforcement, it does not require any legislation to put it in operation. (2) The word ―patrimony‖ means heritage. Heritage includes not only natural resources but also our national and cultural heritage. While the Manila Hotel was not originally Filipino, it has become truly Filipino, with its own history. It is a mute witness to our history. 2.

Art. II, Sec. 19 – ―The State shall develop a self-reliant and independent national economy effectively controlled by Filipinos‖ TAÑADA v. ANGARA (272 SCRA 18, [1997]) HELD: This economic policy does not rule out the entry of foreign investments, goods, and services, nor does it contemplate ―economic exclusion‖ or ―mendicancy in the international community‖. Aside from envisioning a trade policy based on ―equality and reciprocity‖, the fundamental law encourages industries that are ―competitive in bothe domestic and foreign markets‖, thereby demonstrating a clear policy against a sheltered domestic trade environment, but one in favor of the gradual development of robust industries that can compete with the best in the foreign market.

VIII.

Provisions on Education Academic Freedom – Art. XIV, Sec. 5 (2) – ―Academic freedom shall be enjoyed in all institutions of higher learning.‖ Note that the provision says ―institutions of higher learning‖

BUT: once the school admitted the student, there is now a contract between them – this a contract with PUBLIC INTEREST Thus, the school may not arbitrarily dismiss or expel a student – it should be based on either: 1.

This refers to the tertiary level only! 2. Q:

What is ―academic Freedom‖?

A:

This is the right of the school or college to dictate for itself, its aims and objectives, and how best to attain them – free from outside coercion or interference save possible when the overriding public welfare calls fro some restraint. It has a wide sphere of autonomy. (University of San Agustin v. CA [23 SCRA 761])

Subsumed in the tern academic freedom is the freedom to determine, on academic grounds, the following: 1.

Who may teach? This refers to the faculty

2.

What may be taught? This refers to the subject and courses to be offered

3.

How it shall be taught? This refers to the method of teaching

4.

Who may be admitted to study? This refers to the students

Right of the School to Determine Who may be Admitted to Study

Failure to meet minimum academic requirements prescribed for the school or for the subject; Violation of the school‘s rules of discipline

Also, the school must conduct an investigation – it must observe due process to establish the culpability of the student UP BOARD OF REGENTS v. CA (GR. 134625, 31 Aug. 1999) FACTS: Aroklaswamy Willuan Margaret Celine was given a masteral degree and was allowed to graduate. Subsequently, however, it was discovered that her thesis was plagiarized. Thus, UP revoked her degree. HELD: If an institution of higher learning can decide who can and who cannot study in it, it can also determine on whom it can convey the honor and distinction of being its graduates. If the conferment of an honor or distinction was obtained through fraud, a university can revoke or withdraw such honor or distinction. This freedom does not terminate upon a student‘s graduation, since it is precisely the ―graduation‖ that is in question. Art. XIV, Sec. 4(1) – ―The State recognizes the complementary role of public and private institution in the educational system and shall exercise reasonable supervision and regulation of all educational institutions‖ This deals with the State‘s power to regulate educational institutions

Thus, mandamus would not lie to compel a school to accept a student


MIRIAM COLLEGE FOUNDATION v. CA (348 SCRA 265, 15 Dec. 2000)

HELD: The power of the State to regulate educational institutions is subject to the requirement of reasonableness. Moreover, what is allowed is only the regulation and supervision of educational institutions not the deprivation of their rights. IX.

continuously lived as organized community on communally bounded and defined territory, and who have, under claims of ownership since time immemorial, occupied, possessed and utilized such territories, sharing common bonds of language, customs, traditions, and other distinctive cultural traits, or who have, through resistance to political, social and cultural inroads of colonization, non-indigenous religions and cultures, became historically differentiated from the majority of Filipinos.

Rights of Indigenous Peoples CRUZ v. SECRETARY of DENR (GR. 135385, 06 Dec 2000) FACTS: The constitutionality of RA 8371 (Indigenous Peoples Reform Act) was quesrioned. The SC en banc voted 7-7, hence, since the presumption is for constitutionality, such presumption was not overthrown, and the law was declared unconstitutional. Each justice wrote a separate opinion, and all opinions form part of the decision.

NOTE: There is really no difference between the 2 terms, except:

SALIENT POINTS

NOTE: The terms are always used in the plural form

1.

ICCs – the term used in the Constitution IPs – the term used in the international community and the UN

Nature of RA 8371(Separate Opinion of J. Puno) 3. RA 8371: (1) Recognizes the existence of the indigenous cultural communities (ICCs) or indigenous peoples (IPs) as a distinct sector in the Philippine society (2) Grants them the ownership and possession of their ancestral domains and ancestral lands, and defines the extent of these lands and domains, (3) Gives the indigenous concept of ownership under customary law which traces its origin to native title.

2.

Definition and Distinction ICCs/IPs (Separate Opinion of J. Kapunan) Sec. 3, RA 8371 – IPs/ICCs ―refer to a group of people or homogenous societies identified by self-ascription and ascription of others, who have


Ancestral Domain and Ancestral Lands, Definition and Nature (Separate Opinion of J. Puno) Nature: These are private property of indigenous peoples – it does not constitute part of the land of the public domain Definitions: (1) Ancestral Domain – Sec. 3(a), IPRA Ancestral Domain all areas belonging to ICCs/ IPs held under a claim of ownership, occupied or possessed by ICCs/IPs by themselves or through their ancestors, communally or individually since time immemorial, continuously until the present, except when interrupted by war, force majeure or displacement by

force, deceit, stealth or as a consequence of government projects or any other voluntary dealings with government and/or private individuals or corporations

(2) By Torrens Title under the Public Land Act – over Ancestral Lands only. 5.

It comprise lands, inland waters, coastal areas, and natural resources therein, including ancestral lands, forests, pasture, residential, agricultural and other lands whether alienable or not, hunting grounds, burial grounds, worship areas, bodies of water, mineral and other natural resources.

This refers to the ICCs/IPs pre-conquered rights to lands and domains held under a claim of private ownership as far back as memory reaches. Theses lands are deemed NEVER to have been public lands and are presumed to have been held privately since before the Spanish Conquest. This right of private ownership is peculiarly granted to ICCs/IPs over their Ancestral Lands and Domains.

(2) Ancestral Land - Sec. 3(b), IPRA These are lands held by the ICCs/IPs under the same conditions as ancestral domains except that these are limited to lands and that these land are not merely occupied and possessed but are also utilized by them under claims of individual or traditional group ownership. Thus, Ancestral Domain is a broader concept – it includes Ancestral Lands

Native Title, Concept (Separate Opinion of J. Puno)

Formal recognition of this right is embodies in a Certificate of Ancestral Domain Title (CADT) A CADT is just like a Torrens Title – it is evidence of private ownership of land by native title. 6.

Ownership by Acquisitive Prescription v. Ownership by Native Title (Separate Opinion of J. Kapunan) Ownership by Acquisitive Prescription

4.

Acquisition by ICCs/IPs of their Rights to their Ancestral Domains and Lands (Separate Opinion of J. Puno) 2 ways: (1) By Native Title – over both Ancestral Domain and Ancestral Lands

Involves a conversion of the property‘s character from alienable public l and to private land Thus, there is a transfer for title from the State to a private person Meaning, the land is originally public land, which is converted to private Note: This requires that the land is alienable


In Cariño v. Insular Government, the SC has held that when as far back as testimony or memory goes, the land has been held by individuals under a claim of private ownership, it will be presumed to have been held in the same way from before the Spanish conquest, and never to have been public land.

Public Land – Art. XII, sec. 3 – ―Lands of the public domain are classified into agricultural, forest or timber, mineral lands, and national parks‖ Of these, only agricultural lands are alienable

Native title is an exception to jura regalia.

Requirement for Acquisitive Prescription – the private individual must have possessed the land open, continuously, exclusively, adversely, and notoriously, in the concept of an owner, for either of the following periods:

Art. XII, Sec 2. – ―All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forest or timber, wildlife, flora and fauna and other natural resources are owned by the State‖

(1) 30 years – bad faith (2) 10 years – good faith

This is the recognition of the Doctrine of Jura Regalia Ownership by Native Title ELECTION LAW Here, the land has been held by its possessor and his predecessor-ininterest in the concept of an owner since time immemorial Thus, the land is not acquired from the State – there was no transfer from the State The land is private in character as far back as memory reaches. 7.

Jura Regalia – requires that private title to land must be traced to some grant – express or implied – from the Spanish Crown or its successors – the American Colonial Government and after, the Philippine Government.

Q:

Does jura regalia negate native title?

A:

NO!

Significant Laws BP 881 – Omnibus Election Code RA 6646 – Electoral Reform Law of 1987 RA 7166 RA9006 – Fair Election Act RA 9189 – Absentee Voter‘s Act of 2003

Election Process divided into 3 stages: (1) Pre-election (2) During election (3) Post Election

PRE-ELECTION STAGE Registration of Voters Q:

Who may register?

A:

Only those who are qualified.

VOTER’S QUALIFICATIONS Political Law Review Notes (Atty. Edwin Sandoval) Prepared by: Atty Joan P. Gamboa

Art. V, Sec. 1 – ―Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who are at least eighteen years of age and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months preceding the election. No literacy, property or other substantive requirement shall be imposed on the exercise of suffrage.‖

executed by these Filipinos abroad that they will return and resume residence in the Philippines within 3 years. -

This is an exception to residence qualification For purposes of election law, one‘s domicile is that to which the Constitution refers when it speaks of residence

Section 8, BP 881 (1) citizens of the Philippines (2) not otherwise disqualified by law (3) at least 18 years of age (4) resident of the Philippines for at least one year and of the place wherein they propose to vote for at least six months immediately preceding the elections

-

Election Period: 90 days before the day of the election and shall end 30 days thereafter

-

Pre-Proclamation Sec. 241,242,243 OEC Sec. 15, RA 7166

-Registration Art. V. Sec 1

-

Effects of Disqualification Sec. 6, RA 7166 Guerrero v. COMELEC Loong v. COMELEC Salcedo v. COMELEC Tecson v. COMELEC

-Political Parties Art. IX-C, Sec 2(5)

-Filing of Certificate of Candidacy Sec. 79(A) OEC Sec. 73 OEC Monsale v. Nico Sec. 66 OEC PNOC-EDC v. NLRC Sec. 26 OEC COMELEC Resolution

-Campaign Period -Substitution of Candidates Sec. 77 OEC Sec. 12 RA 9006 Miranda v. Abaya -Disqualification Cases Sec. 68 OEC Sec. 69 OEC (5 days) Sec. 78 OEC (25 days)

Q:

Is there an exception to the residence qualification?

A:

Yes. RA 9189 (Absentee Voter‘s Act of 2003)

MACALINTAL v. COMELEC HELD: Under the ABSENTEE VOTER‘S ACT OF 2003, overseas absentee voters are allowed to vote for President, Vice-President, Senators and PartyList representatives. This is a clear intent to enfranchise Filipinos abroad, to allow them to have a voice in the selection of our leaders. This refers to IMMIGRANTS and those who acquire the right to reside therein. It does not pertain to NATURALIZED CITIZENS. However, there must be an affidavit Political Law Review Notes (Atty. Edwin Sandoval) Prepared by: Atty Joan P. Gamboa

Failure of Elections Sec. 6 OEC Sec. 4 RA 7166 Mitmug v. COMELEC

Sec. 4 (70 Art. VII Sec. 17 Art. VII Sec. 2(2) Art. IX-C Election Protest Counter protest Kho v. COMELEC Quo Warranto -

Effect of Death De Castro COMELEC Santiago v. FVR

v.

Art. V, Sec. 2 – ―The Congress shall provide a system for securing the secrecy and sanctity of the ballot as well as a system for absentee voting by qualified Filipinos abroad xxx‖ Provides for: (1) A system for securing the security and sanctity of ballots (2) A system for absentee voting EXIT POLLS The reason for securing the sanctity/secrecy of ballots is to avoid vote buying through voter identification. What is forbidden is the association of voters with their respective votes for the purpose of assuring that votes have been cast in accordance with the instruction of a third party. Exit polls conducted by ABS-CBN does not violate the sanctity of ballots. The contents of the ballots are not exposed. The revelation is not

compulsory but voluntary. Also, voters are not required to reveal their names. (ABS-CBN v. COMELEC) Q:

Even if you possess all qualifications and none of the disqualifications. If you fail to register you will not be able/ allowed to vote. Is registration then an additional qualification of a voter?

A:

No. It is merely a condition precedent for the exercise of the right of suffrage. Registration laws are police power measures designed to ensure that only those who possess qualifications and none of the disqualifications can be allowed to exercise the right of suffrage. They are for the purpose of conducting an honest and free election.

REGISTRATION OF POLITICAL PARTIES Q:

Who has the power to register political parties?

A:

COMELEC in accordance with Article IX-C, Sec. 2(5). It is the registration with COMELEC that vests personality to an organization as a political party.

Art. IX-C, Sec. 2(5) – ORGANIZATIONS THAT MAY NOT BE REGISTERED AS POLITICAL PARTIES (1) religious denominations and sects (2) those which seek to achieve their goals through violence or unlawful means (3) those which refuse to uphold the Constitution (4) those which are supported by any foreign government Art. IX-C, Sec. 2(5) Par. 2 – ― Financial contributions from foreign governments and their agencies to political parties, organization, coalitions, or candidates related to elections constitute interference in national affairs, and when accepted, shall be an additional ground for the cancellation of their registration with the Commission, in addition to their penalties that may be prescribed by law.‖ This constitute an election offense in accordance to Section 81, Omnibus election Code – ―Intervention of foreigners- it shall be unlawful for any foreigners, whether judicial (juridical) or natural person, to aid any candidate or political party, directly or indirectly, or to take part in or influence in any manner any election, or to contribute or make any expenditure in connection with any election campaign or partisan political activity.‖


MULTI-PARTY SYSTEM We are supposed to have a multi-party system as provided under Art. IX-C, Sec. 6 – ―A free and open party system shall be allowed to evolve according to the free choice of the people, subject to the provisions of this Article.‖ ELECTION PERIOD Q:

What is the election period?

A:

Art. IX-C, Sec. 9 provides that ―unless otherwise fixed by the Commission in special cases, the election period shall commence 90 days before the day of election and shall end 30 days thereafter.‖

PROHIBITED ACTIVITIES DURING ELECTION PERIOD (1) construction of public highways/ public works (2) public employment, appointment CAMPAIGN PERIOD - duration usually shorter - depends on the office aspired for -usually starts after the last day of filing of the certificate of candidacy and ends one day before elections. ELECTION CAMPAIGN ―Election Campaign‖ and ―partisan political activity‖ are the same. They are used interchangeably. Under Sec. 79 (b) Omnibus Election Code, it refers to ―an act designed to promote the election or defeat of a particular candidate or candidates to a public office xxx‖ Section 80, Omnibus Election Code – ― ELECTION CAMPAIGN OR PARTISAN POLITICAL ACTIVITY OUTSIDE CAMPAIGN PERIOD – It shall be unlawful for any person, whether or not a voter or candidate, or for any party, or association of persons, to engage in an election campaign or partisan political activity except during the campaign period: PROVIDED, that political parties may hold political conventions or meetings to nominate their official candidates within 30 days before the commencement of the campaign period and 45 days for Presidential and Vice-Presidential election.‖

GENERAL RULE: It is unlawful for any person to engage in an election campaign except during the campaign period. Otherwise, it will be an election offense.

Sec. 73, 1st sentence, OEC – ―No person shall be eligible for any elective public office unless he files a sworn certificate of candidacy within the period fixed herein xxx‖

EXCEPTION: Political parties may hold political conventions to nominate their candidates within 30 days before the commencement of the campaign period within 45 days for President and Vice-President elections.

The certificate of candidacy must be filed within the period prescribed by law. Late filing not allowed

CANDIDATE Sec. 79(a) Omnibus Election Code – ― the term ―CANDIDATE‖ refers to any person aspiring for or seeking an elective public office, who has filed a certificate of candidacy by himself of through an accredited political party, aggroupment, or coalition of parties.‖

Sec. 73, 3 sentence, OEC – ―No person shall be eligible for more than one office to be filled in the same election, and if he files his certificate of candidacy for more than one office, he shall not be eligible for any of them xxx‖

Q: Does Pichay‘s as ―itanim sa senado‖ even before the elections and campaign period violate Sec. 80 of the OEC? A: No. At that time, Pichay has not yet filed his certificate of candidacy. He is not yet a candidate within the meaning of the law. Therefore, it cannot be considered as an election campaign. FILING OF CERTIFICATE OF CANDIDACY Sec.76. Omnibus Election Code – ―Ministerial duty of receiving and acknowledging receipt – The Commission, provincial election supervisor, election registrar or officer designated by the Commission or the board of election inspectors under the succeeding section shall have the ministerial duty to receive and acknowledge receipt of the certificate of candidacy.‖ It is a ministerial duty on the part of the election official to receive and acknowledge receipt of the certificate of candidacy. The question of whether or not a person is disqualified belongs to another tribunal in an appropriate disqualification case.

rd

The certificate of candidacy must be filed for only one office in an election If a candidate files his certificate of candidacy for more than one office, he shall not be eligible for any of them. WITHDRAWAL Q:

Can you withdraw the certificate of candidacy?

A: Yes. A person who has filed a certificate of candidacy may, prior to the election, withdraw the same by submitting to the office concerned a nd written declaration under oath. (Sec. 73, 2 sentence, OEC) MONSALE v. NICO On the last day of filing of certificate of candidacy. March 31, Jose Monsale withdrew his certificate of candidacy. April 1, campaign started. On April 2, he wanted to run again so he filed a written declaration withdrawing his withdrawal. HELD: The withdrawal of the withdrawal of the certificate of candidacy made after the last day of filing is considered as filing of a new certificate of candidacy. Hence, it was not allowed since it was filed out of time.

Q: Ka Roger went to Laguna to file COC. The election officer refused because he seeks to achieve goals through violence. Valid? EFFECT OF FILING OF A CERTIFICATE OF CANDIDACY A: No. It is the ministerial duty on the part of the election official to receive and acknowledge receipt of the certificate of candidacy. The question of whether or not a person is disqualified belongs to another tribunal in an appropriate disqualification case. PERIOD


Appointive Officials Sec. 66. OEC – ―Candidates holding appointive office or position – Any person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in the government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy.‖

Q: X, a municipal treasurer filed a certificate of candidacy for governor. What is the effect? A: He is considered ipso facto resigned.

Q:

What are the GROUNDS for substitution of candidates?

A:

Sec.77, OEC enumerates 3Grounds: (1) Death (2) Disqualification (3) Withdrawal of another

Q: Is there a need to resign? A: NO! The appointive official is ipso facto resigned. Ipso facto means no need to resign.

Q: A:

What if after filing, the appointive official withdrew his certificate of candidacy. Can he be reinstated to his former position? No! What matters is the moment of filing.

PNOC-EDC v. NLRC HELD: The OEC does not distinguish between employees of GOCCs which have original charters and those that do not have one. Elective Officials Sec. 67, OEC – ―Candidates holding elective office xxx‖ has already been repealed by the Repealing Clause of the Fair Election Act under Sec. 14, RA 9006 – ―Repealing Clause. Sec 67 and 85 0f the EOC xxx are hereby repealed.‖ Q:

What governs now?

A: Secton 38, COMELEC Resolution 7767 (30 Nov 2006), Implementing Rules of the Fair Election Act – ―Effect of Filing Certificate of Candidacy of Elective Officials – Any elective official, whether national or local, who has filed a certificate of candidacy for the same or other office shall not be considered resigned from his office.‖

Section 77. OEC – ―Candidates in case of death, disqualification or withdrawal of another. - If after the last day for the filing of certificates of candidacy, an official candidate of a registered or accredited political party dies, withdraws or is disqualified for any cause, only a person belonging to, and certified by, the same political party may file a certificate of candidacy to replace the candidate who died, withdrew or was disqualified. The substitute candidate nominated by the political party concerned may file his certificate of candidacy for the office affected in accordance with the preceding sections not later than mid-day of the day of the election. If the death, withdrawal or disqualification should occur between the day before the election and mid-day of election day, said certificate may be filed with any board of election inspectors in the political subdivision where he is a candidate, or, in the case of candidates to be voted for by the entire electorate of the country, with the Commission.‖ Q: A:

When may substitution take place? Substitution can only take place on the first day of campaign period until NOT later than mid-day of election day.

Q:

Martin de Guzman, a candidate for mayor, died 3 days before the election. Can his wife substitute him? It depends. Under Sec. 77, only a candidate belonging to the same political party may be substituted. By implication, an independent or those who do not belong to any political party may not be validly substituted because nobody will qualify.

A: FARIÑAS v. EXECUTIVE SECRETARY HELD: The provision of the Fair Election Act (RA 9006) to the extent that it repealed Sec.67 of OEC is constitutional.

Q: Vice-governor filed a certificate of candidacy for governor. What is the effect? A: He is NOT ipso facto considered resigned. Sec. 67 OEC has been repealed by the FAIR ELECTION ACT (RA 9006). Any elective official, national or local shall not be considered as resigned from their elective office. SUBSTITUTION OF CANDIDATES Political Law Review Notes (Atty. Edwin Sandoval) Prepared by: Atty Joan P. Gamboa

Q: A:

What are the requirements for substitution? (1) nominated by the political party concerned (2) certified by the political party concerned

Q: Martin de Guzman died while campaigning. His son substituted him. Voters on the day of the election wrote Martin de Guzman instead of casting the same in the name of his son, Joel de Guzman. Should the votes be counted in favor of Joel?

A:

Yes! As a general rule, under RA 9006, Sec. 12, the same will be considered as stray votes but will not invalidate the whole ballot. Exception is when the substitute carries the same family name, the said provision will not apply.

Section 12. RA 9006 – ―Substitution of Candidates. In case of valid substitutions after the official ballots have been printed, the votes cast for the substituted candidates shall be considered as stray votes but shall not invalidate the whole ballot. For this purpose, the official ballots shall provide spaces where the voters may write the name of the substitute candidates if they are voting for the latter: Provided, however, That if the substitute candidate of the same family name, this provision shall not apply.‖ MIRANDA v. ABAYA FACTS: In the 1998 election, mayor Miranda of Isabela, already served 8 consecutive terms, yet he still filed a certificate of candidacy. As a result, Abaya filed a disqualification case. COMELEC then disqualified Miranda and cancelled his certificate of candidacy. The son of Miranda, Joel, upon nomination of their political party, filed a certificate as a substitute. Joel Miranda won. HELD: There was no valid substitution. COMELEC did not only disqualify Miranda but also cancelled his certificate of candidacy. Therefore, he cannot be validly substituted. It is as if he was not a candidate. Even on the most basic and fundamental principles, it is already understood that the concept of a substitute presupposes the existence of the person to be substituted, for how can a person take the place of somebody who does not exist or who never was. The court has no other choice but to rule that in all instances enumerated in Sec.77 of the OEC, the existence of a valid certificate of candidacy seasonably filed is a requisite sine quo non. All told, a disqualified candidate may only be substituted if he had a valid certificate of candidacy in the first place because if the disqualified candidate did not have a valid and seasonably filed COC, he is and was not a candidate at all. If a person was not a candidate, he cannot be substituted under Sec. 77 of the OEC. The purpose of the law in requiring the filing of the COC and in fixing the time limit therefore are: (a) To enable the voters to know at least 60 days before the regular election, the candidates among whom they are to make the choice and (b) To avoid confusion and inconvenience in the tabulation of the votes cast


Q:

Considering that Joel possesses all the qualifications, can he be considered as a candidate in his own right? A: No. The certificate of candidacy was filed long after the last day of filing (Sec. 73, OEC) The existence of a certificate of candidacy is a condition sine qua non under Section 77. Q: Since there was no valid substitution, should the candidate who obtained the second highest vote be proclaimed? A: No. Under the doctrine on the rejection of second placer, the second placer is just like that – second placer. He was not the choice of the electorate. The wreath (crown) of victory cannot be transferred to the repudiated loser. (Cayat v. COMELEC citing Butch Aquino v. COMELEC and Sunga v. COMELEC) Q: A:

Who will now assume the position of mayorship? Following the rule on succession, it is the Vice-Mayor.

LABO DOCTRINE The thrust is what to do with the votes cast for a disqualified candidate. Should they be considered as stray votes? SC: No! That would disenfranchise the majority. The votes cast for the disqualified are not stray votes they are valid votes only that the candidate was later on found to be disqualified. It would have been different if his disqualification was so apparent, so notorious, so much so that the people, notwithstanding that they knew him to be disqualified, they still voted for him in which case the votes cast for him shall be considered as protest votes. Protest votes are considered as stray votes. But not in this case, where the people of Baguio voted for Labo only to find out that he is disqualified. You cannot apply Labo Doctrine in Party-List because of Section 10, RA 7941 CAYAT v. COMELEC FACTS: Rev. Fr. Nardo Cayat ran for Mayor. Palileng, his opponent, found out that Cayat, before the elections, was previously convicted of acts of lasciviousness although he was granted probation. His candidacy was then questioned in a disqualification case invoking Section 40 pf the LGC. (Disqualification – The following persons are disqualified from running for

any elective local position: (a) those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within (2) years after serving sentence ; xxx) . COMELEC disqualified Cayat on the ground of conviction of an offense involving moral turpitude. However, Cayat alleged that he did not receive a copy of the judgment. That decision disqualifying Cayat became final even 2 weeks before the election. Still, Cayat won in the election. Palileng claimed that since Cayat is disqualified, he should be the one proclaimed. HELD: The Court agreed and did not apply the doctrine of the rejection of the second placer. The one who obtained the second highest number of votes was the one actually proclaimed. This is very peculiar because here, there is only one candidate. Since Cayat was disqualified, it is as if he is not a candidate. Hence, there is no second placer here. The doctrine of the rejection of second placer is not applicable because of Sec.6 of RA 6646 Also, under Section 6, RA 6646 (Electoral Reform Law of 1987 – Effect of st disqualification) which contemplates of 2 situations, it is the 1 sentence which applies to Cayat. He was declared by final judgment, to be disqualified because the decision attained finality even 2 weeks before the election. He shall therefore not be voted for and the votes cast for him shall not be counted. The second sentence contemplates that there was a disqualification case filed before the COMELEC but for whatever reason, COMELEC was not able to render a decision before the election and such candidate won in the election, in which case, the court or Commission shall continue with the trial and hearing of the election, inquiry or protest. DISQUALIFICATIONS/REMEDIES BEFORE ELECTION Any disqualification filed before the election, whether pursuant to Sections 68, 69 and 78 of OEC, the jurisdiction is with the COMELEC Section 68, OEC – “Disqualifications. - Any candidate who, in an action or protest in which he is a party is declared by final decision of a competent court guilty of, or found by the Commission of having: (a) given money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions; (b) committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an amount in excess of that allowed by this Code; (1)


(d) solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, subparagraph 6, shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office.‖ Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless said person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws. Violation of election laws is without prejudice to the filing of criminal action. (2) Section 69, OEC – “Nuisance candidates. - The Commission may motu proprio or upon a verified petition of an interested party, refuse to give due course to or cancel a certificate of candidacy if the candidate is a nuisance candidate.‖ Q: Who is NUISANCE CANDIDATE? A: A nuisance candidate is a candidate who has no bona fide intention to run, his purpose is merely to put the election process in mockery or disrepute or to cause confusion among the voters by the similarity of the names of the registered candidates or by other circumstances or acts intended to prevent a faithful determination of the true will of the electorate. (Bautista v. COMELEC) Period to file a petition Within five (5) days from the last day of filing of the certificate of candidacy assuming that COMELEC did not act motu proprio. (3) Section 78, OEC – “Petition to deny due course to or cancel a certificate of candidacy. - A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by the person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. Xxx‖ Period to file a petition Within twenty-five (25) days from the time the candidate filed his certificate of candidacy/ from the date the candidate alleged to have made misrepresentation in the COC filed. LOONG v. COMELEC

FACTS: Loong was a candidate for Vice-Governor in ARMM. There was an election held but there was yet no proclamation. Eventually, it was found out that Loong was still underage. Can the petition to disqualify Loong on the ground of material misrepresentation prosper? HELD: No. The petition was filed out of time. The disqualification case under Sec. 78 should be filed within 25 days from the date the candidate who made the misrepresentation filed his certificate of candidacy, not on the date of discovery. The 25-day period is mandatory. Q:

What then is the remedy?

A:

There is a GAP in the law, which must be addressed by Congress.

SALCEDO v. COMLELEC HELD: Material misrepresentation refers to the QUALIFICATIONS of the elective official for the elective office and NOT to any innocuous mistake. There must be a deliberate intent to deceive the people to one‘s qualification for public office. TECSON v. COMELEC FACTS: A disqualification case was filed against FPJ in accordance with Sec. 78 on the ground of material representation as to the citizenship. HELD: There was no material misrepresentation. The misrepresentation must not only be material. There must also be a deliberate intent to mislead or deceive as to one‘s qualification to public office.

Fariñas was elected, proclaimed and took his oath. The COMELEC ousted itself of jurisdiction. SC upheld COMELEC. It was recognition of the power of the HRET and the constitutional boundaries. Election – 7am – 3pm, then counting, members of Board of Canvassers Return usually 7 copies: (1)COMELEC (2)Treasurer (3)Municipal Judge The idea is that in case of lost return, they can refer to the other copies. Number of votes written in words and number

POST ELECTION PRE-PROCLAMATION CASE Q: After election, but before proclamation, what is the remedy? A: Pre-proclamation case. But this presupposes that there was election Q: A:

After proclamation, what is the remedy? (1) Election Protest (2) Quo Warranto

In pre-proclamation cases, the governing provisions are Section 241, 242, 243 OEC.

EFFECT OF DISQUALIFICATION CASES Section 6. RA 6646 – ―Effect of Disqualification Case. - Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong.‖ ROMUALDEZ-MARCOS v. COMELEC There was yet no proclamation, hence not yet a member of the HOR. COMELEC still has jurisdictom GUERRERO v. COMELEC Political Law Review Notes (Atty. Edwin Sandoval) Prepared by: Atty Joan P. Gamboa

Section 241, OEC – “Definition. - A pre-proclamation controversy refers to any question pertaining to or affecting the proceedings of the board of canvassers which may be raised by any candidate or by any registered political party or coalition of political parties before the board or directly with the Commission, or any matter raised under Sections 233, 234, 235 and 236 in relation to the preparation, transmission, receipt, custody and appreciation of the election returns.‖ Section 242, OEC – ―Commission's exclusive jurisdiction of all preproclamation controversies. - The Commission shall have exclusive jurisdiction of all pre-proclamation controversies. It may motu proprio or upon written petition, and after due notice and hearing, order the partial or total suspension of the proclamation of any candidate-elect or annual partially or totally any proclamation, if one has been made, as the evidence shall warrant in accordance with the succeeding sections.‖

Section 243,OEC – “Issues that may be raised in pre-proclamation controversy. - The following shall be proper issues that may be raised in a pre-proclamation controversy: (a) Illegal composition or proceedings of the board of canvassers; (b) The canvassed election returns are incomplete, contain material defects, appear to be tampered with or falsified, or contain discrepancies in the same returns or in other authentic copies thereof as mentioned in Sections 233, 234, 235 and 236 of this Code; (c) The election returns were prepared under duress, threats, coercion, or intimidation, or they are obviously manufactured or not authentic; and (d) When substitute or fraudulent returns in controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate or candidates. Section 243, OEC refers to issues that may ne raised in a pre-proclamation controversy. There are four (4) grounds, which can be summarized into two (2): (1) illegality in the composition of proceedings of the BOC – (a) (2) illegality in the preparation, transmission, receipt, custody, or appreciation of election returns – (b, c,d)

As watcher, object to the inclusion of the canvass of the particular return on the ground that the election returns are obviously manufactured on the basis of the doctrine of statistical improbability. If still included, it can result to a pre-proclamation controversy. Pre-proclamation cases is NOT allowed in barangay elections. Section 15, RA 7166 – “Pre-proclamation Cases Not Allowed in Elections for President Vice-President, Senator, and Member of the House of Representatives. - For purposes of the elections for President, VicePresident, Senator and Member of the House of Representatives, no preproclamation cases shall be allowed on matters relating to the preparation, transmission, receipt, custody and appreciation of the election returns or the certificates of canvass, as the case may be. However, this does not preclude the authority of the appropriate canvassing body motu propio or upon written complaint of an interested person to correct manifest errors in the certificate of canvass or election returns before it. ― Questions affecting the composition or proceedings of the board of canvassers may be initiated in the board or directly with the Commission in accordance with Section 19 hereof. Any objection on the election returns before the city or municipal board of canvassers, or on the municipal certificates of canvass before the provincial board of canvassers or district boards of canvassers in Metro Manila Area, shall be specifically noticed in the minutes of their respective proceedings.

Once a candidate has been proclaimed, the pending pre-proclamation case should be dismissed. After all, the issues pending in the pre-proclamation case will also be raised in the subsequent Election Protest or Quo Warranto case filed.

For purposes of election of – (1) President (2) Vice-President (3) Senators (4) House of Representatives There can be no pre-proclamation case on matters relating to transmission, custody of election returns; the only issue that can be raised – illegality of the composition or proceeding of the Board of Canvassers

DOCTRINE OF STATISTICAL IMPROBABILITY – LAGUMBAY DONCTRINE Where there exist similarities in the tallies in favor of candidates belonging to one party, and results in the blanking out of the opposing candidates, the election returns are obviously manufactured on the basis of the doctrine of statistical improbability.

Therefore, there can only be a pre-proclamation case on the following: (1) Municipal officials (2) City officials (3) Provincial officials (4) Autonomous officials

Eg. Ballot box switching not proper for pre-proclamation case; does not fall under any of the instances under Art. 243 of OEC.

FAILURE OF ELECTION Political Law Review Notes (Atty. Edwin Sandoval) Prepared by: Atty Joan P. Gamboa

Section 6, OEC Failure of election. - If, on account of force majeure, violence, terrorism, fraud, or other analogous causes the election in any polling place has not been held on the date fixed, or had been suspended before the hour fixed by law for the closing of the voting, or after the voting and during the preparation and the transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect, and in any of such cases the failure or suspension of election would affect the result of the election, the Commission shall, on the basis of a verified petition by any interested party and after due notice and hearing, call for the holding or continuation of the election not held, suspended or which resulted in a failure to elect on a date reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of the cause of such postponement or suspension of the election or failure to elect. GROUNDS FOR FAILURE OF ELECTION (1) Force majeure (2) Violence (3) Terrorism (4) Fraud (5) Analogous Causes SITUATIONS (1) No election The election in any polling place has not been held on the date fixed on account of FVTFA (2) Election is suspended The election in any polling place has been suspended before the hour fixed by law for the closing of the voting on account of FVTFA (3) There is a failure to elect After the voting and during the preparation and transmission of the election returns or to the custody or canvass thereof, such election results in a failure to elect on account of FVTFA; nobody emerged as winner

A: COMELEC EN BANC. The majority of the Commission may grant the petition and schedule special election in areas affected. (Section 4, RA 7166 – ―Postponement, Failure of election and special Elections – The postponement, declaration of failure of election and the calling of special elections as provided in Sec. 5, 6, and 7 of the OEC shall be decided by the Commission sitting en banc by a majority vote of its Members. The causes for the declaration of a failure of election may occur before or after the casting of votes or n the day of the election xxx‖) BANAGA v. COMELEC Failure of election is the same with petition to annul election returns General Rule: ―xxx All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commision en banc. (Art IX-C, Section 3) Exception: A petition to declare a failure of election shall be heard by the COMELEC en banc.] PRE-PROCLAMATION v. FAILURE OF ELECTION In pre-proclamation, there is actually an election that took place In failure of election, there was no election at all or it was suspended or there was a failure to elect. MITMUG v. COMELEC There were 3 candidates for mayor. The total registered voters is 10, 000. Only 3,000 voted. There was a low turn out of voters. A petition was filed to declare a failure of election HELD: The petition cannot be granted. There was an election that took place. The law does not require the majority of voters to cast their votes. There can onlybe a failure of election if the will of the people is defiled and cannot be determined. PROCLAMATION

Q:

A:

Q:

What are the two (2) conditions that must concur before the COMELEC can act on a verified petition seeking to declare a failure of election? (1) no voting took place in the precinct (2) on the date fixed by law or even if there was voting, the election resulted in a failure to elect. Where to file a petition to declare a failure of election?


Q: A:

Who proclaims the winner? (1) Board of Canvassers (2) President, Vice-President Elections: Congress acting as Board of Canvassers (3) Senators: COMELEC (4) Congressman (a) Lone Congressional district – Provincial BOC (b) Several districts – District BOC

It is the ministerial duty of the BOC to proclaim the winning candidate. It has no discretion whether to proclaim or not. After the last official act, which is the proclamation, the BOC becomes functus officio and may not validly reconvene motu proprio. However, when the COMELEC ordered the reconveyance of the BOC, it may. POST-ELECTION REMEDIES –After election ELECTION PROTEST v. QUO WARRANTO ELECTION PROTEST QUO WARRANTO - who really won in the election?, - whether the winning candidate is determination of real choice of qualified, eligibility or lack of electorate qualifications of the candidate - only the candidate running for the same can file - if the protestant wins, he shall be proclaimed and shall replace the previously proclaimed winner. - eg. coercion, terrorism, ballot box switching, vote buying.

- If the winning candidate is disqualified, he shall be removed and automatic succession shall apply unless what is removed is not a local elective official, in which case, the position shall be declared vacant, until there is a special election to fill the vacancy. -eg. Citizenship, residence, disloyalty to Republic of the Philippines

DUMAYAS v. COMELEC Election Protest is a contest between the defeated and winning candidates on the ground of frauds or irregularities in the casting and counting of the ballots or in the preparation of returns. It resolves the question of who actually obtained the plurality of the legal votes and therefore is entitled to hold the office. Quo warranto raises in issue the disloyalty or ineligibility of the winning candidate. It is a proceeding to unseat the respondent from office but not necessarily to install the petitioner in his place. JURISDICTION - SC en banc , acting as Presidential Electoral Tribunal (Art. VII, Sec. 4[7]) ―sole judge‖

(1) President/ VP

(2)

Members

of

the


- EP 30 days from proclamation QW 10 days from proclamation

-EP or QW

Congress -Senators -Congressmen

(3) Governor/ Governor

Vice-

-Senate Electoral Tribunal -HR Electoral Tribunal (Art. VI, Sec. 17) No appeal Or Rule 65 (Special Civil Action on Certiorari) -COMELEC (Original) (Art. IX-C, Sec. 2[2]) -SC (Appellate)

(4) Regional/ Provincial/City

-COMELEC (Original) -SC (Appellate)

(5) Elective Municipal Official

-RTC (Original) (―trial courts of general jurisdiction‖) -COMELEC (Appellate) (Art. IX-C, Sec. 2[2])

(6) Elective Barangay Official

-MTC (Original) (―trial courts of limited jurisdiction‖) -COMELEC (Appellate)

- 15 days after proclamation - 10 days after proclamation

-10 days proclamation

from

REYES v. RTC OF ORIENTAL MINDORO From the decision of the COMELEC, file first a motion for reconsideration. It is only the decision of COMELEC EN BANC that is reviewable by the SC. TECSON v. COMELEC Before the election, a petition was filed on the ground of material misrepresentation. COMELEC dismissed the petition. TECSON et. al. argued tha the jurisdiction with the SC. HELD: Contest refers to ―post-election‖ scenario and not pre-election scenario. It shall consist of either an election protest or quo warranto which are two (2) distinct remedies but with one objective, to unseat winning candidate. SC has jurisdiction over election contests of President/VicePresident and NOT candidates. It does NOT include a petition qualifying a candidate for President/Vice-President. Sc is the sole judge for

President/Vice-President and NOT over candidates for President/VicePresident. Hence, the action was dismissed for lack of jurisdiction and prematurity.

If a counter protest was belatedly filed, but was erroneously admitted, the remedy is to file a motion to expunge the counter protest from the records. If not expunged from the record, file a petition for certiorari under Rule 65.

―election returns‖ – refers to election protest ―qualification‖ – refers to quo warranto

ELECTION OFFENSE Q: Who has jurisdiction over election offenses? A: RTC, except in cases where there is failure to register to vote which shall be under the MTC.

GALIDO v. COMELEC Notwithstanding the finality of COMELEC‘s decision, the parties are NOT precluded from filing a petition for certiorari with the SC. FRIVALD0 v. COMELEC ; LOONG v. COMELEC If the ground relied upon is lack of citizenship or disloyalty to the Republic, the period must be extended. EFFECT OF DEATH OF A PARTY Q: What is the effect of death of a party in an election protest? Should it warrant the dismissal of the protest? A: The death of the protestant neither constitutes a ground for the dismissal of the contest not ousts the trial court of its jurisdiction to decide the election contest. An election protest involves both the private interests of the rival candidates and the public interest in the final determination of the real choice of the electorate, and for this reason, an election contest necessarily survives the death of the protestant or the protestee. But while the right to public office is personal and exclusive to the public officer, an election protest ins not purely personal and exclusive to the protestant or to the protestee such that after the death of either would oust the court of all authority to continue the protest proceedings. An election contest, after all, involves not merely conflicting private aspirations but is imbued with paramount public interests. (DE CASTRO v. COMELEC) COUNTER-PROTEST – available to a winning candidate if his election is protested. A remedy available to a duly proclaimed winner in order to protect one‘s lead. Allege also the precinct where your opponent cheated. KHO v. COMELEC Counter protest must be filed within 5 days from receipt of the copy of the protest. The period is not only mandatory but also jurisdictional. It partakes the nature of a counterclaim. So that the court is ousted of jurisdiction to entertain a counter protest belatedly filed.


Section 268, OEC – “Jurisdiction of courts. - The regional trial court shall have the exclusive original jurisdiction to try and decide any criminal action or proceedings for violation of this Code, except those relating to the offense of failure to register or failure to vote which shall be under the jurisdiction of the metropolitan or municipal trial courts. From the decision of the courts, appeal will lie as in other criminal cases. Q: Who shall prosecute election offenses? A: COMELEC not the fiscal unless the latter is deputized by the COMELEC Q: A:

In case of public official, should COMELEC still prosecute? COMELEC can still prosecute. It is not the personality of the accused but the nature of the offense.

INCLUSION/EXCLUSION PROCEEDINGS - within the jurisdiction of MTC appealable to RTC -RTC decision is not appealable WHEN ELECTION PROTEST BECOMES MOOT Defensor Santiago filed an Election Protest. Subsequently, she ran for Senator and won. She abandoned her protest when she ran for an office different frim that of the President. RULES ON APPRECIATION OF BALLOTS (1) GENERAL RULE – After the elections, the liberal interpretation rule shall be applied. IN CASE OF DOUBT, the rule in favor of the vote being valid as to give effect to the will of the electorate shall be followed. (2) EQUITY OF INCUMBENT RULE – 2 or more candidates running for the same office, they bear the same first name, surname or both and the voter in his ballot wrote only either of the 2, the vote shall

be appreciated in favor of the incumbent. If neither of them is incumbent, the votes shall be considered stray votes. (3) IDEM SONANS RULE or SAME SOUNDS RULE – If the name of the candidate is misspelled by the voter, for as long as when it is pronounced, it sounds like the name of the candidate, the vote is counted in the latter‘s favor UNLESS it can be considered as marking, in which case the entire ballot is invalid.

2. Professor Goodnow it is that part of public law which fixes the organization of the government and determines the competence of the authorities who execute the law and indicates to the individual remedies for the violation of his rights. In both definitions, the focus is on the executive department acting in quasilegislative and quasi-judicial functions. THREE IMPORTANT DOCTRINES

(4) DESCRIPTIO PERSONAE – rule is the same in idem sonans rule. ADMINISTRATIVE LAW - Promulgated by Pres. Aquino when she still had legislative powers pursuant to Article XIII, Section 6 (The incumbent President shall continue to exercise legislative powers until the First Congress is convened). -took effect in 1989, only after 2 years. The Code is a general law and incorporates into a unified document the major structural, functional and procedural principles of governance and embodies changes in administrative structures and procedures designed to serve the people (Ople v. Torres).

(1) DOCTRINE OF QUALIFIED POLITICAL AGENCY The members of the cabinets are deemed alter egos of the President so that their decision and acts performed in the regular course of business are deemed acts or decisions of the President UNLESS reprobated by the President. (2) EXHAUSTION OF ADMINISTRATIVE REMEDY Whenever there is an available administrative remedy provided by law, no judicial recourse can be made until all such remedies have been availed of and exhausted. (3) DOCTRINE OF PRIMARY JURISDICTION OR PRIOR RESORT The courts cannot and will not resolve a controversy involving a question, which is within the jurisdiction of an administrative tribunal.

- The Code is divided into seven books: Book 1 : Sovereignty and General Administration Book 2: Distibution of Powers of the Three Branches of the Government Book 3: Office of the President Book 4: Executive Branch Book 5: Constitutional Commissions Book 6: National Government Budgeting Book 7: Administrative Procedure

ADMINISTRATIVE AGENCIES · Generally, the function is EXECUTIVE · It implements or enforces Ex: COMELEC - main function is to enforce the laws relative to the conduct of election. - This is an executive function. · But the law may vest the agency quasi-judicial and quasi-legislative powers.

- includes the Civil Service Law. Two important definitions of Administrative Law 1. Dean Roscoe Pound it is that branch of modern law under the executive department of the government, acting in quasi-legislative or quasi-judicial capacity, interferes with the conduct of individual for the purpose of promoting the well being of the community.


GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES refers to the corporate governmental entity through which the functions of the government are exercised throughout the Philippines including various arms through which political authority is made effective in the Philippines, whether pertaining to the autonomous regions, the provincial, city, municipal or barangay subdivisions or other forms of local government.

2 COMPONENTS: (1) Corporate governmental entity, through which the functions of government are exercised throughout the Philippines. (2) Various arms through which political authority is made effective in the Philippines. ·

Thus, LOCAL GOVERNMENTS are included in the definition of GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES

proprietary. If it is in the interest of health, safety or the advancement of public good and welfare affecting the public in general - the function is governmental. VARIOUS ADMINISTRATIVE AGENCIES AGENCY OF THE GOVERNMENT refers to any of the various units of the government, including a department, bureau, office, instrumentality, or government owned or controlled corporations, or a local government or district unit therein. (Section

(a) They are referred to as ―various arms through which political *LGU's are not under the control power of the President. It falls under the authority is made effective in the Philippines‖ (ADMINISTRATIVE general supervision of the President. CODE) DEPARTMENT ARTICLE VII, Section 17 ARTICLE X, Section 4 (b) They are referred to as ―territorial Control power of the President Power of General Supervision and political subdivisions of the ―The President shall have control of all ―The President of the Philippines shall exercise general Republic of the Philippines (Article X, executive departments, bureaus and offices. He supervision over local governments xxx Section 1, 1987 CONSTITUTION). shall ensure that the laws be faithfully ―The territorial and political executed.‖ subdivisions of the Republic of the CONTROL is the power of the superior to direct POWER OF GENEREAL SUPERVISION means to Philippines are the provinces, cities, the performance of a duty, restrain the generally oversee, see to it that the local governments municipalities and barangays. There commission of acts, review, revise, modify, and their officials perform their functions in accordance shall be autonomous regions in reverse or alter the decisions and even to with law (no more than that) Muslim Mindanao and the substitute the superior‘s own decision. Cordilleras.‖ CONTROL is the very heart of the power of the President. (Joson V. Torres) *Under the first component, whether refers to man executive department created by law. (Section the agency is an incorporated or unincorporated agency of the 2[7] Introductory Provisions E.O. 292) government is included in the definitions. Ex: DOJ, DENR, DOH Q. Are government owned or controlled corporations (GOCC's) part of the definition of the GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES? A. It depends (1) If the GOCC is performing governmental function, then it is part of the definition. (2) If the GOCC is performing proprietary function, then it is not part of the definition. Q. When is a GOCC deemed to be performing proprietary function? Governmental function? A. If the purpose is to obtain special corporate benefits, or earn pecuniary profit intended for private benefit, advantage - the function is Political Law Review Notes (Atty. Edwin Sandoval) Prepared by: Atty Joan P. Gamboa

BUREAU -

any principal subdivision or unit of a department (Section 2 [8] Introductory Provisions E.O. 292) Ex: BIR under DOF, NBI under DOJ

OFFICE -

refers to any major functional unit of a department or bureau including regional offices. Ex: Regional Office of the Bureau of Lands.

3 IMPORTANT ADMINISTRATIVE RELATIONSHIPS (Section 38, Chapter 7, Book IV)

(1) SUPERVISION AND CONTROL ―Supervision and Control shall include authority to act directly whenever a specific function is entrusted by law or regulation to a subordinate; direct the performance of duty, restrain the commission of acts; review, approve, reverse or modify acts and decision of subordinate officials or units; determine priorities in the execution of plans and programs; and prescribe standards, guidelines, plans and programs. Unless a different meaning is explicitly provided in the specific law governing the relationship of particular agencies, the word ―control‖ shall encompass supervision and control as defined in this paragraph. (2) ADMINISTRATIVE SUPERVISION ― Administrative Supervision which shall govern the administrative relationship between a department or its equivalent and regulatory agencies or other agencies as may be provided by law, shall be limited to the authority of the department or its equivalent to generally oversee the operations of such agencies and to insure that they are managed effectively, efficiently and economically but without interference with day to day activities; or require the submission of reports and cause the conduct of management audit, performance evaluation and inspection to determine compliance with policies, standards and guidelines of the department, to take such actions as may be necessary for the proper performance of official functions, including rectification of violations, abuses and other forms of mal-administration, and to review and pass upon budget proposals such agencies but may not increase or add to them.‖

INSTRUMENTALITY refers to any agency of the National Government, not integrated within the department framework vested with special functions or jurisdiction by law, endowed with some if not all corporate powers, administering special funds, and enjoying operational autonomy, usually through a charter. this term includes regulatory agencies, chartered institutions and GOCC's. (Sec.2 [16], Introductory Provisions, E.O. 292) REGULATORY AGENCY refers to any agency expressly vested with jurisdiction to regulate, administer, or adjudicate matters affecting substantial rights and interests of private persons, the principal powers of which are exercised by a collective body, such as a commission, board or council. (Sec. 2[4] Introductory Provisions, E.O. 292) Ex: PRC, NLRC, SEC, Insurance Commission CHARTERED INSTITUTIONS refers to any agency organized or operating under a special charter, and vested by law with functions relating to specific constitutional policies or objectives. this term includes the state universities and colleges and the monetary authority of the state. Section 2 [12] Introductory Provisions, E.O. 292) Ex: BSP

ATTACHMENT ―This refers to the lateral relationship between the department or its equivalent and the attached agency or corporation for purposes of policy and program coordination. The coordination may be accomplished by having the department represented in the governing board of the attached agency or corporation either as chairman or as a member, with or without voting rights. If this is permitted by the charter, having the attached corporation or agency comply with a system of periodic reporting which shall reflect the progress of programs and projects and having the department or its equivalent provide general policies through its representative in the board, which shall serve as the framework for the internal policies of the attached corporation or agency.‖

OTHER AGENCIES


GOVERNMENT-OWNED OR CONTROLLED CORPORATION refers to any agency organized as a stock or non-stock corporation, vested with functions relating to public needs whether governmental or proprietary in nature, and owned by the government directly or through its instrumentalities either wholly or where applicable as in the case of stock corporations to the extent of fifty-one (51%) percent of its capital stock xxx (Section 2[13] Introductory provisions, E.O. 292) -

·

Provided, the GOCC's may be further categorized by the Department of Budget, Civil Service Commission and the Commission on Audit for purposes of the exercise and discharge of their respective powers, functions and responsibilities with respect to such corporations.

These instrumentalities are NOT integrated to the department framework.

· ·

They do not fall within the control power of the president over the departments. Under Article VII, Section 17, Instrumentalities are not included.

Q. What are the administrative relationships involved? A. (1) Regulatory Agencies - mere administrative supervision, to oversee with no interference with the day-to-day operation. Ex: the relationship between NLRC and Secretary of Labor (Vertical relationship) (2) Chartered Institution/GOCC - attachment, lateral relationship involving planning and program coordination.

BEJA JR. V. COURT OF APPEALS An attached agency enjoys more autonomy than an agency placed under administrative supervision. It is free from departmentalized control. Likewise, an agency under administrative supervision has more autonomy than an agency placed under supervision and control.

Q. What kind of function? A. Executive. These agencies belong to the executive branch. They do not perform legislative and judicial functions. However, these agencies may perform quasi-legislative and quasi-judicial functions. Ex: COMELEC - to administer all laws relative to plebiscite, referendum, recall CSC - to administer the Civil Service Law Note: Not all administrative agencies perform all kind of functions. Ex: NLRC - exercises in general quasi-judicial function DOLE - the agency that administers labor law SEC - has an executive function and quasi-legislative; no more quasi-judicial LTFRB - has quasi-judicial function CSC - has an executive, quasi-legislative and quasi-judicial power

QUASI-LEGISLATIVE POWER Q. What do you mean by Quasi-legislative? A. It refers to the power or authority of an administrative agency to promulgate rules and regulations in order to implement a law or a given legislative policy.

ILLUSTRATION Delegation of Powers Conferment of Jurisdiction QUASI- LEGISLATIVE ADMINISTRATIVE AGENCY QUASI JUDICIAL Administrative Regulations

Q. Other names? A. (1) Rule-making power of an agency (2) Power of Subordinate Legislation

Jurisdiction Rules of Procedure ·

Legislative Supplemental

Interpretative Contingent

Due Process Contempt Power

QUASI-LEGISLATIVE POWER includes the power to promulgate ADMINISTRATIVE REGULATIONS or IMPLEMENTING RULES AND REGULATIONS (IRR), which are pieces of subordinate legislation called mini-laws, which may take the form of circulars or memoranda, but which cannot prevail over the laws.

Appeals Q. In what capacity did the Secretary of Labor acted in promulgating the rules and regulations implementing the Labor Code? A. He acted in his quasi-legislative capacity. POWERS AND FUNCTIONS OF ADMINISTRATIVE AGENCIES Q. Generally, how will you describe the functions of an administrative agency? A. The functions of an administrative agency are to enforce, implement, administer and execute laws.


·

In exercising quasi-legislative functions, the administrative agency is acting like Congress but not to enact laws. They cannot have more powers than Congress.

·

An administrative agency may not exercise this quasi-legislative

function unless it has been expressly delegated to it. It is a delegated power.

(1) LEGISLATIVE Regulation a. Contingent b. Supplemental (2) INTERPRETATIVE Regulation

DOCTRINE OF DELEGATION OF POWERS GENERAL RULE: A power that has already been delegated may no longer be delegated. EXCEPTIONS: Instances of Permissible Delegation of Powers: (1) Delegation to the PEOPLE through plebiscite and referendum (2) Delegation of EMERGENCY POWERS to the President (3) Delegation to the President of TARIFF POWERS (4) Delegation to ADMINISTRATIVE BODIES (5) Delegation to the LOCAL GOVERNMENT ·

The delegation to administrative bodies simply deals with QuasiLegislative powers.

Ex: Under Section 244, NIRC, ―The Secretary of Finance, upon recommendation of the Commissioner shall promulgate all needful rules and regulations for the effective enforcement of the provisions of this code.‖ -

·

This is a delegation to the Secretary of Finance. Without this delegated authority, the Secretary of Finance may not exercise the power.

The delegation must be valid. Even if the power has been delegated, if the delegation is invalid, the exercise of the power becomes an abdication of powers. Hence, it is not just a matter of delegating the power. The delegation must be valid.

TEST OF A VALID DELEGATION (1) COMPLETENESS TEST: The law delegating the power must be complete in all its terms and conditions when it leaves the Congress, so when it reaches the delegates, it will have nothing to do but to enforce it. (2) SUFFICIENT STANDARD TEST: The law must offer a sufficient standard, which are determinate, or at least determinable to specify the limits of the delegate‘s authority, announce the legislative policy and specify the conditions under which is to be implemented.

KINDS OF ADMINISTRATIVE REGULATIONS Political Law Review Notes (Atty. Edwin Sandoval) Prepared by: Atty Joan P. Gamboa

Q. What is their distinction? A. If the regulation is merely interpretative, it will not require publication. ·

When Article 2 of the New Civil Code refers to laws, these do not only refer to those enacted by Congress but includes administrative regulations promulgated by administrative bodies in their quasilegislative functions except those which are merely internal or interpretative in nature. (Tanada v. Tuvera)

Q. What are the REQUISITES OF A VALID ADMINISTRATIVE REGULATION? A. (1) Its promulgation must be authorized by the legislature (2) It must be within the scope of authority given by the legislature (3) It must be promulgated in accordance with the prescribed procedure (4) It must be reasonable FIRST REQUISITE: its promulgation must be authorized by the legislature meaning, there is a valid delegation of power. SECOND REQUISITE: it must be within the scope of authority given by the legislature. in the exercise of the delegated authority to promulgate administrative regulations, the administrative agency cannot amend the main law it seeks to implement. Otherwise, the delegate will act in excess of authority.

TOLEDO v. COMELEC Attorney Augusto Toledo, at the time of his appointment was already 57 years old. Upon discovery, COMELEC nullified his appointment on the ground that a provision in the Civil Service Rules on Personal Actions and Policies provides that ―no person shall be appointed or reinstated in the service if he is already 57 years old, unless the President of the Philippines, President of the Senate, Speaker of the House of Representatives or the Chief Justice of the Supreme Court, as the case may be, determines that he possesses special qualifications and his services are needed. SC: The provision on 57 year old person in the Revised Civil Service Rules under R.A. 2260 cannot be accounted validity. It is entirely a creation of Civil Service Commission, having no basis in the law itself that it was meant to

implement. The power vested in the Civil Service Commission was to implement the law or put it into effect, not to add to it, to carry the law into effect or execution; not to supply perceived omissions in it. By its administrative regulations, of course, the law itself cannot be extended; said regulations cannot amend an act of Congress. The Civil Service Commission is not the Congress. It may not add anything to the Civil Service Law.

be invalidated.

LAW ON PUBLIC OFFICER

THIRD REQUISITE: it must be promulgated in accordance with the prescribed procedure. among the prescribed procedure is the requirement of:

It refers to the right, authority or duty created and conferred by law by which for a given period either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some sovereign power of the sovereign function of the government, to be exercised by that individual for the benefit of the public.

What is a public office?

a. PUBLICATION Elements: CD-DIP ·

The clear objective of Article 2 of the NCC is to give the general public adequate notice of the various laws, which are to regulate their actions and conduct as citizens. Without such notice and publication, there would be no basis for the application of the maxim ignorantia legis non excusat. It would be the height of injustice to punish or otherwise burden a citizen for the transgression of a law which he had no notice whatsoever, not even a constructive one.

GR: Publication is required not only to laws passed by Congress, but includes administrative regulations, which are issued in the exercise of quasi-legislative power of the administrative agencies. XPNs: (1) interpretative regulation (2) internal regulation b. Furnish a copy of the administrative regulation to the UP LAW CENTER - ―Every agency shall file with the UP Law Center three (3) certified copies of every rule adopted by it‖ - there is nothing in the Administrative Code of 1987 which implies that the filing of the rules with the UP Law Center is the operative act that gives the rules force and effect.

FOURTH REQUISITE: it must be reasonable it must not be unreasonable, whimsical, oppressive, confiscatory - must pass the test of reasonableness - absence of one of these, the administrative regulation ought to Political Law Review Notes (Atty. Edwin Sandoval) Prepared by: Atty Joan P. Gamboa

1. It is created by law or authority of law -the powers to create and abolish public office are vested in the legislative -power to abolish is not absolute, it must be done in good faith 2. Possess a delegation of a portion of the sovereign powers of the government, to be exercised for the benefit of the public. 3. Powers conferred and duties imposed must be defined directly of impliedly by the legislature. 4. Duties must be performed independently and without the control of a superior power other than the law. 5. Must have permanence or continuity.

Is salary an element in public office? No. It is merely an incident of public office. Congress can pass a law eliminating salaries. As a rule this cannot be questioned. If Congress can remove the public office itself, then by all means. It may remove its incidence. However, everything must be done on good faith.

Characteristics of a public office: PHOP 1. Public office is a public trust It is merely entrusted to the public officer

Ex: A is holding a public office, he was removed. In this case, A may validly invoke his security of tenure. He can only be removed for a just and valid cause and there must be an observance of due process.

Article XI (Accountability of Public Officer), Sec. 1 provides: ―Public Office is a public trust. Public Officers and employees must at all means be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency, and act with patriotism, justice and lead with modest lives.

PUBLIC OFFICER

2. It is not a heritable possession

Any person, who by direct provision of law, popular election of by appointment of competent authority, shall take part in the performance of public function on the Government of the Philippines or shall perform in said Gov‘t or any of its branches public duties as employer, agent, subordinate, or official of any rank or class, shall be deemed to be a public officer.

Y? We live in a democratic and republican state. Art. II, Sec. 26 provides: The State shall guarantee equal access to opportunities for public service and prohibit political dynasties as may be defined by law (provision is not self-executing).

Who is a public officer? A public office is one who holds a public office.

May a notary public be considered as a public officer? Yes

3. It is outside the commerce of man.

SELECTION

It cannot be the subject of a valid contract.

How is public officer chosen?

If it is a subject, the contract is void.

2 ways:

4. It is not a property. It is therefore not protected or guaranteed by the due process

1. Election 2. Appointment

clause. Ex: A is holding public office, Congress decided to abolish it. A cannot complain that there was a violation of the due process clause if he was not given an opportunity to be heard, provided that the abolition is done in good faith.

ABOLITION VS REMOVAL In abolition, what is abolished is the office itself, while in removal, it is the occupant that is removed, but the office remains.


DESIGNATION -refers to the imposition of additional duties, usually by law, on any person already in public office. It presupposes that a person is already appointed. SEVILLA VS CA Generoso Sevilla was appointed as Asst. City Engineer of Palayan City, Nueva Ecija until he was designated as the Acting Eng‘r of Cabanatuan City. After the EDSA Revolution, Sevilla was ousted when the City Mayor of Cabanatuan appointed Nerito Santos as the new City Engineer. This was later confirmed by the Ministry of Public Works and Highways and approved by the CSC. This was questioned by Sevilla in an action/petition for Quo warranto filed against Santos.

appointment cannot be faulted on the ground that there are others better qualified who should have been preferred. SC: The petition is devoid of merit. An acting appointment is merely temporary, one which is good only until another appointment is made to take its place. APPOINTMENT VS DESIGNATION Appointment – selection by the proper authority of an individual who is to exercise the functions of an office. Designation – connotes merely the imposition of additional duties upon a person who is already in the public service by virtue of an earlier appointment or election. A mere designation does not confer upon the designee security of tenure in the position or office which he occupies only in an acting capacity.

LUEGO DOCTRINE: This is a political question involving consideration of wisdom which only the appointing authority may determine. For as long as the appointee has the minimum requirements, the CSC and the SC are powerless to render that a better one is more qualified. REMONTE VS CSC: The head of an agency who is the appointing power is the one who is most knowledgeable to decide who can best perform the function of an office. FLORES VS DRILON

Nature of designation

APPOINTMENT in focus

When the US-Phils treaty expired, Congress enacted RA 7227, creating the SBMA. The Charter provided that for the first year of operation, the President shall appoint the Mayor of Olongapo City as head chairman and CEO of SBMA. Thus, then Mayor Gordon assumed the positions.

Nature of appointment

SC: The Charter violates:

Essentially temporary and not entitled to security of tenure

1. Executive on character 2. Discretionary LUEGO VS CSC Felimon Luego was appointed by Mayor Solon as Administrative Officer II. His appointment was described as permanent, but CSC approved it on a temporary basis subjecting it to the final action to be taken on the protest filed by Felicula Tuazo. Subsequently, CSC found Tuazo to be better qualified than Luego and directed that Tuazo be instead appointed. Luego questioned this. SC: CSC has no authority to revoke said appointment simply because it believed that Tuazo was better qualified, for that would have constituted an encroachment on the discretion vested solely in the City Mayor. Appointment is essentially a discretionary power and must be performed by the power on which it is vested. The only condition being that the appointee should possess the qualification required by law. If he does, then the


1. Art IX-B, Section 7, part 1: ―No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure.‖ This prohibits elective officers from being appointed or designated to any public office. The only exception is when the public office is to be held in exofficio capacity.

2. Doctrine of Separation of Powers Congress encroached on the power of the President to appoint. The President was not given an option at all. The Appointment was limited to the Mayor of Olongapo. The heart or core of appointment is the power to choose. Also, the nature of appointment is discretionary, not a ministerial act.

Hence, when the Congress clothes the President with the power to appoint an officer, it cannot at the same time limit the choice of the President to only one candidate. Once the power of appointment is conferred on the President, such conferment necessarily carries the discretion on whom to appoint.

1. It applies only in cases of promotion. 2. Even in promotions, it can be disregarded for sound reasons made known to the next in rank as the concept does not import any mandatory or preemptory requirement that the person next in rank must be appointed to the vacancy.

NEXT IN RANK RULE Where can you find the said rule? Civil Service Law

3. The appointing authority is allowed to fill vacancies by promotion, transfer, reinstatement, etc.

What is the next in rank rule?

4. There is no legal fiat that a vacancy must be filled only by promotion, the appointing authority is given wide discretion to fill a vacancy from among several alternatives provided by law.

If there is a vacancy in a government office that ought to be filled up by promotion, the person holding the position next thereto shall be considered for promotion.

5. One who is next in rank is entitled to preferential consideration for promotion to higher vacancy BUT it does not necessarily follow that he and no one else can be appointed. ABILA VS CSC

Q: If the next to the Head Chief Accountant is the Deputy accountant and the third is the Administering Officer IV, then the office of Chief Accountant became vacant and the then Deputy accountant and Administering Officer IV applied, assume that another Chief Accountant applied and was appointed, can the Deputy Accountant claim that there was a violation of the next in rank rule?

When Amado Villafuerte retired from his position as Admin Officer IV in DOH-Qeuzon City, the Officer-in-Charge appointed Alex Abila, who had been the Acting Asst. Civil Security Officer, as his successor. This was questioned by Florentina Aleria, the Admin Officer III of DOH.

A: No. The next in rank rule applies only in case of promotion. What is involved here is a mere transfer, a lateral movement involving same rank and position.

SC: A vacant position in the CSC may be filled by promotion, transfer of present employees, reinstatement, re-employment or appointment of outsiders who have the necessary eligibility. The next in rank rule invoked by the CSC to justify its choice of Eleria over Abila APPLIES ONLY when a vacancy is filled by promotion, a process which denotes a scalar ascent of an officer to another position higher in rank or salary.

In case of a promotion, vertical movement from lower to a higher position. Q: What if the one that was appointed was the Administering Officer, can Deputy Accountant complain? A: Yes, because it was filled by a promotion.

Even of the vacancy here had been filled by promotion rather by a lateral transfer, the concept of next in rank rule does not import any mandatory or preemptory requirement that the person next in rank must be appointed to the vacancy. What the Civil Service Law provides is that if the vacancy is filled up by promotion, the person holding the position next in rank thereto shall be considered for promotion.

Q: Can the Deputy Officer claim that he should be the one to be appointed? The one who is next in rank is only entitled to preferential consideration. A: No, appointment is discretionary. Rules:


The next in rank rule is not absolute. disregarded.

Even in promotion, it can be

-in case of an accountable officer (Ex: Treasurer), consist in the posting of a bond. PRINCIPLE OF VACANCY Constitutional provisions related to it: Q: Jose, an employee working for ten years already, was surprised to learn that Pedro replaced him. Jose was removed. But the CSC ordered the reinstatement of Jose which became final. Can Pedro validly complain that there was a violation of security of tenure?

1. Art. 7, sec. 5 – before they enter on the execution of their office, the President, the Vice President or the Acting President shall take the following oath or affirmation XXX.

A: No. This is because there was no vacancy, hence security of tenure did not attach.

2. Art IX-B, Sec. 4 – All public officers and employees shall take an oath or affirmation to uphold and defend the Constitution.

2 PRINCIPLIES:

3. Art. XV, Sec. 5, par. 1 – All members of the armed forces shall take an oath or affirmation to uphold and defend the Constitution.

1. A person no matter how qualified cannot be appointed to an office which is not vacant. 2. One who is illegally dismissed from office is, by fiction of law, deemed not to have vacated his office. His security of tenure did not attach. QUALIFICATION TO PUBLIC OFFICE The power to prescribe qualifications to public office is vested with the LEGISLATURE.

Q: A public officer was appointed/elected. Then he assumed the office but failed to take an oath. He nonetheless preformed his duties. Are his acts valid? A: Yes, insofar only as third persons are concerned and the general public relied on the said acts. He is a de facto officer. DE JURE VS DE FACTO VS USURPER/INTRUDER De Jure Officer – One who has lawful title

THREE IMPORTANT LIMITATIONS ON THE PART OF THE CONGRESS: His acts are valid 1. If the qualifications are prescribed by the Constitution itself in an exclusive manner, then the Congress may not add nor subtract from the enumerated qualifications. 2. The qualification prescribed must be germane to the functions to be performed. 3. The qualification must be expressed in general terms only.

His title may not be questioned De Facto Officer – One who is in actual possession but only has a colorable title. His title is imperfect. His acts are valid insofar only as third persons are concerned and the general public relied on the said acts.

TWO SENSES OF QUALIFICATION:

His title may only be questioned directly in a quo warranto proceedings.

1. As an act 2. As an endowment Intruder/Usurper – No Title but in actual possession QUALIFICATION AS AN ACT His acts are entirely void -consists in taking of an oath


His acts may be questioned collaterally or directly.

- this is the most important

Q: Is a De Facto Officer entitled to salary?

- only Filipinos may hold public office

A: As a rule, No. This is because he is not allowed to benefit from his acts. Otherwise it will encourage people to usurp other office. When he assumes office knowing that his title is imperfect, he runs the risk of not receiving a salary that attaches to the office.

b. residence

EXCEPTIONS:

In Civil Law, residence and domicile are different. In the said law, a person may only have several residences but may only have one domicile. In Ploitical Law, particularly in election law, residence and domicile are the same.

1. There is no de jure officer claiming for the salary OR

- only in elective office – as an elective official, he/she must serve in a particulare constituent

2. Assumption was made in good faith. 3 CLASSES OF DOMICILE FLORES VS DRILON 1. Domicile of Birth SC: Gordon should not be made to reimburse for such emoluments. Otherwise the gov‘t will be unjustly enriched by his services. Gordon was a de facto officer.

2. Domicile of Choice 3. Domicile by Operation of Law

Prescriptive Period to attack a colorable title: MACALINTAL VS COMELEC 1 year from the disposition from office. After 1 year, the de facto officer will ripen into a de jure one. REQUIREMENTS OF A DE FACTO OFFICERSHIP -

At any given point, a person may only have one domicile Domicile of Origin

1. Existence of a de jure office (NO such thing as a de facto office, office is either valid or void)

-

2. Color of title.

this is acquired by any person at birth it is the domicile of the child‘s parents and not necessarily the place of birth.

3. Actual physical possession of the office. Domicile of Choice QUALIFICATION AS AN ENDOWMENT - possession of attributes to be qualified - refers to Citizenship, Age, Civil service eligibility, Education, Residence (CACER) - qualifications are continuing a. citizenship


take place if one leaves his original domicile, he was able to establish his physical presence in another locality.

Domicile by Operation of Law -

domicile law attributes to a person; independent to his intention or residence

EX: woman (resident of Cabanatuan City) marries husband (resident of Pasig City), woman will adopt the residence of husband.

IMELDA ROMUALDEZ-MARCOS VS COMELEC Imelda run as a congresswoman in Leyte. For the resident requirement, she should be a resident thereof for a period of not less than 1 year immediately preceding the election. Her qualification was questioned on the ground that under the Civil Code, when the woman gets married, she gets the residence of the husband by operation of law. Pres. Marcos was a resident of San Juan. At that time, Family Code does not exist yet. SC: With the death of her husband, her adoption of the San Juan residency is lost. CAASI VS COURT OF APPEALS Miguel Merito ran for mayor in Bolinao, Pangasian. A disqualification case was filed against him by Mateo Caasi, a rival candidate for the position on account of his being a green cardholder. His defense was that (1) he was voted by the people, hence the defect was cured. Also, he alleged that (2) he never really intended to live there permanently, for all he wanted was a green card to enable him to come and go to the U.S. with ease because he had to undergo a regular check-up.

To be qualified to run for any elective office in the Philippines, the law requires that the candidate who is a green cardholder must have waived his status as a permanent resident or immigrant of a foreign country. Therefore his act of filing a certificate of candidacy for elective office in the Philippines did not of itself constitute as a waiver of his status as a permanent resident of U.S. The waiver of his green card should be manifested by some act or acts independent of and done prior to filing his candidacy for elective office in this country. Without such waiver, he was disqualified to run for any elective office. The fact was that he is a green cardholder and has acquired the right to reside in other country. The renunciation of the green card requires a separate act; the filing of the certificate of candidacy is not renunciation. What is involved in this case is not citizenship but rather permanent residency in another country. SC on Argument No (2) -- He never really intended to live there permanently, for all he wanted was a green card to enable him to come and go to the U.S. with ease because he had to undergo a regular check-up: Even if he never really intended to live there permanently, this court will not allow itself to be a party to his duplicity by allowing him to benefit from it and giving him the best of both worlds to speak.

OTHER QUALIFICATIONS AS AN ENDOWMENT c). age

SC: Argument No.1) he was voted by the people, hence the defect was cured:

--must be possessed on the day of the election d). education

Merito was disqualified. People of Bolinao cannot amend the Omnibus Election Code (OEC). His election thereto was null and void. The law applicable to him is Sec. 68 of the OEC –―Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, UNLESS such person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws.

--a qualification under Civil Service Law --true only to appointive officials, in case of elective official, minimum requirements are that he must be able to read and write e). civil service eligibility Religious Affiliations --cannot be a valid disqualification to hold public office


--No religious test shall be required for the exercise of civil or political rights

Q: What offenses? A: Those sentenced by final judgment

Political Affiliation

1. Moral turpitude

G.R. Not a valid qualification

2. Punishable by one year or more of imprisonment

Xpn: Can be a valid qualification under: 1. Party-list system

DELA TORRE VS COMELEC

2. Membership in the Commission on Appointments

Violation of Anti-Fencing Law constitute an offense involving moral turpitude.

3. In case of permanent vacancies in the Sanggunian DISQUALIFICATIONS: 2. Those removed from office as a result of an administrative offense: Sec. 40, LGC. Disqualifications. – The following persons are disqualified from running for any elective local position: 1. Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one year or more of imprisonment within two years after serving the offense; 2. Those removed from office as a result of an administrative offense; 3. Those convicted by final judgment for violating an oath of allegiance to the Republic;

LINGATING VS COMELEC The administrative case must have attained finality for the disqualification to apply. If still pending appeal or on certiorari, disqualification is not applicable.

If the penalty is removal – disqualification shall apply

4. Those with dual citizenship; 5. Fugitives from justice in criminal or non-political cases here or abroad;

If the penalty is suspension – disqualification not applicable by express provision of Sec. 66, LGC, as long as he meets the qualifications required.

6. Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after the effectivity of this Code; and

4. Those with dual citizenship:

7. The insane or feeble-minded.

- this refers to dual allegiance (Mercado vs Manzano)

1. Within two years after serving the offense: -partial disqualification


5. Fugitives from justice in criminal or non-political cases here or abroad:

MARQUEZ JR VS COMELEC In May 1995 election, Rodriguez ran for Governor (Quezon Province). He won. Marquez, a defeated candidate, filed a disqualification case against Rodriguez under sec. 40(e) after finding out that Rodriguez had criminal charges against him of insurance fraud or grand theft of personal property. Contention of Rodriguez – Not fugitive from justice because he is not yet convicted by final judgment.

Borja was first elected as Vice Mayor in 1988 at Pateros. In 1989, the Mayor died, so he replaced the Mayor. During the 1992 elections, he ran and won. In 1995, he again ran and won. In 1998, he ran again. His qualification was questioned.

SC: Borja is qualified. The term limit for elective local officials must be taken to refer to the right to be elected as well as the right to serve in the same elective position. Consequently, it is not enough that an individual has served three consecutive terms in an elective local office, he must also have been elected to the same position for the same number of times before the disqualification can apply.

SC: No. Fugitive from justice applies not only to those convicted by final judgment and who absconds to evade punishment BUT also to one, where a valid criminal information is already filed and he absconded to evade jurisdiction.

TWO POLICIES EMBODIED HERE:

RODRIGUEZ VS COMELEC

1. To prevent the establishment of political dynasties

Although there was indeed fraud insurance case before California court, HE IS NOT A FUGITIVE FROM JUSTICE because cases were filed 5 months after he has returned to the Philippines, controlling factor was the intent to evade jurisdiction. He could not have intent to evade because there is no information yet.

the the the the

2. To enhance the freedom of choice of the people

TWO CONDITIONS FOR THE LIMITATION TO APPLY (both must concur): 1. The local official must be elected for three consecutive terms for the same position.

LIMITATION ON THE TERM OF THE ELECTIVE OFFICIALS 2. He has fully served the 3 consecutive terms. Art. V, Section 8 – The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected.

If resigned: voluntary renunciation, not considered as an interruption from office, limitation will apply If suspended: interruption from office – involuntary renunciation

Term: 3 years except barangay officials Can serve for three consecutive terms BORJA VS COMELEC


Q: Mayor was elected in 1988. He ran and won again on 1992 and 1995 election. But there was an election protest regarding the 1995 election. On March 1998, he was removed because of a COMELEC decision. Is he qualified to run in the 1998 election?

A: YES. He was only elected twice since he eventually lost in the election protest. In 1995, he is merely a presumptive winner. There is a failure of the two conditions (LONZANIDA VS COMELEC).

started June 30, 2001. After a year, a resolution calling for a special election was passed. On the said special election, Hagedorn filed his certificate of candidacy. His qualification was questioned.

Q: X was elected Mayor in 1992 election. In 1995 and 1998 elections, he ran and won again. In December 2000, as a result of an administrative case, he was removed. He did not appeal. The administrative case becomes final. Is he qualified to run in the 2001 election?

SC: He is qualified. The three term limit is found in Art. X, Sec. 8 and reiterated in Sec. 43, par. B of LGC. WHAT IS PROHIBITED IS IMMEDIATE RE-ELECTION to the SAME OFFICE for a FOURTH CONSECUTIVE TERM. In this case there is an intervening date.

A: NO! He is disqualified to run because of Sec. 40 of the LGC and not because of Art. X, Sec. 8. Q: What if in 2004 and 2007 he wins again, then in 2010, he wants to run again, is he qualified to run? LINGATING VS COMELEC – The administrative case must have attained finality before the disqualification to apply. If still pending appeal or certiorari, disqualification is not applicable.

Q: X was elected in 1992. In 1995 and 1998, he ran and won again. In 2000, as a result of an administrative case, he was removed but he has able to appeal seasonably. In May 2001, he filed his certificate of candidacy. The administrative case was not yet decided. Is he qualified? A: Yes he is qualified to run.

Q: What happens to his pending appeal? A: It becomes moot and academic because of the Doctrine of Condonation. The rationale for this is that when the electorate puts him back to the position, it is presumed that they did so with knowledge of his life, character and past mistakes.

A: SC in the same case said that: The service of a recall term shall constitute one full term. Reason: Elected official in a recall election should know that the service of recall term shall constitute one full term. (OBITER DICTUM)

MENDOZA VS COMELEC In 1992, Tet Garcia won as governor. In 1993, Recall election was made, Ting Roman won as governor. In 1995 and 1998 elections, Roman won again. In 2001, Roman ran again. Is he qualified to run?

SC: He is qualified. Recall term is not a full term. Looking at the Constitutinal records and the Constitution, it can be seen that they both envision continuance and uninterrupted service of term. The service of recall term should not be counted in applying the disqualification.

Q: With this ruling, has the ruling in Socrates been abandoned? SOCRATES VS COMELEC (Nov. 10, 2002, En Banc) Hagedorn was elected as Mayor in 1992, 1995 and 1998 elections. In the next election, he ran as governor. However, he lost. Meanwhile, the one elected as Mayor of Puerto Princesa was Socrates. Socrates‘ term


A: No. What has been abandoned in Socrates was a mere Obiter Dictum. No actual controversy yet.

Service of recall term will not constitute one full term in applying the disqualification.

(2) If a GOCC was incorporated pursuant to the General Corporation, it is without original charter -It is nor governed by Civil Service Law

CIVIL SERVICE COMMISSION

-In case of illegal termination, jurisdiction is with the Labor Arbiter or NLRC, hence governed by Labor Code.

One of the Constitutional Commissions It is the central personnel agency of the government tasked to administer all the civil service. COMPOSITION AND QUALIFICATION Art. IX-B, Sec. 1(1) – The civil service shall be administered by the Civil Service Commission composed of a Chairman and 2 Commissioners who shall be a natural born citizens of the Philippines, and at the time of their appointment, at least 35 years of age, with proven capacity for public administration, and must not have been a candidates for any elective position in the elections immediately preceding their appointment. SCOPE Art. IX-B, sec. 2(1) – The Civil Service embraces all branches, subdivisions, instrumentalities and agencies of the government, including the GOCC with original charters.

BOY SCOUTS OF THE PHILIPPINES VS NLRC The BSP is an instrumentality attached to DECS and no less than the President himself is the Chief Scout. No less than 7 members of the Cabinet are members of the BSP. In short, there is so much government exposure. They are governed Civil Service Laws and not the Labor Code. CAMPOREDONDO VS NLRC Baltazar Camparedondo was a chapter administrator of PNRC. During a field audit, he was found short. His request for a re-audit by an independent auditor of his account was denied. Thereafter, he filed with NLRC a complaint for illegal dismissal. PNRC moved to dismiss the complaint on the ground of lack of jurisdiction over the subject matter, alleging that it is embraced within the Civil Service rules and regulations, being a GOCC with an original charter. Camporedendo questioned this contending that its charter was already amended corverting it to a public corporation.

TEST: WITH OR WITHOUT ORIGIANL CHARTERS (1) If a GOCC was created by special law, it is with original charter - The special law creating it is the charter - It is governed by the Civil Service law - In case of illegal termination, it is under the jurisdiction of the regular courts Ex: DBP, Land Bank, PCSO, PAGCOR, GSIS

SC: Philippine National Red Cross is a GOCC with an original charter under R.A> 95, as amended. The test to determine whether a corporation is government owned or controlled or private in nature is simple. Is it created by its own charter for the exercise of a public function or by incorporation under the general incorporation law? Those with special charters are government corporations subject to its own provisions and its employees are under the jurisdiction of CSC and are compulsory members of the GSIS. The PNRC was not impliedly converted to a private corporation simply because its charter was amended.

KINDS OF APPOINTMENTS


1. Permanent – extended to one who possesses all the qualifications including civil service eligibility. 2. Temporary - extended to one who possesses all the qualifications but without the civil service eligibility.

The law requires publication of all vacant positions in the government. This is mandatory so that all eligible can apply.

BAR Question: What are the characteristics pf career positions as well as non-career positions? 1. Career – a. Entrance is based on merit and fitness to be determined based on competitive examination or it is based on highly technical qualifications; b. There is security of tenure; c. Opportunity for advancement to a higher position.

Positions that need not be published include PRIMARILY CONFIDENTIAL POSITIONS, which are co-terminus with the appointing authority. 2. Non-Career – Duration of Temporary Appointment -

one year but it may even be shorter

a. Entrance is based other than those tests of merit and fitness utilized for the career service; b. Tenure is: 1. Limited to a period specified by law;

Q: X was given an extended temporary appointment to a given office. In the meantime, A took the Civil Service examination and passed. Is the appointment status of X automatically converted to permanent?

2. Coterminous with that of the appointing authority or subject to his pleasure; or

A: NO! There is a need for a new appointment.

3. Limited to the duration of a particular project for which the purpose for employment was made.

Regular employee – used in Labor Code only, not in Civil Service Q: How do you classify position of members of the Sangguniang Panlalawigan? CLASSIFICATION OF __(DI Ko TALAGA MABASA, MALABO COPY KO)___IN CIVIL SERVICE

A: Non-career. It is an elective office.

1. Career Service 2. Non-career Service


All elective officials occupy non-career positions since no examination is required to be taken and the tenure is limited to a period specified by law.

HIGHLY TECHNICAL POSITIONS -

terminous with the pleasure of the appointing authority. There is no removal but only expiration of term.

One which requires the possession of skill or training in the supreme or superior degree Ex: Scientist in the government service Professors in the state universities

When pleasure becomes displeasure, the term becomes fixed and automatically expires. One who is holding a primarily confidential position, who was removed from in the ground of loss of trust and confidence cannot complain on the ground that there was a violation of his security of tenure.

Q: How do you classify highly technical positions? A: Career

PROXIMITY RULE

Q: Are engineers in the government occupy highly technical positions?

- This is the test to determine whether or not the position is primarily confidential or not. The distance between the positions of the appointing authority and the employee is considered.

A: NO! They may possess technical skills or training but not in the supreme or superior degree, hence non-career. CSC VS SALAS PRIMARILY CONFIDENTIAL POSITIONS Q: What are their classifications? A: Non-Career. There tenure is co-terminous with that of the appointing authority or subject to his pleasure.

DEFINITION OF PRIMARILY CONFIDENTIAL POSITIONS It is one which denotes not only confidence in the aptitude of the appointee for the duties of the office bur primarily close intimacy which insures freedom from the intercourse without embarrassment from misgivings or betrayals of personal trust or confidential matters of state.

Salas was an employee of PAGCOR, a GOCC with an original charter. He was a supervisor of the dealers in the casino. He was suspected in engaging in proxy betting. There was a discreet investigation conducted of his act. He was later removed on the ground of loss of trust and confidence. His defense was that he cannot be removed from office on the ground that under the Constitution, no employee of the Civil Service shall be removed except for causes provided by law. On the other hand, PAGCOR contends that under its charter, all positions are primarily confidential and hence may be removed in the ground of loss of confidence. CSC affirmed his dismissal. On appeal, CA reversed and applied the proximity rule.

GRINO VS CSC

SC: Applying the proximity rule, Salas cannot be removed on the said ground. The position of Salas as a supervisor is too remote from the appointing authority, the Chairman. There are so many intermediaries between them.

The position of a provincial attorney is both highly technical and primarily confidential position. But its predominant feature is primarily confidential. Hence, he can be removed based on loss of trust or confidence. However his staff is highly technical. He holds the position co-

The occupant of a particular position could be considered a confidential employee if the predominant reason why he was chosen by the appointing


authority was the latter‘s belief that he can share a close intimacy with the occupant which ensures freedom of discussion without fear of embarrassment or misgivings of possible betrayal of personal trust or confidential matters of the State.

A: Local Chief Executive

OMBUDSMAN ACT OF 1989 (RA 6770) Art. IX-B sec. 2 par. 2 – Appointment in the Civil Service shall be made only according to merit and fitness to be determined as far as practicable and except to positions which are policy-determining, primarily confidential or highly technical, by competitive examination. (It has nothing to do with the classification of his position as career on non-career).

-

the charter of the Ombudsman under this law, the Ombudsman has disciplinary authority overall public officers whether appointive or elective, national or local, except: (1) Impeachable officers – Pres, VP, Members of SC, ConCon, Ombudsman (Justices of the Sandiganbayan – not included). (2) Members of Congress

ADMINISTRATIVE DISCIPILINARY CASES

(3) Members of the Judiciary

Q: Who has jurisdiction over administrative disciplinary cases?

Appeal from the decision of Ombudsman in an administrative case

A: Under the Civil Service Law:

Under the Ombudsman Act - Directly to the Supreme Court (Remember, the Constitution provides that no law shall be passed increasing the appellate jurisdiction of the SC without its advice and concurrence.)

ORIGINAL: CSC or head of office, agency or bureau APPEAL: CA under its expanded jurisdiction

FABIAN VS DESIERTO Secretary/head of bureau-CSC-CA

Q: Can you bring an administrative case directly with the CSC?

Direct appeal to the SC has been declared unconstitutional. Its enactment was in violation of Art. VI Sec. 30 of the Constitution which provides that no law shall be passed increasing the appellate jurisdiction of the SC without its advice and concurrence. The provision in the Ombudsman Act has the effect of increasing the appellate jurisdiction of the SC without its advice and concurrence.

A: Yes. CSC has original and appellate jurisdiction. Under the Civil Service law, a complaint against a government official or employee may be filed directly to the CSC (not only to the heads of office).

Now, the rule is: OmbudsmanCA

Q: Under LGC, where do you file?

GOVERNOR LITO LAPID VS CA

CSCCA


An administrative case was filed against Lapid by the Ombudsman. After investigation, it was found that he was guilty. The penalty was suspension from office for one year without pay. He was able to appeal seasonably. Ombudsman Desierto wanted to execute the decision pending appeal. SC: Under the Ombudsman Act, only the following cases are final and executory:

2. If the penalty is: a. suspension for not more than 30 days; b. fine not more than 30 days salary; c. censure;

1. Provisional orders of the Ombudsman; d. reprimand; 2. Decision where the penalty is: e. admonition a. suspension for not more than 30 days; b. fine not more than 30 days salary; c. censure; d. reprimand; e. admonition EXCLUSIO UNIUS EST INCLUSIO ALTERIUS – The suspension against Lapid is clearly not among those enumerated as immediately executory. The clear import of these provisions, taken together, is that all other decisions of the Office of the Ombudsman which impose penalty outside than those which are enumerated are not final and unappealable, hence not immediately executory. An appeal timely filed will suspend or stay immediate execution of the decision.

Appeal will not lie; the decision is final and executory by express provision of the law. Appeal is not a constitutional right but merely a statutory right. Why? Not part of the Constitution Q: X was charged administratively, she was later on exonerated. May the complainant appeal? A: No. However, with respect to the meaning of party adversely affected, the ruling under Paredes has already been abandoned. Hence the answer now is YES.

APPEALS IN ADMINISTRATIVE DISCIPLINARY CASES

PAREDES VS CSC

Q: Is appeal available in administrative disciplinary cases?

Appeal is not a constitutional right but merely a statutory right. A reading of the Civil Service Law will tend to show that appeal is available only to the party adversely affected by the decision. A further reading of the law, the party adversely affected by the decision is the respondent who was found guilty. In fact, even if he was found guilty but the penalty was suspension or fine for not more than 30 days, appeal cannot be made because the decision in such a case becomes final and executory. With more reason that if he is exonerated, no more appeal. In an administrative case, the real offended party is the government; the complainant is a mere complaining witness so that he has no personality to pursue the appeal. Hence, party adversely affected was limited to the defendant.

A: Depends on the penalty imposed – 1. If the penalty is: a. demotion; b. dismissal; c. suspension for more than 30 days or a fine equivalent to more than 30 day salary; Appeal is available.

CSC VS DACOYCOY


Dacoycoy was the head of a government vocational school in Samar. Two of his sons were extended permanent appointment under his administrative supervision although he was not the one who neither appointed nor recommended them. A case was filed against him for violation of the law on nepotism. CSC found him guilty. The penalty was dismissal. As the party adversely affected, he appealed to CA. CA exonerated him. If we will follow the Paredes ruling, there is no more appeal and the complainant cannot appeal because is merely a complaining witness. SC: CSC can appeal because it was their decision that was reversed by the CA. To this extent only, CSC became the party adversely affected. By this ruling, the Paredes Doctrine, up to this extent, is abandoned. The phrase ‗party adversely affected‘ refers to the government employee against whom the administrative case is filed for the purpose of a disciplinary action which may take the form of suspension, demotion in rank or salary, etc. and not included are the cases where the penalty imposed is suspension for not more than 30 days or fine in an amount not exceeding 30 days salary. (PAREDES VS CSC)

Preventive suspension pending investigation is not a penalty. It is simply a means of preventing the latter from interfering or intimidating the witnesses against him. YABOT VS OMBUDSMAN VASQUEZ An administrative case was filed against Vice-Mayor Yabot by an American doctor. He was placed under preventive suspension for 60 days. Yabot contends that he was already suspended and hence, can no longer be suspended again.

SC: The first suspension that was imposed was not the penalty. It is merely a preventive suspension. The second suspension was the penalty. The two suspensions are of different nature. The service of preventive suspension cannot be credited with the service of suspension as penalty.

LAYNO VS SANDIGANBAYAN PREVENTIVE SUSPENSION (pending investigation) Nature: Not a penalty. It is imposed while the case is being investigated or pending appeal. It should be distinguished from dismissal or suspension which may only be imposed upon investigation and subsequent finding of guilt.

If the preventive suspension, however, becomes indefinite, so much that the term of the elective official is about to expire and his suspension is not yet lifted, in effect he was being penalized and considering that after the investigation is not yet terminated, to that extent, there was a denial of due process, hence must be nullified. Also, the right to due process of the people who voted for him is likewise violated. A preventive suspension that lasted for 5 years becomes an indefinite suspension and therefore violative of due process.

BEJA, SR VS CA Preventive suspension is not a penalty by itself; it is imposed only during the pendency of an administrative investigation. It is merely a measure of precaution so that the employee who is charged may be separated for obvious reasons, from the scene of his alleged misfeasance, ehilr the same is being investigated. Thus, preventive suspension is distinct from the administrative penalty of removal from office such as the one mentioned in Sec 8 (d) of PD 807. While preventive suspension may be imposed on a respondent during the investigation of the charges against him, the removal from office is a penalty which may only be meted out upon him at the termination of the investigation or the final disposition of the case. GLORIA VS CA


A preventive suspension is not an action by itself but merely an incident to an action. To know what law is applicable in case of a preventive suspension, determine first if administrative or criminal case. A. ADMINISTRATIVE CASE 1. Civil Service Law Period - 90 days Case – Gloria vs CA

2. Local Government Code

their salaries during their suspension beyond 90 days. granted. Hence, Sec. Gloria questioned this.

This was

Period – 60 days for appointive officials  3. Ombudsman Act

60 or 90 days fro elective officials

Period – 6 months Case – Hagad vs Gonzales B. CRIMINAL CASE 1. Anti-Graft and Corrupt Practices Act Period – 90 days applying by analogy PREVENTIVE SUSPENSION IN AN ADMINISTRATIVE CASE I. CIVIL SERVICE LAW If one is charged administratively, while pending investigation, he can be preventively suspended for a period of 90 days. If after the lapse of the 90 day period and the investigation has not been terminated, there will be an automatic reinstatement. However if one contributed to the delay of the proceedings or has filed a petition for certiorari, the period of the delay or certiorari will not be included in the computation of the 90 day period of preventive suspension. Q: Who shall impose the preventive suspension? A: The CHIEF of the office, agency or bureau shall be the disciplinary authority. GLORIA VS CA During the teachers‘ strike, the public school teachers in this case did not report for work. Accordingly, they were administratively charged and placed under preventive suspension. The investigation concluded before their 90 day suspension and they were found guilty. On appeal, Merit Systems and Protection Board, later affirmed by the CSC, dismissed their claim. Before the CA, they asked that they be paid for


SC: The public school teachers are entitled to their salaries computed from the time of their dismissal or suspension until their actual reinstatement, for a period of not exceeding 5 years. There are two kinds of preventive suspension of civil service employees who are charged with offenses punishable by removal or suspension: 1. Preventive Suspension pending investigation 2. Preventive suspension pending appeal, if the penalty imposed is suspension or dismissal and after review the respondent is exonerated on appeal. Preventive suspension pending investigation is not a penalty. It is a measure intended to enable the disciplining authority to investigate charges against the respondent by preventing the latter from intimidating or in any way influencing witnesses against him. If the investigation is not finished and the decision is not rendered within the period, the suspension will be lifted and the respondent will automatically be reinstated. If after the investigation, the respondent is found innocent of the charges and is exonerated, he should be reinstated. However, no compensation was due for the preventive suspension pending investigation. In case of a suspension pending appeal, he is entitled to compensation for the period of their suspension pending appeal if eventually he is found innocent. Why? It is actually punitive in character although it is in effect subsequently considered illegal if respondent is exonerated and the administrative decision finding him guilty is reversed. Hence, he should be reinstated with full pay for the period of the suspension. SIGNIFICANCE OF THE DIFFERENCE: Pending Investigation – not entitled. Why? Not a penalty but is entitled t reinstatement. Pending Appeal – if on appeal he is exonerated, he is entitled to full backwages and reinstatement; it is punitive in character. II. LOCAL GOVERNMENT CODE

1.) Sec. 85 LGC – ―Preventive Suspension of Appointive Local Officials and Employees. a.) The local chief executives may preventively suspend for a period not exceeding sixty (60) days, any subordinate official or employee under his authority pending investigation, if the charge against such official or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty, or if there is reason to believe that the respondent is guilty of the charges which would warrant his removal from the service. b.) Upon the expiration of the preventive suspension, the suspended official or employee shall be automatically reinstated in office without prejudice to the continuation of the administrative proceedings against him until its termination, if the delay in the proceedings of the case is due to the fault, neglect or request of the respondent, the time of the delay shall not be counted in computing the period of suspension herein provided.

Q: Maximum period of preventive suspension? A: 60 days

b.) Preventive suspension may be imposed at any time after the issues are joined, when the evidence of guilt is strong, and given the gravity of the offense, there is great probability that the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence: Provided, that any single preventive suspension of local elective officials shall not extend beyond sixty (60)days; Provided further that in the event that several administrative cases are filed against an elective official, he cannot be preventively suspended for more than ninety (90) days within a single year on the same ground or grounds existing and known at the time of first suspension. c.) Upon expiration of the preventive suspension, the suspended elective official shall be deemed reinstated in office without prejudice to the continuation of the proceedings against him, which shall be terminated within one hundred twenty (120) days from the time he was formally notified of the case against him. However, if the delay in the proceedings of the case is due to his fault, neglect or request, other than the appeal duly filed, the duration of such delay shall not be counted in computing the time of termination of the case. d.) Any abuse of the exercise of the power of preventive suspension shall be penalized as abuse of authority.

Q: Who shall impose? A: the local chief executives

Q: Period? A: 60 days for every administrative charge

2.) Sec. 63 LGC- “Preventive Suspension. – a.) Preventive suspension may be imposed: (1) By the President, if the respondent is an elective official of a province, a highly urbanized or an independent component city; (2) By the governor, if the respondent is an elective official of a component city or municipality; or (3) By the mayor, if the respondent is an elective official of he barangay


90 days if there are several administrative charges, during a given year

Q: who shall impose? A: if respondent isa.) Barangay official – mayor

b.) Official of component city or municipality – Governor c.) Official of independent component or highly urbanized city or province- President

Ombudsman Act (RA 6770) – administrative jurisdiction -

JURISDICTION -

The ombudsman or his deputy has the power to preventively suspend For a period of 6 months

Appointive Officials

HAGAD vs. JUDGE GOZO-DADOLE

Q: Where do you file an administrative complaint against local appointive officials?

An administrative case was filed against a Mayor in one of the towns in Visayas. He was placed under preventive suspension for 6 months. He argued that being a local elective official his preventive suspension cannot exceed 60 days as provided in the LGC and the LGC being later enactment, is deemed to have repealed the Ombudsman Act with respect to the imposition of the preventive suspension.

A: From Local chief executive  Civil Service Commission  Court of Appeals

Elective Officials Q: where do you file an administrative complaint against local elective offificals? A: (1) Barangay official in a a. Municipality- sangguniang bayan b. City – sangguniang panglungsod (2) Official of a municipality – sangguniang panlalawigan (3) City official and provincial official – Office of the President

*Sec. 63 relate to Sec. 62 (c) LGC – ―xxx no investigation shall be held within ninety (90) days immediately prior to any local election, and no preventive suspension shall be imposed within the said period. If the preventive suspension has been imposed prior to the 90-day period immediately preceding local election, it shall be deemed automatically lifted upon the start of aforesaid period.‖

SC: There is nothing in the LGC (RA 7160) to indicate that it has repealed the pertinent provisions of the Ombudsman Act (RA 6770). Repeals by implication are not favored. Every statute must be so interpreted and brought into account with other laws as to form a uniform system of jurisprudence. Besides, the grounds to impose preventive suspension under the LGC and the Ombudsman Act are different. The Ombudsman has concurrent jurisdiction with the officers who have authority to impose preventive suspension pursuant to Section 63 of LGC. PREVENTIVE SUSPENSION IN CRIMINAL CASE Anti-Graft and Corrupt Practices Act (RA 3019) Section 13 RA 3019 – Suspension and Loss of Benefits – ―Any incumbent public officer against whom any criminal prosecution under a valid information under this Act or under Title 7, Book II of the RPC or for any offense involving fraud upon government or public funds or property whether as simple or as complex offenses and in whatever stage of execution and mode of participation, is pending in court shall be suspended from office. Should he b e convicted by final judgment, he shall lose all retirement or gratuity benefits under any law, but if he is acquitted, he shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during the suspension, unless in the meantime administrative proceedings have been filed against him.‖ Q: Who has the authority to impose preventive suspension?

GANZON vs. CA


A: the law is silent. However in LUCIANO vs. PROVINCIAL GOVERNOR, the Court interpreting Sec.13 held that ―It is the court where the criminal case was filed that has the authority to impose preventive suspension pursuant to Sec. 13.‖ It is not the fiscal or prosecutor nor the Ombudsman. A court that has acquired jurisdiction will have to exercise jurisdiction also over the incidence of the case. Q: Before what court should the case be filed? A: Depends – a. Salary grade 27 and over – Sandiganbayan b. Below salary grade 27 – RTC or MTC ―shall be suspended from office‖  Preventive Suspension is mandatory. The Court has no discretion whether to place the officer under preventive suspension or not.  While preventive suspension is mandatory, it is NOT automatic. The court must conduct a PRE-SUSPENSION HEARING, the purpose of which is for the court to determine the validity of the criminal information filed against the accused public officer. It is only when the court is satisfied that the criminal information was validly filed that the court will impose preventive suspension. Only then that the preventive suspension becomes mandatory. (SOCRATES vs. SANDIGANBAYAN) Q: What is the duration of the preventive suspension? A: The law is silent. However in GONZAGA vs. SANDIGANBAYAN, the court held that the Civil Service Law should be applied by analogy since Sec. 13, RA 3019 is silent as to the duration of the preventive suspension. Hence, the duration is ninety (90) days. There are no more cases now of indefinite suspension. BAYOT vs. SANDIGANBAYAN; SEGOVIA vs. SANDIGANBAYAN; DELLOSA vs. SANDIGANBAYAN X was a municipal mayor. He was criminally charged before the Ombudsman. While the Ombudsman was investigating the criminal complaint, there was an election. X ran for governor and won. In the meantime, the Ombudsman filed the criminal case against him with the Sandiganbayan. The Sandiganbayan issued the preventive suspension against X. X now contends that he can no longer be preventively suspended for the acts he did when he is still a mayor.


SC: the contention is not correct. The amendatory provisions clearly states that any incumbent public officer against whom any criminal prosecution under a valid information under RA 3019 or for any offense involving fraud upon the government or public funds or property whether as a simple or as a complex offense and in whatever stage or execution and mode of participation, is pending in court shall be suspended from office. Thus by the use of the word ―office‖ the same applies to any office which the officer charged may be holding and not only the particular office which he was charged. *Section 13 RA 3019 does not state that the officer concerned must be suspended only for the office he was charged. *Moreover, should the purposes behind preventive suspension become manifest, the respondent court is not bereft of remedies or sanctions. The petitioner may still be suspended but for specifically expressed reasons and not from an automatic application of Section 13, RA 3019. SANTIAGO vs. SANDIGANBAYAN/ PAREDES vs. SANDIGANBAYAN When X was a governor, a criminal complaint against him for violation of anti-graft was filed. While the Ombudsman was investigating, there was an election. X ran for Congressman and won. In the meantime, the Ombudsman filed the criminal information against X before the Sandiganbayan. The Sandiganbayan issued a suspension order addressed to the Speaker of the House of Representatives for him to carryout the order. The Speaker refused to execute because it violated Section 16 par 3 Article VI of the Constitution (Each House may determine the rules of its proceedings, punish its own members for disorderly behavior and either the concurrence of 2/3 of all its members, suspend or expel a member. A penalty of suspension, when imposed shall not exceed 60 days) SC: there is no encroachment here. What is being imposed by the Sandiganbayan is not a penalty but merely a preventive suspension. Members of Congress are not exempted from the operation of Section 10, RA 3019. The law says ―any incumbent public officer‖. We are only interpreting the law as you wrote it. The Speaker of the House was held in contempt of the Sandiganbayan. SUSPENSION AS A PENALTY Q: Can imprisonment of 10 days be imposed if found guilty? A: No. Administrative cannot impose penalties which involve deprivation of life and liberty. Hence cannot impose imprisonment, Doctrine of Condonation – only in administrative cases

AGUINALDO vs. SANTOS – term of elective officials are distinct from each other and when elected again the public is deemed to have condoned his past misconduct; he cannot be punished under the new term of office. PROHIBITIONS/ INHIBITIONS/ DISQUALIFICATIONS 1.

Article IX-B, Section 7, par 1 – ―No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure.‖

General Rule: ―No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure.‖ Exception: Elective official can hold other positions/ office in an ex-officio capacity. The prohibition extends only to public and not to private positions. (FLORES vs. DRILON) 2.

Article IX-B, Section 7, par 2 – ―Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the Government or any subdivision, agency, or instrumentality thereof, including government owned and controlled corporations or their subsidiaries.‖

General Rule: Appointive official not allowed from holding other position in the government

subsidiaries. They shall strictly avoid conflict of interest in the conduct of their duties.‖ General Rule: President, Vice President, Cabinet Members, deputies, assistants shall not hold any office or employment *the provision is new *the prohibition is broad – covers both public and private position Exception: Unless otherwise provided in the 1987 Constitution e.g. 1) Vice President may become member of the Cabinet 2) Secretary of Justice is an ex-officio member of JBC CIVIL LIBERTIES UNION vs. EXECUTIVE SECRETARY President Aquino issued an executive order (EO284) allowing her Cabinet members to hold more than 2 offices. The appointments were challenged by the Civil Liberties Union. Defense of the Solicitor General, members of the Cabinet are appointive officials hence Article IX-B sec 7 (2) shall apply and that they fall under the exception. SC: this cannot be allowed. The work of the cabinet members demands full time work. Their position is sui generis. Article VII, section 13 is a new provision. The reason is to avoid what happened in the Marcos era. It is a special provision which applies to Cabinet members. Article IX-B sec. 7 (2) on the other hand is a general provision. Hence, the EO is unconstitutional. *see also PUBLIC INTEREST CENTER vs. ELMA June 30, 2006

Exceptions: a. allowed by law b. allowed by the primary functions of their position (CIVIL LIBERTIES UNION vs. EXECUTIVE SECRETARY) 3.

Article VII Section 13, par 1 – ―The President, Vice-President, the members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during said tenure, directly or indirectly, practice any other profession, participate in any business or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency or instrumentality thereof. Including government owned or controlled corporations or their


4.

Article VI section 13 – ―No Senator or Member of the House of Representatives may hold any other office or employment in the government, or any subdivision, agency or instrumentality thereof, including government owned or controlled corporations or their subsidiaries during his term without forfeiting his seat. Neither shall he be appointed to any office which may have been created nor the emoluments thereof increased during the term for which he was elected.  Prohibition on incompatible and forbidden office

5.

Article XVI, Section 5, par 4 – ― No member of the armed forces in the active service shall, at any time be appointed or designated in any capacity to a civilian position in the Government including

government owned or controlled corporations or any of their subsidiaries 6.

Law on Nepotism Violation results to dismissal with forfeiture of benefits Found in the Civil Service Law Under Section 59, Civil Service Law – ― All appointments in the national, provincial, city, and municipal governments or in any branch or instrumentality thereof, including government owned or controlled corporations, made in favor of a relative of the appointing or recommending authority, or of the chief of the bureau or office or of the persons exercising immediate supervision over him, are hereby prohibited. The word ―relative‖ and members of the family referred to are rd those related within third (3 ) degree of either consanguinity of affinity.‖

CSC vs. DACOYCOY April 1999 En Banc Under the law on nepotism, a public official is guilty of nepotism, if an appointment is issued in favor of a relative within the third civil degree of consanguinity or affinity of any of the following: a. Appointing authority b. Recommending authority c. Chief of bureau or office d. One who exercises immediate supervision over the appointee SC: Clearly, there are four situations covered. In the last two mentioned situations, it is immaterial who the appointing or recommending authority is. To constitute a violation of the law, it suffices that an appointment is extended or issued in favor of a relative within the third civil degree of consanguinity or affinity of the chief of the bureau or office, or the person exercising immediate supervision over the appointee. EXCEPTIONS TO THE LAW ON NEPOTISM 1. Teachers 2. Physicians 3. Persons employed in a confidential capacity 4. Members of the Armed Forces of the Philippines 5. Member of a family who, after his or her appointment to any position in an office or bureau, contacts marriage with someone in the same office or bureau, in which event, the


employment or retention therein of both husband and wife may be allowed. Under Article VII, Section 13 – ― The President may not appoint his spouse th or relatives within the 4 civil degree of consanguinity or affinity to a. Member of Constitutional Commission b. Office of the Ombudsman c. Secretaries and Undersecretaries d. Chairman, heads of bureau or offices Prohibited relationships rd Under the Civil Service Law = 3 Civil Degree th Under the LGC = 4 civil degree SEC. 79. Limitation on Appointments. - No person shall be appointed in the career service of the local government if he is related within the fourth civil degree of consanguinity or affinity to the appointing or recommending authority. DEBULGADO vs. CIVIL SERVICE COMMISSION It was contended that the law on nepotism applies only to original appointments but not to promotional appointments. SC: The law on nepotism applies to all kinds of appointment because the law does not distinguish. A textual examination of Section 69 at once reveals that the prohibition was cast in comprehensive and unqualified terms. Firstly, it explicitly covers ―all appointments‖ without seeking to make ay distinction between differing kinds or types of appointments. Secondly, Section 59 covers all appointments to the national, provincial, city, and municipal governments, as well as any branch or instrumentality thereof and all government owned or controlled corporations. Thirdly, there is a list of exceptions set out in Section 59 itself, but it is a short list. Both an original appointment and a promotion are particular species of personnel action. The original appointment of a civil service employee and all subsequent personnel actions undertaken by or in respect of that employee such as promotion, transfer, reinstatement, reemployment, etc. must comply with the Implementing Rules including of course the prohibition against nepotism in Rule XVIII. The conclusion we reach is that Section 59 Book V, EO 292 means exactly what it says in plain and ordinary language. It refers to all appointments whether original or promotional in nature. The public policy embodied in section 59 is clearly fundamental in importance, and the court has neither authority nor inclination to dilute that important public policy by introducing a qualification or discretion here.

LAUREL vs. CSC Laurel who was the governor of Batangas granted his brother, Benjamin Laurel a promotional appointment as Civil Security Officer, a position classified as primary confidential by the Civil Service. Q: Was there a violation of the law on nepotism? A: No. It is under the exceptions of the law Later on, he designated his brother to the position of Provincial Administrator a position in the Career Civil Service. Laurel contends that he did not violate the law on nepotism because he merely designated his brother not appointed him. Designation presupposes that he has already been appointed and merely given additional function. SC: The appointment or designation as Acting Provincial Administrator was violative of the prohibition against nepotism, then embodied in Section 49 PD No. 807. Moreover, the Court emphatically agrees with the CSC that although what was extended to Benjamin was merely a designation and not an appointment xxx the prohibitive mantle on nepotism would include designation because what cannot be done directly cannot be done indirectly. We cannot accept petitioner‘s view. His specious and tenuous distinction between appointment and designation is nothing more than either a play ingeniously conceived to circumvent the rigid rule on nepotism or a last ditch maneuver to cushion the impact of its violation. The rule admits of no distinction between appointment and designation. ―Designation‖ is also defined as all appointment or assignment to a particular office, and ―to designate‖ means to indicate, select, appoint, or set apart for a purpose of duty. *for purposes of the law on nepotism, appointment and designation are the same. 7. Section 90, LGC – ―Practice of Profession – (a) All governors, city and municipal mayors are prohibited from practicing their profession or engaging in any occupation other than the exercise of their functions as local chief executives. (b) Sanggunian members may practice their professions, engage in any occupation, or teach in schools except during session hours, Provided, that sanggunian members who are also members of the Bar shall not: (1) Appear as counsel before any court in any civil case wherein a local government unit or any office, agency or instrumentality of the government is the adverse party;


(2) Appear as counsel in any criminal case wherein an officer or employee of the national or local government is accused of an offense committed in relation to his office; (3) Collect any fee for their appearance in administrative proceedings involving the local government unit of which he is an official; and (4) Use property and personnel of the Government except when the Sanggunian member concerned is defending the interest of the government. (c) Doctors of medicine may practice their profession even during official hours of work only on occasions of emergency. Provided, that officials concerned do not derive monetary compensation therefrom. Q: Can a mayor practice his profession? A: No. Q: Can members of the sanggunian practice their profession? A: Yes, except during session hours. Q: Can Vice mayor exercise his profession? A: Yes. Vice Mayor belongs to the legislative, while sanggunian members must be interpreted in general terms. There is no prohibition. Hence, the Vice Mayor can e belongs to the legislative, while sanggunian members must be interpreted in general terms. There is no prohibition. Hence, the Vice Mayor can exercise or practice his profession. However, in case the Vice Mayor becomes acting mayor or acting governor, he cannot practice or exercise his profession because in such case then, he exercises an executive position. (Atty. Sandoval) JAVELLANA vs. DILG Atty. Javellana is a member of the Sanggunian Panlalawigan. Two of the employees of the Provincial Engineer‘s Office were removed. They asked for his assistance and so Atty. Javellana appeared in their behalf. He was prohibited from appearing on the ground that the same is prohibited by the LGC where the adverse party is the government. He went to the Supreme Court and challenged the constitutionality of Section 90, LGC on two grounds: 1) the provision is unconstitutional because it encroached the power of the Supreme Court to regulate the practice of law; and 2) the provision violates the equal protection clause because the law profession was singled out. SC: There is no encroachment on the power of the SC to regulate the practice of law. Section 90 LGC is a reasonable regulation designed to ensure that there shall be no conflict of interest in the

exercise of his functions as a sanggunian member and his function as a lawyer. There is no violation of the equal protection clause. Under the equal protection clause, not all classifications are invalid. There is a substantial distinction between the law profession and the other professions. Of all the professions, it is this profession that is most likely to affect the area of public service. Moreover, Section 90 LGC does not discriminate against lawyers and doctors. It applies to all provincial and municipal officials in the professions or engaged n any occupation. It explicitly provides that Sanggunian members may practice their professions, engage in any occupation, or teach in schools except during session hours. If there are some prohibitions that apply particularly to lawyers, it is because of all the professions, the practice of law is more likely than others to relate to, or affect, the area of public service. 8. SEC. 40. Disqualifications. - The following persons are disqualified from running for any elective local position: (a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence; (b) Those removed from office as a result of an administrative case; (c) Those convicted by final judgment for violating the oath of allegiance to the Republic; (d) Those with dual citizenship; (e) Fugitives from justice in criminal or nonpolitical cases here or abroad; (f) Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after the effectivity of this Code; and (g) The insane or feeble-minded.

VACANCIES AND SUCCESSIONS (Section 44-45, LGC) Section 44, LGC – ―Permanent vacancies in the offices of the Governor, Vice Governor, Mayor and Vice Mayor. - If a permanent vacancy occurs in the office of the governor or mayor, the vice governor or vice mayor concerned shall become the governor or mayor. If a permanent vacancy occurs in the offices of the governor, vice governor, mayor or vice mayor, the highest ranking sanggunian member shall become the governor, vice governor, mayor or vice mayor as the case may be. Subsequent vacancies in the said offices shall be filled automatically by the other sanggunian members according to their ranking as defined herein.


(b) If a permanent vacancy occurs in the office of the punong barangay, the highest ranking sangguniang barangay member or in case of his permanent inability, the second highest ranking sanggunian member shall become the punong barangay. (c) A tie between or among the highest ranking sanggunian members shall be resolved by drawing of lots. (d) The successors as defined herein shall serve only the unexpired terms of their predecessors. For purposes of this Chapter, a permanent vacancy arises when an elective local official fills a higher vacant office, refuse to assume office, fails to qualify, dies, is removed from office, voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions of his office. For purposes of succession as provided in this chapter, ranking in the sanggunian shall be determined on the basis of the proportion of votes obtained by each winning candidate to the total number of registered voters in each district in the immediately preceding local election. *In case of permanent vacancy (section 44) automatic succession applies, so in case of death of mayor, the vice mayor succeeds, in case of the vice mayor, the highest ranking sangguniang member succeeds. Illustration:

1. 2. 3.

Pedro Mario Jose

District I (10,000) 5,000

District II (8,000) 4,500

5,000

Q: For purposes of succession, how do you determine ranking? A: For purposes of succession, ranking in the sanggunian shall be determined on the basis of the proportion of votes obtained by each winning candidate to the total number of registered voters in each district in the immediately preceding local election (sec 44, LGC last par) *Therefore Mario is the highest ranking member. Q: Who is ranking between Pedro and Jose? A: A tie between or among the highest ranking Sanggunian members shall be resolved by the drawing of lots. (Sec. 44 par c, LGC) Q: Let us assume that 8 sanggunian members, the last ranking died. What happens? A: Apply sec. 45 LGC, not the rule on automatic succession.

Section 45, LGC – ―Permanent vacancies in the Sanggunian – (a) Permanent vacancies in the sanggunian where automatic successions provided above do not apply shall be filled by appointment in the following manner: (1) The President, through the executive secretary, in the case of the sangguniang panlalawigan and the sangguniang panlungsod of highly urbanized cities and independent component cities; (2) The governor, in the case of the sangguniang panlungsod of component cities and sanggunian bayan; (3) The city or municipal mayor, in the case of sangguniang barangay, upon recommendation of the sangguniang barangay concerned. (b) Except for the sangguniang barangay, only the nominee of the political party under which the sanggunian member concerned had been elected and whose elevation to the position next higher in rank created the last vacancy in the sanggunian shall be appointed in the manner herein after provided. The appointee shall come from the same political party as that of the sanggunian member who caused the vacancy and shall serve the unexpired term of the vacant office. In the appointment therein mentioned, a nomination and certificate of membership of the appointee from the highest official of the political party concerned are conditions sine qua non, and any appointment without such nomination and certification shall be null and void ab initio and shall be ground for administrative action against the official responsible therefor. (c) In case the permanent vacancy is caused by a sanggunian member who does not belong to any political party, the local chief executive shall, upon recommendation of the sanggunian concerned, appoint a qualified person to fill the vacancy. (d) In case of vacancy in the representation of the youth and the barangay in the sanggunian, said vacancy shall be filled automatically by the official next in rank of the organization concerned. Q: Who shall appoint? A: (1) Sangguniang Bayan Governor Sangguniang PAnglungsod in component cities (2) Sangguniang Panglungsod of Highly Urbanized Cities Sangguniang Panglungsod of Independent Component President Sangguniang Panlalawigan Political Law Review Notes (Atty. Edwin Sandoval) Prepared by: Atty Joan P. Gamboa

Cities

*If one who will be replaced belongs to a political party, the successor must come from the same political party. If he does not belong to a political party then apply Sec. 45(c) Q: Who shall appoint? A: Local chief executive upon the recommendation of the sanggunian concerned. FARIÑAS vs. BARBA The last ranking sanggunian bayan member who did not belong to any political party resigned. To fill the vacancy, both the mayor and the governor appointed their own choice. SC: Neither of the two appointees should assume position. Sec 45 (c) LGC must be read together with Sec 45 (a). Since this is a municipality, the governor should appoint but with the recommendation of the sanggunian concerned which is the sanggunian bayan where the vacancy took place. NAVARRO vs. CA Composition of the municipal government: Mayor ………………………………………………… Lakas NUCD Vice Mayor…………………………………………. Lakas NUCD st th 1 to 5 sanggunian member…………….. Reporma th 6 Sanggunian Member…………………….. Lakas NUCD th 7 Sanggunian Member…………………….. Reporma th 8 Sanggunian Member…………………….. Lakas NUCD Therefore in the Sanggunian, there were 6 Reporma and 2 Lakas. The mayor died. The Vice mayor became the Mayor. The last ranking position became vacant so the governor appointed someone from Reporma. Lakas protested because the vacancy came from Lakas. SC: Governor is correct. What is crucial is the interpretation of Sec. 45 (6). The reason behind the right given to the political party to nominate a replacement is to maintain the party representation as willed by the people in the election. With the elevation of Tamayo (Reporma) as the Vice Mayor it diminished the Reporma‘s representation in the Sanggunian. Hence, the one appointed should come from Reporma.

GAMBOA JR. vs. AGUIRRE JR. July 20, 1994 The governor went abroad. He was away for 3 months. Governor issued an administrative order designating the Vice governor as acting governor. The acting governor wants to preside in the session of the sanggunian. SC: Being the acting governor, he cannot simultaneously exercise the functions of his office. The power of the vice governor to preside over sanggunian session is suspended as long as he is the acting governor. The creation of temporary vacancy in the office of the governor creates a corresponding vacancy in the office of the vice governor. Q: Then who will preside in the meantime? A: Under sec. 49 (b) LGC – ―In the event of the inability of the regular presiding officer to preside at a sanggunian session, the members present and constituting a quorum shall elect from among themselves a temporary presiding officer. He shall certify within ten (10) days from the passage of ordinances enacted and resolutions adopted by the sanggunian in the session over which he temporarily presided.― Hence, the members present and constituting a quorum shall elect from themselves the temporary presiding officer. Do not apply the rule in permanent vacancy. Q: Who appoints the barangay treasurer, secretary and other appointive officials of the barangay? A: Punong barangay appoints barangay secretary, treasurer, and other appointive official with the approval of the majority of the members of the sangguniang barangay. (ALGUIZOLA vs. GALLARDO) The power of appointment is exercised with approval of sanggunian, therefore in removing or replacing an appointive official, there must also be approval of the majority of sanggunian barangay members. Sec. 388, LGC – ―Persons in authority – For purposes of the RPC, the punong barangay, sanggunian barangay members and members of the lupong tagapamayapa in each barangay shall be deemed as persons in authority in their jurisdiction, while other barangay officials and members who may be designated by law or ordinance and charged with the maintenance of public order, protection and security of life and property, or the maintenance of a desirable and balanced environment and any barangay member who comes to the aid of persons in authority shall be deemed agents of persons in authority.

RECALL -

Provided in Section 69-75, LGC. This is a mode of removing a local elective official before the expiration of his term.


GARCIA vs. COMELEC There is no need for a criminal charge before a recall may be initiated. There is only one ground, loss of confidence EVARDONE vs. COMELEC A recall is a political question not subject to judicial review. It is a political question that has to be decided by the people in their sovereign capacity. 2 STAGES 1. Initiatory 2. Special Recall Election *The official sought to be recalled becomes a candidate automatically. Hence, he is prohibited from resigning. * There is only one way of initiating a recall – through a petition signed by at least: 25% of registered voters – below or 20,000 total registered voters of LGU concerned 20% of registered voters – more than 20,000 but less than 75,000 total registered voters of LGU concerned 15% of registered voters – more than 75,000 but less than 300,000 total registered voters of LGU concerned 10% of registered voters – more than 300, 000 total registered voters of LGU concerned *The PREPARATORY RECALL ASSEMBLY (PRA) has been REPEALED. (RA 9244)

ANGOBUNG vs. COMELEC A was a mayor, a year after his election was sought to be recalled. There was a recall process initiated by only one person. The COMELEC approved the petition and assigned a signing day. Angubong went to the SC alleging grave abuse of discretion. SC: The petition for recall signed by only one person is a violation of the 25% statutory requirement. The law is plain and unequivocal as to what constitutes a recall proceeding.

LIMITATION ON RECALL (SEC.74) a. An elective official can be subjected to recall only once b. No recall shall take place within one year from the assumption of office or one year immediately preceding a regular local election. PARAS vs. COMELEC Paras was a punong barangay. There was a petition for recall. The SK election was scheduled during that year when the petition was filed. The contention of PAras was that there would be a regular election; hence the recall cannot push through. SC: The term regular local election refers to one where the position of one sought to be recalled is actually to be contested and filled by the electorate. ANGOBUNG vs. COMELEC The limitation on recall shall not apply if the official sought to be recalled is a Mayor and the forthcoming election is a barangay election. CLAUDIO vs. COMELEC The issue in this case is the interpretation of ―within one year from the date of assumption to office.‖ Claudio was elected as Mayor. His term started 30 June 1998. On 19 May 1999, members of the then Preparatory Recall Assembly convened on their plans to initiate a petition for recall against Claudio. On 29 May 1999, majority of the members of the PRA adopted a resolution calling for the recall of Mayor Claudio. It was submitted 2 July 1999. The Comelec scheduled a special recall election. SC: the resolution was validly adopted. The recall refers to the election itself wherein the voters themselves decide whether or not to retain the official concerned. It does not refer to the initiation proceedings. SOCRATES vs. COMELEC On May 2001, the governor elected was Socrates. 2 July 2002, members of the Preparatory Recall Assembly adopted a resolution calling for the recall of Governor Socrates. 24 September 2002 there would be a recall election. On 15 July 2002, there was a barangay election. Most of the members who signed the recall resolution lost in the election. Hence, it was contended that those who signed have no mandates because they lost in the election. SC: The contention is not correct, when the members adopted the resolution, their term of office have not yet expired. They were still de jure officers with no legal disqualification to participate.


AFIALDO vs. COMELEC Miranda was elected Mayor. On the other hand, Navarro was elected the Vice Mayor. Members of the Preparatory Recall Assembly adopted a resolution calling for the recall of Vice mayor Navarro. Mayor Miranda was removed by SC. The Vice mayor assumed office. SC: The recall elections become moot and academic. It is clear from the resolution that they wanted to remove him from being a vice mayor. AFIALDO vs. COMELEC Before vice mayor Amelita Navarro assumed mayorship, Joel Miranda was still mayor. Decision in MIRANDA vs. ABAYA was not yet promulgated. When she was vice mayor, the members of the PRA of Santiago City adopted a resolution calling for the recall of vice mayor. This resolution was submitted to Comelec. A special recall election was then scheduled. Meanwhile the decision in the Miranda vs. Abaya was promulgated. Vice mayor Navarro assumed the mayorship upon the removal of Joel Miranda as mayor. What happens now to the special recall election for vice mayor? SC: it has been rendered moot and academic. It is clear from the resolution of the members of the preparatory center of Santiago City that they wanted to recall her as vice-mayor. They got what they wanted. She is no longer the Vice-mayor. She is now the Mayor.  LOCAL GOVERNMENT ADMINISTRATIVE REGIONS

UNITS/

AUTONOMOUS

REGIONS/

Article X, Section 1 – ―The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao and the Cordilleras as herein after provided.‖ AUTONOMOUS REGIONS Article X, Section 15 – ―There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines.‖ ADMINISTRATIVE REGIONS

Mere grouping of provinces for administrative purposes. They are not considered as political and territorial subdivision. There is a need for a plebiscite to be a political subdivision. E.g. Region 1 Q: Who has the power to create administrative regions? A: It has been traditionally exercised by the President in line with his supervisory powers over the LGUs. LIMBORA vs. MARGELIN Concept of Local Autonomy Decentralization of Administration Decentralization of Power Central government Abdication of political delegates power in favor of LGU; administrative power free to chart its own to local government in destiny. order to broaden the base of the government.

Q: What kind of autonomy is contemplated by the Constitution? A: Only decentralization of administration, as not to make the LGU sovereign within the state. But with regards to autonomous region, decentralization of power which contemplates grant of political autonomy. METROPOLITAN POLITICAL SUBDIVISION Article X Section 11 – ―The Congress may, by law, create special metropolitan political subdivisions, subject to a plebiscite as set forth in section 10 hereof. The component cities and municipalities shall retain their basic autonomy and shall be entitled to their own local executives and legislative assemblies. The jurisdiction of the Metropolitan Authority that will thereby be created shall be limited to basic services requiring coordination. Q: Is MMDA a special metropolitan political subdivision? A: No! The creation of MMDA was not subject to a plebiscite. Also MMDA has no police or ordinance power. It is purely administrative. MMDA vs. BEL-AIR VILLAGE In view of the traffic congestion, Bel-Air was compelled to open its village to the public. SC: This cannot be done. The MMDA is not a political unit; not a LGU; nor a metropolitan political subdivision. The chairman was not elected by the people. It is the LGU that possesses legislative and police power. Political Law Review Notes (Atty. Edwin Sandoval) Prepared by: Atty Joan P. Gamboa

DUAL NATURE OF LGU 1. Body politic 2. Body corporate DUAL FUNCTION OF LGU 1. Acting as body politic- governmental 2. Acting as a corporate entity representing the inhabitantsproprietary TWO KINDS OF PROPERTY OF LGU 1. Properties for public service – owned in the governmental capacity e.g. streets 2. Patrimonial property – owned in their proprietary capacity e.g. north cemetery DACANAY Case Property owned for public service cannot be a subject of a contract. CONDITIONS BEFORE A PROPERTY OWNED FOR PUBLIC SERVICE BE CONVERTED TO PATRIMONIAL PROPERTY 1. Continuous non use for public service 2. Positive act from legislative branch withdrawing use of property from public service MAKASIANO vs. COMELEC In this case, there was a positive act from Congress but the same is not enough because the two requirements must be met. CREATION, DIVISION, MERGER, ABOLITION, OR SUBSTANTIAL ALTERATION OF BOUNDARY Article X, Section 10 – ―No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the Local Government Code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected.‖ TWO REQUIREMENTS 1. It must be according to the criteria established in the LGC. Criteria established under the LGC: Veritable indicators a. income b. population c. land area

2.

Subject to the approval by a majority of the votes cast in a plebiscite in the political units directly affected.

Q: Who shall vote? A: PADILLA vs. COMELEC Voters are not limited to the voters of the new area but also the voters of the parent unit. Since the parent unit is also affected.

3.

Equitable share in the proceeds of the utilization and development of national wealth. Article X, Section 7 –― Local governments shall be entitled to an equitable share in the proceeds of the utilization and development of national wealth within their respective areas, in the manner provided by law, including sharing the same with the inhabitants by way of direct benefits.‖

*The doctrine under Paredes has been abandoned by TAN vs. COMELEC, as reaffirmed in the Padilla vs. Comelec.

MUNICIPALITY OF PARAÑAQUE vs. VM REALTY The municipality expropriated a property to be converted into a Youth Center. The issue is: what is required in order for LGU to exercise its eminent domain powers?

Q: In the income requirement, should the IRA be included in the computation? A: Yes.

SC:

SC: The basis of IRA is Article X, Sec 6. This is not self-executing. It is implemented in the LGC. LGU‘s are entitled to 40% of the total national taxes. The allocations in Sec 285 LGC- Allocations to Local Government Units.- The share of local government units in the internal revenue allotment shall be allocated in the following manner: a. Provinces – 23% b. Cities – 23% c. Municipalities – 34% d. Barangays – 20%

Under Section 19, LGC, an ordinance is required. Section 19, LGC – ―Eminent Domain – a local government unit, may through its chief executive and acting pursuant to an ordinance, exercise the power of eminent domain for public use, or purpose, or welfare for the benefit of the poor and the landless, upon payment of just compensation, pursuant to the provisions of the Constitution and pertinent laws. Provided, however, that the power of eminent domain may not be exercised unless a valid and definite offer has been previously made to the owner, and such offer was not accepted; Provided further that the local government unit may immediately take possession of the property upon the filing of the expropriation proceedings and upon making a deposit with the proper court of at least fifteen percent (15%) of the fair market value of the property based on the current tax declaration of the property to be expropriated. Provided finally, that the amount to be paid for the expropriated property shall be determined by the proper court based on the fair market value at the time of the taking of the property.‖

Hence, IRAs are regular recurring income. It does not constitute as a mere transfer. It should be included in the computation. It is an income of the LGU.

Ordinance vs. Resolution Ordinance -is a law

MAIN SOURCES OF INCOME OF LGU’s

- possesses a general; permanent character - a third reading on its enactment is required

ALVAREZ vs. GUINGONA Congress passed a law creating Santiago. The IRA was excluded.

Article X, Section 5 – ―Each local government unit shall have the power to create its own sources of revenues and to levy taxes, fees, and charges subject to such guidelines and limitations as the Congress may provide, consistent with the basic policy of local autonomy. Such taxes, fees and charges shall accrue exclusively to the local government.‖ 2. IRA Article X, Section 6 – ― Local government units shall have a just share, as determined by law, in the national taxes which shall be automatically released to them.‖ 1.


Resolution - merely a declaration of sentiment or opinion of the lawmaking body - temporary - no reading in its enactment is required unless approved by majority of sanggunian members

Q: Do LGUs have inherent powers? A: None. They are pure creations of the legislative branch. POWER TO TAX

Of the three powers of the state, the power to tax is constitutionally delegated power to LGU, subject to guidelines as the Congress may provide in accordance with Article X sec. 5. POLICE POWER ; EMINENT DOMAIN They are delegated by the Congress not by the Constitution *Police Power: Section 16, LGC – General Welfare – ―Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order and preserve the comfort and convenience of their inhabitants. *Eminent Domain: SEC. 19. Eminent Domain. - A local government unit may, through its chief executive and acting pursuant to an ordinance, exercise the power of eminent domain for public use, or purpose, or welfare for the benefit of the poor and the landless, upon payment of just compensation, pursuant to the provisions of the Constitution and pertinent laws: Provided, however, That the power of eminent domain may not be exercised unless a valid and definite offer has been previously made to the owner, and such offer was not accepted: Provided, further, That the local government unit may immediately take possession of the property upon the filing of the expropriation proceedings and upon making a deposit with the proper court of at least fifteen percent (15%) of the fair market value of the property based on the current tax declaration of the property to be expropriated: Provided, finally, That, the amount to be paid for the expropriated property shall be determined by the proper court, based on the fair market value at the time of the taking of the property.

---- End---Good Luck and God Bless Us all.

By:

Atty. Edwin Sandoval

(1) An individual person as subject of international law Subject of international law defined -

an entity which has an international personality

-

an entity has an international personality if it has rights which may be directly enforced or it has obligations for which it may be held directly accountable under international law.

☻an entity although it has rights, but which can be enforced only through another medium is not a subject. It is merely an object.

* Two views: a.) Traditional view – only states are subject of international law. - only states have rights which may be directly enforced or have obligation for which it may be held directly accountable under international law. b.) Modern view – not only states are proper subjects of international law. proper subjects

- international organizations (ie. United Nations) are also of international law.

proper subject of

- to a limited extent, the individual is now considered as international law.

Govt. of HK special administrative region (represented by Phil. DOJ) vs. Hon. Olalia - the modern trend in public international law is the primacy place on the worth of the individual person and the sanctity of human rights.

DEVELOPMENTS IN PUBLIC INTERNATIONAL LAW Political Law Review Notes (Atty. Edwin Sandoval) Prepared by: Atty Joan P. Gamboa

- slowly, the recognition that the individual person may properly be a subject of international law is taking root. - the vulnerable doctrine that the subject of international law are limited only to states was dramatically eroded towards the second half of the past century. - for one, the Nurumberg and Tokyo trials after WWII resulted in the unprecedented spectacle of individual defendants prosecuted for acts characterized as violations of the laws of war, crimes against peace, and crimes against humanity. - recently, under the Nurumberg principle, Serbian leaders have been prosecuted for war crimes and crimes against humanity committed in the former Yugoslavia. - these significant events show that the individual person is now a valid subject of international law. ☻ when the individuals were held directly accountable for their crimes, he is no longer regarded as a mere object of international law, he has become a subject of international law. ☻ the justification for assumption of jurisdiction over the individual is that crimes against international law are committed by men and not by abstract entities. It is only by punishing individuals who commit such crimes can the provisions of international law be enforced. ☻ another instance when an individual is regarded as subjects of international law is in case of human rights violations. - more often, an individual‘s human rights is violated by his own government such that he cannot have a recourse against his own government.

charter of the UN itself.

known as the Rome statute.

- it is the principal judicial organ of the UN.

- it is a separate body.

- only states may be parties to disputes in international court of justice.

- international criminal court will try persons/individuals, not states, who commit the most serious crimes of international concern.

* Jurisdiction of the International Criminal Court over the following offenses: a.) genocide b.) crimes against humanity c.) war crimes d.) crimes of aggression ☻ common characteristics of the four – they are the most serious crimes of international concern. ☻ terrorism is not included. ethnic or

Genocide – the deliberate destruction or annihilation of a racial, religious group.

to eliminate

Ex. Holocaust during the WWII – deliberate policy of Hitler all the jews in the world.

* Organization of International Criminal Court - 18 judges

- he may have recourse to the international human rights body.

- subject to increase in number by authority of Article 36 of its statute

(2) Creation/establishment of International Criminal Court - organized into: a) appeal division – president and four * ICC vs. ICJ

other judges

ICJ

ICC

- was created pursuant to the

- was created by a separate treaty


b) trial division – three judges c) pre-trial division – three judges

- the judicial functions are carried out by judges in chambers - the workload of the court may require more than one trial chamber or pre-trial chamber

- pertain to rights of an individual as a human being which are recognized by the international community as a whole through their protection and promotion under contemporary international law.

- judges of Appeals chamber shall serve only in that International Law on Human Rights

division - other organs of the court: a) presidency b) office of the prosecutor

- the law which deals with the protection of individuals and groups against violations by government of their internationally guaranteed rights, and with the promotion of these rights.

c) registry (office of clerk of court)

* Classification of Human Rights/ Three Generation of Human Rights: Principle of Complementarity st

a.) 1 generation of human rights – consisting of civil and political rights - the international criminal court shall be complementary to national criminal jurisdiction. - this gives primacy to national jurisdiction. If the national court has already assumed jurisdiction, icc can no longer assume jurisdiction.

nd

generation of human rights – consisting of economic, social and cultural rights.

rd

generation of human rights – consisting of right to development, right to peace and right to environment.

b.) 2 c.) 3

- unless, the proceeding in the national court is: a) for the purpose of shielding the person concerned from liability;

* Human rights are either: or

a) individual

b) not conducted independently or impartially. permanent resources. (3) International Human Rights

b) collective – right to self determination of people; the sovereignty over natural

International Bill of Rights

Human Rights human rights in - those liberties, immunities, and benefits which all human beings should be able to claim ―as of right‖ of the society in which they live by accepted contemporary values.

- the term used to designate the three main instrument of the international plane, which are: a) the universal declaration of human rights b) the international covenant on economic, social

& cultural rights - those fundamental and inalienable rights which are essential for life as a human being.

c) the international covenant on civil & political rights


☻ Recognition and importance given to Human Rights by international organizations and states - on December 10, 1948, the UN General Assembly adopted the Universal Declaration of Human Rights in which the right to life, liberty and all other fundamental rights of every person were proclaimed. - while not a treaty, the principles contained in the said declaration are now recognized as customarily binding upon the members of the international community. * Sources of International Law: 1) Primary a) treaties or international conventions b) international custom c) general principles of law recognized by

- The Philippines has the responsibility of protecting and promoting the right of every person to liberty and due process, ensuring that those detained or arrested can participate in the proceedings before a court, to enable it to decide without delay or the legality of the detention and order their release. Govt. of HK special administrative region (represented by Phil. DOJ) vs. Hon. Olalia - the Philippine authorities are under obligation to make available to every person under detention such remedies which safeguard their fundamental right to liberty. - these remedies include the right to be admitted to bail - while this court in the Purganan case, limited the exercise of the right to bail to criminal proceedings, however, in the light of various international treaties giving recognition and protection to human rights, particularly the right to life and liberty, a re-examination of this Court‘s ruling in the Purganan case is in order.

civilized nations (4) International Humanitarian Law (IHL) 2) Secondary d) judicial decisions e) teachings of authoritative publicists of various nations.

☻ Universal Declaration of Human Rights, while not a treaty, has evolved as an international custom, a primary source of international law. ☻ The Philippines commitment to uphold the fundamental human rights as well as the worth and dignity of every person

- used to be called laws of war/ laws of armed conflict (which may refer to both international armed conflict and internal armed conflict) - that branch of public international law which governs armed conflict to the end that the use of violence is limited and that human suffering is mitigated or reduced by regulating or limiting the means of military operations and by protecting persons who do not or no longer participate in hostilities. * Three Grand Divisions of International Law: a) Laws of Peace – govern relations between and among nations under normal circumstances.

- commitment is enshrined in Section 2, Article II of our Constitution. person and rights.‖

- it provides: ―The state values the dignity of every human guarantees full respect for human


b) Laws of War – govern relations between and among belligerent states (states at war) during wartime.

c) Laws of Neutrality – govern the relations of third states not parties to the war with any of the belligerent states. (but the relations of third parties inter se shall still be governed by the laws of peace) * Principal legal documents are: 1.) Geneva Convention of 1949 – define fundamental rights for combatants removed from the fighting due to injury, illness or capture and for civilians. a) Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the field of August 12, 1949

- Protocol I of June 8, 1977 b) Protocol Additional to Geneva Conventions of August 12, 1949 and Relating to the Protection of Victims of Non-International Armed Conflicts - Protocol II of June 8, 1977 ☻ IHL encompasses both humanitarian principles and international treaties that seek to save lives and alleviate suffering of combatants and non-combatants during armed conflict. It is not concerned with the lawfulness or unlawfulness of armed conflicts. * International Humanitarian Law vs. Human Rights Law

- first Geneva convention IHL

HRL

- applies in situations of armed conflict

- protects individuals at all times (in war and peace alike)

- no derogation from certain rights are permitted because it was conceived for emergency situations namely armed conflict

- may permit of some derogation from certain rights in situations of public emergency

- aims to protect people who do not or are no longer taking part in hostilities

- tailored primarily for peace time; apply to everyone

- applies to armed forces in the field (land) b) Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of Aug 12, 1949 - second Geneva convention - applies to armed forces ate sea (navy) c) Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949 - third Geneva convention - deals with prisoners of war Person in time of

d) Geneva Convention to the Protection of the Civilian war of August 12, 1949

☻ the rules embodied in IHL impose duties on all parties to a conflict

☻ HRL does not deal with conduct of hostilities.

- fourth Geneva convention - applies to civilians 2.) 1977 Additional Protocols – supplement the Geneva convention a) Protocol Additional to Geneva Conventions of August 12, 1949 and Relating to the Protection of Victims of International Armed Conflicts


☻ their principal goal is to protect individuals from arbitrary behavior by their own government;

- provides for specific mechanisms that help its implementation

- human rights in implementing mechanisms are complex and includes regional systems.

* Basic Rules of IHL: (1.) Attacks must be limited to combatants and military targets

members of the

Combatants – persons taking direct part in hostilities or armed forces.

Military targets – combatants and objects which by their nature, location, purpose or use make an effective contribution to military action and whose destruction offers a definite military advantage.

Non-Privileged Combatants – although they have rights (limited/minimal), when captured, are not entitled to be treated as prisoners of war. - they do not form part of the regular or irregular forces but actually takes part directly or indirectly in the hostilities as:

☻ Civilians shall not be attacked!

a) spies

☻ In case of doubt, a person shall be considered a civilian.

b) mercenaries – ―soldiers for a fee‖/ soldiers of fortune

* Four Categories of Combatants: a) Regular Forces – members of the armed forces except medical personnel and chaplain. b) Irregular Forces – consists of the guerilla and the militia - they are treated as lawful combatants, provided: i) they must be under the command of an officer responsible for the conduct of his men. ii) they wear uniforms or insignia recognizable from a distance. iii) they carry arms openly. iv) they observe the laws and customs of war in the their hostilities.

conduct

of

c) Levee En Masse – civilians of an unoccupied territories who upon approach of the enemy forces and without having time to organize, spontaneously take up arms to resist the invading forces. - once captured, they are considered as combatants (not civilians) and will be treated as a prisoner of war. d) Officers and Crew of Merchant marine vessels who forcibly resist attack – once captured, they are considered as combatants and will be treated as prisoners of war.


☻ A soldier, not wearing uniform during hostilities, runs the risk of being treated as a spy; thus, not to be treated as a prisoner of war. BAR 1993: Reden, Jolan and Andy, Filipino tourists, were in Bosnia-Herzegovina when hostilities erupted between the Serbs and the Moslems. Penniless and caught in the crossfire, Reden, Jolan and Andy, being retired generals, offered their services to the Moslems for a handsome salary, which offer was accepted. When the Serbian National Guard approached Sarajero, the Moslem civilian population spontaneously took up arms to resist the invading troops. Not finding time to organize, the Moslems wore armbands to identify themselves, vowing to observe the laws and customs of war. The three Filipinos fought side by side with the Moslems. The Serbs prevailed resulting in the capture of Reden, Jolan and Andy, and part of the civilian fighting force. 1) Are Reden, Jolan and Andy considered combatants thus entitled to treatment as prisoners of war? NO. Reden, Jolan and Andy are not combatants because they are mercenaries. They offered their services to the Moslems for a handsome salary. They are soldiers of fortune. They are not members of the armed forces but took part in the hostilities. They are nonprivileged combatants and are not entitled to treatment as prisoners of war. 2) Are the captured civilians likewise prisoners of war? YES. The captured civilians are prisoners of war. They fall under the category of levee en masse. When the Serbian National Guard approached Sarjero, the Moslem civilian population spontaneously took up arms and resist the invading troops without having time to

organize. The Moslems wore armbands to identify themselves, vowing to observe the laws and customs of war. ☻ Civilian objects may not be attacked.

- the states at war are referred to as ―belligerent states‖ or ―belligerents‖

-using civilians to shield military targets is prohibited

- refers to international armed conflict (in this sense)

- it is prohibited for combatants to pose as civilians

the

a) state of war between two or more states

b) actual hostilities amounting to a civil war within a state

- starvation of civilians as a method of combat is prohibited

- there is just one single state here

- it is prohibited to attack objects that are indispensable to survival of civilian population

- refers to non-international armed conflict or simply internal armed conflict

- it is prohibited to attack dams, dykes, nuclear power plants, if such attack may cause severe losses among the civilian population.

(2.) Attacks or weapons which indiscriminately strike civilian and military objects and persons. And which cause excessive injury or suffering are prohibited. ☻ Specific weapons are prohibited. - it is prohibited to order or threaten that there shall be no survivors. (No Quarter’s Order – ―take no prisoners, kill all‖) (3) Civilians, wounded combatants and prisoners should be spared , protected and treated humanely.

simply

☻ In both instances, IHL applies.

☻ Belligerency in the sense of actual hostilities amounting to a civil war within a state presupposes the existence of rebel movement within a state.

* Stages of Development of a Rebel Movement within a State 1) Stage of Insurgency - earlier stage/ less developed stage - there is not much international complication as it is purely a matter of municipal law. 2) Stage of Belligerancy - higher stage of rebellion, when rebellion develops and becomes widespread

Hors De Combat – literally means ―out of combat‖ - disabled soldiers (4) Military and civilian medical personnel and facilities (hospitals, clinics, ambulances, etc.) must be respected and protected and must be granted all available help for the performances of their duties. * Concept of Belligerency

- already a matter of international law as there are now international implications. - when the rebels attain the higher stage, in effect, you are admitting that within a single state, there are now two competing governments – legitimate government and rebel government. - conduct of hostilities should now be governed by the laws and customs of war

- may be understood in two senses: - IHL will come into play


- captured rebels are considered combatants and must be treated as prisoners of war (they have rights)

Jus Cogens Norm - a peremptory norm of general international law

- third states are to observe strict neutrality in their dealings either with the rebel government or legitimate government ☻ Non-observance of IHL could lead to sanctions. * Minimum Conditions Before Rebels may Attain the Status of Belligerency

- a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.

1) if the rebels were able to organize a civil government that shall have control and direction over the armed struggle they are wagering against the legitimate government.

- recognized in the Vienna Convention on the law of treaties as a ground for invalidity and termination of treaties when they are in conflict with such norms.

2) if the rebels were able to occupy a substantial portion of the national territory.

☻ peremptory means mandatory. * Examples of norms considered as jus cogens in character

- occupation must be more or less permanent, such that to be able to dislodge the rebels, the legitimate the government must use superior force 3) seriousness of the struggle, such that it must be so widespread thereby leaving no doubt as to its possible outcome 4) if the rebels were able to observe the laws and customs of war

a) the prohibition against the use of force under the UN charter b) the law on genocide c) the principle of self determination d) crimes against humanity e) prohibition against slavery and slave trade f) piracy

- willingness on their part to observe * Two Functions of the Government: 1) Constituent – constitute the very bends of society

☻ A treaty entered into by two states agreeing to invade another state would have to be invalidated as it runs in conflict with a jus cogens norm – the prohibition against the use of force under the UN charter. Obligation Erga Omnes

Ex. Administration of justice Maintenance of peace and order Fixing the relations between husband and wife\

- it is an obligation of every state towards the international community as a whole. ☻ All states have a legal interest for its compliance, and thus all states are entitled to invoke responsibility for breach of such an obligation.

2) Ministrant ☻ IHL will not apply to international conflict but also to non-international conflict. (5.) The Law on Treaties


* Examples of obligations erga omnes - outlawing acts of aggression - outlawing acts of genocide

- there are always two states involved in an extradition * Treaty Making Process

a) requesting state – the state where the offenses was alleged to have been committed

1) Negotiation- undertaken directly by the heads of states but he now usually assigns this task to his authorized representatives.

b) surrendering state – the state where the fugitive sought refuge

2) Signature - when the negotiations finally decide on the terms of the treaty, the same opened for signature

☻ One of the characteristics or our criminal law is territoriality - we can only enforce our criminal laws within our jurisdiction.

- this step is primarily intended as a means of authenticating the instrument and for the purpose of symbolizing the good faith of the parties but it does not indicate the final consent of the state in cases where ratification of the treaty is required. 3) Ratification - power to ratify is vested in the President, subject to the concurrence of the state - the role of the senate, however, is only limited to giving or withholding its consent, or concurrence to the ratification. - this is the formal act by which a state confirms and accepts the provisions of a treaty concluded by its representatives.

* Fundamental Principles Governing Extradition 1) a state is under no legal obligation under international law to surrender a fugitive from justice absent an extradition treaty. 2) religious and political offenses are generally not extraditable. Attentat Clause – a provision in an extradition treaty which states that the murder or assassination of the head of a state or any member of his family will not be considered a political offense and therefore extraditable.

4) Exchange of the Instrument- signifies the effectivity of the treaty unless a different date has been agreed upon by the parties

3) a person extradited may only be charged and prosecuted in the requesting state for an offense which was the basis of the request for his extradition (Principle of Specialty)

☻ Where ratification is dispensed with, and no effectivity clause is embodied in a treaty, the instrument is deemed effective upon its signature.

4) unless otherwise stipulated in the treaty, the offense must have been committed in the territory of the requesting state.

☻ Executive Agreements are equally binding obligations upon nations

* Two Types of Extradition Treaty

- in international law, there is no difference between treaties and executive agreements in their binding effect upon states concerned, as long as the functionaries have remained within their powers.

1) Old type – contains a list of extraditable offenses

(6.) Extradition- regarded as a form of jurisdictional assistance in international law

2) Modern type – does not contain a list of extraditable offenses - also called a ―no-list treaty‖ - it merely provides that the offense must be punishable in both states

- resorted to by states nowadays to combat transnational crimes (crimes which defy national borders – drug cases, plunder, etc)

- it is not even required that the designation of the offense be the same in both jurisdictions. - follows the principle of double criminality

☻ Extradition may not be effected unilaterally.


Wright vs. CA - Mr. Wright is an Australian who had been staying in the Philippines for a long time already.

requesting. An extradition proceeding is similar to a criminal proceeding. Likewise, the initial evaluation stage in an extradition proceeding is also similar to a preliminary investigation in a criminal proceeding. * Strong dissenting opinion

- when he first came over, there was no yet extradition treaty between the Philippines and Australia

- this is no longer a case of due process; it is now a case of overdue process

- it was only much later when the two states entered into an extradition treaty

- what happens now to our obligations under the US-RP Treaty.

- when Australian government learned that Mr. Wright was in the Philippines, it requested that Mr. Wright be extradited to Australia to face trial for his alleged criminal offense therein.

SC: (decided October 17, 2000 by a 9-6 vote) reconsidered; controlling doctrine!!!

Extradition

- an extradition proceeding is sui generis * under PD 1069 (Extradition Law), jurisdiction over extradition cases is with the RTC.

- it is not a criminal proceeding which will call into operation all the rights of an accused as guaranteed by the Bill of Rights.

- during the extradition proceeding in the Makati RTC, Mr. Wright questioned the entire proceedings on the ground that it violates his right against ex post facto laws. SC: The prohibition against ex post facto laws under Section 22, Article III (Bill of Rights) applies only to criminal or penal laws. An extradition treaty is neither a criminal nor a penal law. It is a treaty. It may be given retroactive effect. Secretary of Justice vs. Hon. Ralph Lantion - Govt. of US requested the extradition of Mark Jimenez coursed through the Department of Foreign Affairs. - pursuant to PD 1069, the DFA transmitted the request to the DOJ for initial evaluation - when Mark Jimenez learned of the request made by the US govt for his extradition, he now requested the DOJ to furnish him copies of the basic request for his extradition and the supporting documents and evidence so that allegedly he can prepare for his defense.

- presumption of innocence does not apply - as an extradition proceeding is not criminal in character and the evaluation stage in an extradition proceeding is not akin to a preliminary investigation, the due process safeguards in the latter may not necessarily apply during the initial evaluation stage in an extradition proceeding. - this we hold for the procedural due process required by a given set of circumstances must begin with a determination of the precise nature of the government function involved as well as the private interest that has been affected by governmental action. - the concept of due process is flexible for not all situations calling for procedural safeguards call for the same kind of procedure. * Mark Jimenez is not entitled to the documents he was requesting only at the early stage of the proceeding. - eventually he will be furnished those documents at the of filing of the case before the court - the court must consider the more compelling state interest

-the DOJ refused SC: (decided January 18, 2000 by a 9-6 vote) Indeed there was denial of due process. How can you expect him to prepare for his defense if he will not be furnished copies of the documents he was


time

- the court applied the balancing of interest test in resolving issue

the

* Distinctions between extradition proceedings and criminal proceedings 1) the process of extradition does not involve the determination of the guilt or innocence of an accused. - his guilt or innocence will be adjudged in the court of the state where he will be extradited - hence, as a rule, constitutional rights that are only relevant to determine the guilt or innocence of an accused cannot be invoked by an extraditee especially by one whose extradition papers are still undergoing evaluation.

- this rule leans heavily in favor of state power as against fundamental freedoms. - abandoned!!! Ex. Speech – ―ibagsak ang bulok na gobyerno! Magrebolusyon tayo!‖ - the speech had a dangerous tendency of producing the substantive evil which the state is duty bound to prevent or suppress – the resulting revolution, death, injuries, chaos, were the substantive evils, even if it did not take place. - the arrest and dispersal of the rally will be justified under this rule.

2) an extradition proceeding is summary in nature while criminal proceedings involve a full blown trial 3) with respect to application of rules of evidence, criminal proceedings requires strict adherence to the rules of evidence while extradition proceedings follow the liberal interpretation rule. 4) in terms of quantum of evidence to be satisfied, criminal proceedings requires proof beyond reasonable doubt for conviction while a fugitive may be ordered extradited upon showing of the existence of a prima facie case (which is even lower than substantial evidence) 5) in a criminal proceeding, judgment becomes executory after having attained finality while in an extrajudicial proceeding, our courts may adjudge an individual to be extraditable but the President has the final discretion to extradite him.

2) Clear and Present Danger Rule - formulated by Justice Holmes (backed up by Justice Brandeis) - this is the more libertarian rule

- for the state to be justified in the curtailment or suppression of fundamental freedoms, it is not enough that the state is able to point out the substantive evil which the state is duty bound to prevent or suppress, but the substantive evil must be of a clear and present danger type.

* Judicial Approaches to Resolve Questions in Constitutional Law 1) Dangerous Tendency Rule

- this rule leans heavily in favor of the fundamental freedoms as against state power.

- for the state to justify the impairment or suppression of individual freedoms, it is enough that the state is able to point out a substantive evil which the state is duty bound to prevent or suppress. - for as long as the speech or the expression has that dangerous tendency of producing the substantive evil which the state is duty bound to prevent or suppress, impairment of fundamental freedoms will be justified.


Ex. A group of demonstrators, unarmed, numbering 10,000 participated in by students, urban poor dwellers and religious members shouting ―ibagsak ang gobyerno!‖

- dispersal of the rally and arrest of the speakers will be unjustified - when you are in the middle of an open field and you shouted ―fire, fire!‖, you will not be arrested. - the state may be able to show the substantive evil which it is duty bound to suppress or prevent but such substantive evil is not of a clear and present danger type.

* The presumption now is that any act of the government alleged to have infringed upon or impaired fundamental freedom, such an act or measure comes to court with a heavy presumption of unconstitutionality. - so that the burden of justifying the act lies on the part of

* BP 880 – Public Assembly Act - under which, the orientation/policy to be observed by police officers in dealing with rallies and even in the dispersal thereof is maximum tolerance (the highest degree of restraint)

the government.

* Two Requirements for the Government to Justify the Act 1) by some compelling interest

- we therefore live in the era of clear and present danger

interest that will

- the government must be able to show a compelling justify the impairment.

rule 2) the measure must be narrowly drawn to preclude abuses Bayan vs. Ermita - if the CPR (Calibrated Pre-Emptive Response) policy adopted by the Arroyo administration in dealing with rallies and mass actions means no more than maximum tolerance as defined by BP 880, then it become a superfluity (no need for that; the policy has already been laid down by law).

- it must not be overbroad, does not suffer from vice of vagueness and it is not unreasonable (doctrine of overbreadth and void for vagueness doctrine).

JBL Reyes vs. Bagatsing - however, if the CPR policy means more than maximum tolerance as defined by BP 880, then it becomes unconstitutional.

☻classic example of Justice Holmes when he formulated the clear and present danger test - when you are inside a movie house and you shouted, ―fire, fire‖ naturally you will get arrested.


- Anti-Base Coalition applied for a permit to hold a rally in front of the US embassy.

- Mayor Bagatsing denied on the ground that it might be infiltrated which might cause violence.

SC: Mayor Bagatsing is wrong. Any act of the government alleged to have infringed upon fundamental freedoms comes to court with a heavy presumption of unconstitutionality. So that the burden now is on the part of the government to justify the act.

- this is but a soft restraint on his right to due process on that stage

fundamental

- there is no denial of due process for as long as fairness is observed.

3) Balancing of Interest Approach Government of USA vs. Judge Purganan these interests

- two equally desirable interest of society are colliding but are equally desirable to the society.

1) before a judge issues a warrant of arrest against a potential extraditee, prior notice and hearing is not required on two basis:

Sec. of Justice vs. Hon. Ralph Lantion a) first, statutory basis - there are two compelling state interests: a) the interest in the observance of due process

- under section 6 of PD 1069, once a petition for extradition is filed with the RTC, the judge will immediately issue a warrant of arrest.

b) the interest to comply with our treaty obligation. - the word used was ―immediately‖ SC: The more compelling state interest must be upheld to prevent the escape of potential extraditee which can be precipitated by premature information of the basis for the request of his extradition. always presumed

- especially since, in extradition, an extraditee is to be a flight risk

warrant of arrest

- this word would be rendered nugatory if the issuance of is set for hearing.

- arrest subsequent to a hearing is no longer immediate. - under PD 1069, the moment the extradition case is filed in court, the judge will immediately issue a warrant for his arrest. - the law could not have contemplated the word ―immediately‖ as a mere superfluity but as a means of inferring a sense of urgency. entitled to a copy of

- only when he is in custody of law will he be the documents. b) second, constitutional basis


- under section 2 of the Bill of Rights, prior notice and hearing was never a requirement for the issuance of a warrant of arrest

Govt. of HK special administrative region (represented by Phil. DOJ) vs. Judge Olalia (En Banc) - the ruling in Purganan should be re-examined - these remedies should include the right to bail

- on the contrary, the provision says after examination under oath of the complainant and the witnesses he may produce, not of the extraditee.

2) during the pendency of an extradition proceeding, a potential extraditee is not entitled to post bail; no bail rule applies. - under section 13 of the Bill of Rights and Rule 114 of the Rules of Court on bail, the word used was ―conviction‖

- in light of the various international treaties giving recognition and protection to human rights particularly the right to life and liberty, a reexamination of the court‘s ruling in Purganan is in order - especially the trend in international law where an individual is not merely considered as an object but rather a subject of international law and also in view of the Universal Declaration of Human Rights and the Covenant of Civil and Political Rights where the Philippines is a signatory and because of our commitment to human rights under the Constitution. - yet, for an extraditee to be allowed to post bail, he ought still the two requirements:

- hence, bail is only available to one who is arrested and detained for violation of Philippine criminal laws.

a) that once granted bail, he will not be a flight risk or a danger to the community; and b) that there exist a special humanitarian and compelling circumstance that will justify the grant of bail to him.

- it does not apply in extradition cases where the innocence or the guilt of an accused is not in issue.

- the burden of proving these requirements still lies on the part of the applicant by clear and convincing evidence. Clear and Convincing Evidence

- moreover, the right to bail flows from the presumption of innocence in favor of an accused in a criminal case. - however, by way of an exception, bail may be granted for as long as the following conditions concur: a) that once granted bail, the extraditee will not be a flight risk or a danger to the community; and

- a new standard of evidence adopted by the court lower than proof beyond reasonable doubt required in a criminal case but higher than preponderance of evidence required in civil case. - this is applied only in application for bail in extradition proceeding - in extradition proceedings, mere prima facie evidence is required.

b) that there exists a special humanitarian and compelling circumstances that will justify the grant of bail

FUNDAMENTALS OF INTERNATIONAL LAW

- the burden of proving these two requirements lies on the part of the applicant by clear and convincing evidence.

Relations between International Law and Municipal Law from the view of practice


* Two Doctrines 1) Doctrine of Incorporation - the generally accepted principles of international law automatically become part of their laws and will no longer require an enabling act from the legislative body. - the Philippines subscribe to this doctrine under section 2, article II of the Constitution, which provides that, ―the Philippines adopts the generally accepted principles of international law as part of the law of the land.‖ 2) Doctrine of Transformation - the generally accepted principles of international law does not automatically become part of their laws and will still require an enabling act from the legislative body.

* Examples of generally accepted principles of international law Pacta Sunt Servanda (treaties must be observed in good faith) - under the pacta sunt servanda rule, a state may not advance the provisions of its own Constitution, as well as that of its laws in order not to comply with its obligations under a treaty. - a state must make the necessary modifications to its laws in order to comply with its obligations in a treaty. Doctrine of State Immunity from Suit - a state may not be sued without its consent Doctrine of Sovereign Equality of all States - par in parem non habet imperium - all states are sovereign equals; an equal may not assume jurisdiction over another equal. Rebus Sic Stantibus (things remaining as they are)


- opposite of pacta sunt servanda Special Thanks To: ATTY. JOAN LOU P. GAMBOA For sharing her handwritten lecture notes in Political Law Review under Atty. Edwin Sandoval and for her generous support throughout the years to UST Law Batch 2009!!!

Political Law Review Notes (Atty. Edwin Sandoval) Prepared by

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